    [Senate Hearing 108-913]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 108-913

                      VISA ISSUANCE AND HOMELAND SECURITY

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

                                    HEARINGS

                                   before the

          SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY AND CITIZENSHIP

                                     of the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                          ONE HUNDRED EIGHTH CONGRESS

                                 FIRST SESSION

                                   __________

                 JULY 15, SEPTEMBER 23, AND SEPTEMBER 30, 2003

                                   __________

                              Serial No. J-108-24

                                   __________

             Printed for the use of the Committee on the Judiciary

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                               WASHINGTON : 2006
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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

                                     ------

          Subcommittee on Immigration, Border Security and Citizenship

                       SAXBY CHAMBLISS, Georgia, Chairman
    CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
    JON KYL, Arizona                     PATRICK J. LEAHY, Vermont
    MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
    JEFF SESSIONS, Alabama               CHARLES E. SCHUMER, New York
    LARRY E. CRAIG, Idaho                RICHARD J. DURBIN, Illinois
    JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
                      Joe Jacquot, Majority Chief Counsel
                      James Flug, Democratic Chief Counsel

                                C O N T E N T S

                                  ----------

                             TUESDAY, JULY 15, 2003
                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia..     1
    Cornyn, Hon. John, a U.S. Senator from the State of Texas........     3
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
      prepared statement.............................................   146

                                   WITNESSES

    Ahern, Jayson P., Assistant Commissioner, Office of Field
      Operations, Bureau of Customs and Border Protection, Department
      of Homeland Security, Washington, D.C..........................    21
    Dougherty, Michael T., Director of Operations, Bureau of
      Immigration and Customs Enforcement, Department of Homeland
      Security, Washington, D.C......................................    19
    Ford, Jess T., Director, International Affairs and Trade, General
      Accounting Office, Washington, D.C.............................     4
    Jacobs, Janice L., Deputy Assistant Secretary of State for Visa
      Services, Department of State, Washington, D.C.................    16

                             QUESTIONS AND ANSWERS

    Responses of Janice Jacobs to questions submitted by Senators
      Chambliss, Cornyn, Grassley, Kennedy, Sessions, and Schumer....    38
    Responses of Michael Dougherty to questions submitted by Senators
      Kennedy, Sessions, Durbin, Schumer, Grassley, and Cornyn.......    83
    Responses of Jayson P. Ahern to questions submitted by Senators
      Chambliss, Grassley, Schumer, Cornyn, and Kennedy..............   106

                           SUBMISSIONS FOR THE RECORD

    Ahern, Jayson P., Assistant Commissioner, Office of Field
      Operations, Bureau of Customs and Border Protection, Department
      of Homeland Security, Washington, D.C., prepared statement.....   117
    Dougherty, Michael T., Director of Operations, Bureau of
      Immigration and Customs Enforcement, Department of Homeland
      Security, Washington, D.C., prepared statement.................   122
    Ford, Jess T., Director, International Affairs and Trade, General
      Accounting Office, Washington, D.C., prepared statement........   126
    Jacobs, Janice L., Deputy Assistant Secretary of State for Visa
      Services, Department of State, Washington, D.C., prepared
      statement and attachment.......................................   140

                          TUESDAY, SEPTEMBER 23, 2003
                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia..   147
        prepared statement...........................................   188
    Kennedy, Edward M., a U.S. Senator from the State of
      Massachusetts, prepared statement..............................   190

                                   WITNESSES

    Brennan, John O., Director, Terrorist Threat Integration Center,
      Office of the Director of Central Intelligence, McLean,
      Virginia.......................................................   148
    Mefford, Larry A., Executive Assistant Director,
      Counterterrorism/Counterintelligence Division, Federal Bureau
      of Investigation, Department of Justice, Washington, D.C.......   150
    Parrish, William, Acting Assistant Secretary for Information
      Analysis, Information Analysis and Infrastructure Protection
      Directorate, Department of Homeland Security, Washington, D.C..   152

                             QUESTIONS AND ANSWERS

    Responses of Larry A. Mefford to questions submitted by Senators
      Sessions and Schumer...........................................   170
    Questions submitted by Senator Kennedy to John Brennan, Larry
      Mefford, and Bill Parrish [Note: Witnesses responses were not
      received at the time hearing was sent to press, November 6,
      2006.].........................................................   181

                           SUBMISSIONS FOR THE RECORD

    Brennan, John O., Director, Terrorist Threat Integration Center,
      Office of the Director of Central Intelligence, McLean,
      Virginia, prepared statement...................................   185
    Mefford, Larry A., Executive Assistant Director,
      Counterterrorism/Counterintelligence Division, Federal Bureau
      of Investigation, Department of Justice, Washington, D.C.,
      prepared statement.............................................   194
    Parrish, William, Acting Assistant Secretary for Information
      Analysis, Information Analysis and Infrastructure Protection
      Directorate, Department of Homeland Security, Washington, D.C.,
      prepared statement.............................................   198

                          TUESDAY, SEPTEMBER 30, 2003
                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia..   203
        prepared statement...........................................   249
    Cornyn, Hon. John, a U.S. Senator from the State of Texas........   204
    Craig, Hon. Larry E., a U.S. Senator from the State of Idaho.....   217

                                   WITNESSES

    Harty, Maura, Assistant Secretary for Consular Affairs,
      Department of State, Washington, D.C...........................   207
    Hutchinson, Asa, Under Secretary for Border and Transportation
      Security Directorate, Department of Homeland Security,
      Washington, D.C................................................   205

                             QUESTIONS AND ANSWERS

    Responses of Maura Harty to questions submitted by Senators
      Chambliss, Grassley, Kennedy...................................   225

                           SUBMISSIONS FOR THE RECORD

    Harty, Maura, Assistant Secretary for Consular Affairs,
      Department of State, Washington, D.C., prepared statement and
      attachment.....................................................   251
    Hutchinson, Asa, Under Secretary for Border and Transportation
      Security Directorate, Department of Homeland Security,
      Washington, D.C., prepared statement...........................   256

       VISA ISSUANCE, INFORMATION-SHARING AND ENFORCEMENT IN A POST-9/11
                         ENVIRONMENT: ARE WE READY YET?

                                  ----------

                             TUESDAY, JULY 15, 2003

                                  United States Senate,
       Subcommittee on Immigration and Border Security, of the
                                    Committee on the Judiciary,
                                                       Washington, D.C.
        The Subcommittee met, pursuant to notice, at 2:35 p.m., in
    room SD-226, Dirksen Senate Office Building, Hon. Saxby
    Chambliss, Chairman of the Subcommittee, presiding.
        Present: Senators Chambliss, Sessions, Cornyn, and Durbin.

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

        Chairman Chambliss. The Subcommittee will come to order.
        Last month, GAO issued a report titled ``Border Security:
    New Policies and Procedures Are Needed to Fill Gaps in the Visa
    Revocation Process.'' That title is still appropriate for
    today's hearing, even as we look more generally at the visa
    process.
        Overall coordination and information-sharing between the
    State Department and the Department of Homeland Security is
    essential to our national security after September 11. We must
    reshape our Government in accordance with the President's
    vision for homeland security, from the creation of a new
    department to the culture change away from old habits, and down
    to the details of interagency cooperation.
        The GAO report brings into sharp focus the lack of
    communication between the State Department's Consular Affairs
    and the Homeland Security Department's Bureau of Customs and
    Border Protection, as well as its Bureau of Immigration and
    Customs Enforcement. The report exposes how suspected
    terrorists may have entered the country even after their visas
    had been revoked.
        In this instance, terrorism is still illustrative of the
    underlying problem: policies and procedures must be adopted and
    formalized to stop immigration-related threats to our Nation's
    security.
        I understand the State Department has implemented a new
    code to inform our border inspectors in real time about visa
    revocations so that the information-sharing mistakes of the
    past won't be repeated. I applaud this progress, but it remains
    to be seen whether this code is itself the silver bullet to
    stop all terrorist threats.
        I am concerned that law enforcement is already hamstrung
    due to the lack of information-sharing, and that the use of the
    code alone may not address this problem. Several
    recommendations from the June GAO report remain unanswered, and
    today we will seek answers from the State and Homeland Security
    Departments on those and some other issues.
        Several of the issues that we will address today include:
    Is the State Department transmitting sufficient information on
    visa revocations, including information to assist immigration
    and law enforcement with removal or prosecution?
        When will the new Department, in accordance with the
    Homeland Security Act, takes its lead role in the visa process
    and formulate written policies and procedures? Are State and
    Homeland Security agencies sharing information fully enough to
    ensure that terrorists and other threats do not enter the
    United States and, in case they do, that action can be taken
    against them?
        It is important to establish policies that are clear and
    procedures that are institutionalized, whether in a memorandum
    of understanding between departments or with access to agency
    watch lists.
        One problem we saw after 9/11 was the lack of information-
    sharing either vertically within our Federal agencies, but more
    significantly horizontally across Federal agencies. It is not
    just keeping the bad guys out that is important. But when they
    do get here, anyone who has a suspicious background--we need to
    make sure that everybody is on the same wave length with
    respect to sharing of information on individuals in the right
    way.
        Today, we have before us GAO's expert in this area, Mr.
    Jess Ford. Mr. Ford authored the most recent June 2003 report,
    as well as its prequel, the October 2002 report titled ``Border
    Security: Visa Process Should Be Strengthened as an
    Antiterrorism Tool.'' We appreciate Mr. Ford being with us
    today to lay out the issues and the remaining problems.
        Our second panel includes the three key agency leaders on
    visa issuance, border security, and immigration enforcement:
    the State Department's Deputy Assistant Secretary for Visa
    Services, Ms. Janice Jacobs; within the Department of Homeland
    Security, the Assistant Commissioner for the Bureau of Customs
    and Border Protection, Mr. Jay Ahern; and the Director of
    Operations for the Bureau of Immigration and Customs
    Enforcement, Mr. Michael Dougherty. I appreciate all of you
    making yourselves available for today's hearing and we look
    forward to hearing from you.
        This issue of information-sharing has been of particular
    importance to me during my two years of service on the House
    Intelligence Committee. It was pretty obvious both before
    September 11, but more significantly after September 11, that
    we simply were not only not sharing information, but not
    sharing the right kind of information between agencies. Our
    failure to do that probably didn't allow September 11, or the
    incident of September 11 to happen, but certainly it lessened
    our opportunity to interrupt and disrupt that specific incident
    and other terrorist activity because of the fact that we were
    not sharing information between agencies.
        Before going to Mr. Ford, my colleague, Mr. Cornyn, is
    here.
        Senator Cornyn, if you have any comments that you would
    like to make before we hear from Mr. Ford, we will be glad to
    hear that at this time.

    STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF
                                 TEXAS

        Senator Cornyn. Just briefly, Mr. Chairman, thank you very
    much, and thank you for convening this important hearing. I too
    am anxious to learn about the status of our visa issuance and
    information-sharing and enforcement post-9/11.
        But there are other concerns beyond strictly the concerns
    about terrorist activity and terrorists coming into our country
    illegally, and whether we are doing the kinds of things that
    will allow us, in your words, to identify the bad guys and make
    sure they don't do us harm.
        Yesterday, the Judiciary Committee had hearings on free
    trade agreements that have been proposed with Chile and
    Singapore, and some immigration-related provisions of those
    free trade agreements which would create another category of
    entrant into this country, temporary professional workers
    outside of our traditional immigration system.
        As you and I have discussed, Mr. Chairman, on Thursday I
    filed a guest worker bill to hopefully begin to re-start the
    debate that had been put on the back burner for the last two
    years in the wake of 9/11 on how we deal with the huge number
    of people that we know are illegally in this country--we simply
    don't know who they are or for sure exactly why they are here--
    and a means to try to determine that, in addition to providing
    a lawful framework under which people who do want to come and
    work in this country can do so and provide the labor that
    frankly we need, and at the same time provide some protection
    against exploitation.
        My point is that I am concerned that our administrative
    process for keeping track of immigration and issuance of visas
    and information-sharing may not be up to the current task.
    Therefore, it causes me concerns about additional burdens that
    may be placed on our State Department and Department of
    Homeland Security in doing the other things that we need to do
    on top of just the mandate we have in a post-9/11 environment.
    Obviously, we want to make sure that our enemies cannot thread
    the cracks in a system that is not functioning as it should and
    threaten our homeland.
        So thank you for convening this important hearing and I
    look forward to hearing from this witnesses that you have asked
    to appear before the Subcommittee.
        Chairman Chambliss. Thank you, Senator Cornyn.
        We are going to be joined by other of our colleagues off
    and on during the hearing and it may be that some of them will
    want to have opening statements, which they certainly will be
    allowed to make at that point in time.
        Mr. Ford, we welcome you here today. We appreciate the work
    that you have done. We have read your report which has been
    very enlightening in any number of ways, and we look forward to
    hearing your testimony.
        Before doing so, as I indicated, we are now joined by one
    of our colleagues.
        Senator Durbin, if you have any opening statement you wish
    to make, we will certainly--
        Senator Durbin. I will waive it at this time.
        Chairman Chambliss. Okay.
        Mr. Ford, again, thank you for being here. We look forward
    to your testimony and you may proceed.

    STATEMENT OF JESS T. FORD, DIRECTOR, INTERNATIONAL AFFAIRS AND
           TRADE, GENERAL ACCOUNTING OFFICE, WASHINGTON, D.C.

        Mr. Ford. Thank you, Mr. Chairman, Members of the
    Subcommittee. I would like to have my full statement submitted
    to the record. I plan to briefly summarize my comments.
        Chairman Chambliss. Without objection. It will be
    appreciated.
        Mr. Ford. I am pleased to be here today to discuss our
    recent work on the visa process and some of the ways we believe
    this process could be strengthened as an important part of our
    country's border security strategy.
        Mr. Chairman, citizens of other countries seeking to enter
    the United States temporarily for business, tourism, and other
    reasons generally must apply for and obtain a U.S. travel
    document called a non-immigrant visa at U.S. embassies or
    consulates abroad before arriving at U.S. ports of entry.
        In deciding who should and should not receive a visa, the
    State Department and its consular officers must perform a risk
    assessment that balances the need to facilitate legitimate
    travel with the need to protect the United States against
    potential terrorists and to deter others whose entry is
    considered likely harmful to U.S. national interests.
        Since September 11, visa operations have played an
    increasingly important role in ensuring the national security
    of the United States. The Department of State, the Department
    of Homeland Security, and the Department of Justice, as well as
    other agencies, are involved in the visa process, with each
    playing an important role in making security decisions.
        My testimony today is based on two of our recent reports on
    the visa process that contained observations and
    recommendations on the ways in which national and border
    security could be strengthened through the visa process,
    implementation of clear visa policies and guidelines, and the
    sharing of information and data.
        The first report we issued in October focuses on the
    effectiveness of the visa process as an antiterrorism tool and
    recommended ways that the process could be strengthened. The
    second report, issued in June of this year, provides examples
    of how weaknesses in policy and interagency coordination on the
    visa revocation process are affecting border security.
        Our analysis of the visa process shows that the Departments
    of State, Homeland Security, and Justice could more effectively
    manage the visa function if they had clear and comprehensive
    policies and procedures and increased agency coordination and
    information-sharing.
        Our October report addressed the need for a clear policy on
    how the State Department and its consular officers should
    balance national security concerns with a desire to facilitate
    legitimate travel when issuing visas. It also discussed the
    need for more coordination and information-sharing to realize
    the full potential of the visa process.
        In addition, there is a need for more human resources and
    training for consular officers. We made several recommendations
    to the Department of State and the new Department of Homeland
    Security to improve this process, and the State Department has
    taken several actions to implement these recommendations.
        Our June 2003 report also pointed out that the U.S.
    Government does not have a clear and comprehensive policy on
    the interagency visa revocation process. This process should be
    used more aggressively to alert Homeland Security and law
    enforcement agencies that individuals who entered the country
    before their visas were revoked might be security risks.
        However, we found that the process broke down because
    information on visa revocations was not shared between the
    State Department and appropriate immigration and law
    enforcement offices. It broke down even further when
    individuals in question had already entered the United States
    prior to revocation.
        In our review of 240 visa cases that were revoked by the
    State Department from September 11 to the end of calendar year
    2002, we found numerous cases where notification of the
    revocation did not reach appropriate units within the former
    INS, now called the Bureau of Customs and Border Protection and
    the Bureau of Immigration and Customs Enforcement, and the FBI.
        We also found evidence that individuals whose visas were
    revoked because of terrorism concerns entered the United States
    and may still be in the country. We found that a lack of formal
    written policies and procedures may have contributed to a lack
    of timely notifications, posting of lookouts, and
    investigations of persons who may have entered the country.
        For example, INS said that it did not receive notification
    from the State Department in 43 of the 240 cases we analyzed.
    In another 47 cases, the INS lookout unit did not receive the
    information on a timely basis. We also identified at least 30
    cases where persons had entered the United States before their
    visas had been revoked. INS investigators were not always
    informed of these cases and therefore did not follow up on all
    of the cases.
        To remedy the weaknesses in the visa revocation process, we
    made recommendations to the Departments of Homeland Security,
    State, and Justice to develop specific policies and procedures
    to improve the interagency visa revocation process and to
    ensure prompt notification from the State Department to
    immigration and law enforcement agencies.
        We also recommended that a specific policy be established
    on actions that the immigration and law enforcement agencies
    should take to investigate and locate individuals whose visas
    had been revoked because of terrorism concerns. The Department
    of Homeland Security agreed with the thrust of our
    recommendations.
        Mr. Chairman, I would like to conclude my comments by
    reiterating the need that there must be clear, comprehensive
    policies and procedures governing U.S. visa processes to ensure
    that our borders are protected from potential terrorist
    threats.
        This concludes my statement. I would be happy to answer any
    of your questions.
        [The prepared statement of Mr. Ford appears as a submission
    for the record.]
        Chairman Chambliss. Mr. Ford, thank you very much. I want
    to start out by going back to your June 3 report, and on page 8
    you state in here, Homeland Security officials said that the
    issue of whether a visa revocation after an individual is
    admitted on that visa has the effect of rendering the
    individual out of status is unresolved legally.
        Can you tell me what was meant by that, and if that is
    unresolved legally, is there any action being taken to try to
    resolve that so that they will know what their power and
    authority is and can take action on that?
        Mr. Ford. Mr. Chairman, the issue that you refer to had to
    do with discussions that we had with the Department of Homeland
    Security and the Justice Department regarding the difficulty of
    actually removing an individual who had already entered the
    United States on a legitimate visa and then subsequently had it
    revoked.
        The discussion really focuses on whether or not there is
    enough legal basis to have that individual removed. The
    commentary that we had with the agencies essentially focused on
    the level of evidence that is required to have an individual
    potentially removed, and there is some disagreement between the
    State Department and DHS and, I believe, Justice over the level
    of evidence that is needed and whether or not they can easily
    remove an individual because they might have suspicions that he
    might be a threat to national security.
        Chairman Chambliss. At the June 18 hearing before the House
    Government Reform Committee, you testified that at the time
    neither the State Department nor Homeland Security had a
    specific policy on using visa revocations as an antiterrorism
    tool.
        Since the release of your June GAO report and that House
    Committee hearing, are you aware of any action taken by the
    departments to formalize policies or establish procedures, and
    if so, in what ways do these actions meet or fall short of GAO
    recommendations?
        Mr. Ford. Mr. Chairman, it is difficult for me to answer
    that question directly. The State Department did not comment on
    our recommendations in our report that we issued in June. At
    the hearing, you mentioned that they mentioned the new coding
    process that they put in place, and that had indicated that
    they had tested this process and based on those tests they
    indicated that the notifications were going to the appropriate
    authorities.
        We have not independently had an opportunity to verify that
    and we do not know at this time what changes, if any, they have
    made in their procedures related to the revocation process. We
    would like to see a little more information about what actions
    they have actually taken.
        Chairman Chambliss. Are you scheduled to do any follow-up
    with them in an oversight capacity?
        Mr. Ford. We have not been formally tasked with that by
    anyone in Congress. We are following up on some questions that
    the House asked us related to the chronology of events of our
    conversations with the Justice Department, but we have not to
    date been asked to follow up on that. We do routinely, however,
    follow up on our recommendations with agencies every 60 days.
        Chairman Chambliss. Well, after we hear testimony from the
    agencies today, we very well may want to give you a schedule to
    do that.
        In your June report, you state that INS and the FBI did not
    routinely investigate, locate, or take any action on
    individuals who might have remained in the United States after
    their visas were revoked. INS and FBI officials cited a variety
    of legal and procedural challenges to their taking action in
    these cases.
        What specifically were the legal and procedural challenges
    cited by the former INS, now Homeland Security, and have there
    been any efforts to overcome those?
        Mr. Ford. I would like to answer that in two ways. First,
    with regard to the issue of routine investigations, we had some
    subsequent discussions with the former INS officials that
    investigated these cases. They indicated to us that in every
    case where they had been notified by the lookout unit within
    the former INS or by State, they did, in fact, investigate.
        Our point was that many times those notifications were not
    reaching them, and as a consequence of that a number of the
    individuals that we had identified that may have entered the
    country they were not investigating because they hadn't been
    informed that these individuals were here or that they might be
    potential risks.
        The other issue that you mentioned really focuses on a
    comment I made earlier regarding legalities of the difficulties
    involved in trying to investigate, collect evidence, and remove
    individuals that might be suspected terrorists in the country.
    The discussion there really focused on the difficulty that they
    felt that they would have to make those cases.
        Chairman Chambliss. Thank you.
        Gentlemen, we have set the time at five minutes, but we are
    going to be liberal and we will go around as many times as you
    want to, but i thought we would just do it at five minutes so
    we can make sure everybody has an opportunity.
        Senator Cornyn.
        Senator Cornyn. Thank you, Mr. Chairman.
        Mr. Ford, I appreciate the work you have done which you
    have outlined. I guess I am trying to put this in a larger
    context. Did your study primarily have to do, as I understand
    it, with visa issuance policies and the level of coordination
    and cooperation between the different Federal agencies that
    were responsible for this process?
        Mr. Ford. Senator, we have two separate reports that I
    should make a distinction on. The report that we issued in
    October of 2002 was a more comprehensive review of the visa
    issuance process, primarily focused on the role of the State
    Department and its consular affairs officers overseas. That
    report really focused on a comparison of policies and practices
    prior to 9/11 and policies and practices after 9/11, and the
    differences in the way the department was focusing on the
    issuance of visas.
        The report in June that we issued is more involved with the
    interagency process of identifying visas that have been revoked
    and making sure that the information was provided to the
    appropriate domestic authorities, in this case law enforcement
    and immigration. So the second report really focuses more on
    the interagency process.
        Senator Cornyn. But your focus was on people who had
    actually applied for and received a visa, as opposed to people
    who have entered this country without even making any pretense
    at doing so through the legal process?
        Mr. Ford. That is correct. Our analysis was based on all
    cases where there was an illegal visa that was either reviewed
    and/or issued and later revoked.
        Senator Cornyn. I want to make sure I understand. Senator
    Chambliss asked you about, and I believe you addressed the
    question of what sort of evidence would be required to expel
    someone whose visa had been revoked, what that legal test might
    be or what they might have to prove in order to expel that
    individual. Is that correct?
        Mr. Ford. That is correct, and the issue here is that we
    felt that there was some disagreement between the State
    Department and the Department of Justice and DHS with regard to
    what level of evidence or test might be required.
        Senator Cornyn. Are you suggesting that the State
    Department or the United States of America or any of its
    agencies can't expel somebody whose visa has been revoked for
    any reason?
        Mr. Ford. Well, Senator, I have to tell you that I am not a
    lawyer. I can't really answer that directly because I can't
    tell you the level of evidence that is required. What I can
    tell you is that there was some disagreement between the
    agencies with regard to that level of evidence.
        In the case of the State Department, they felt that they
    needed a higher level of evidence in order to, for example,
    issue a visa. With regard to the Department of Justice, for
    example, in October when we reported on that issue, they felt
    that the level of evidence didn't need to be as high as the
    State Department. Now, we had recommended at that time that
    they get together and try to resolve that. I don't know what
    the current status of those discussions are.
        Senator Cornyn. Whatever the standard is, though, after
    someone who has entered this country on a visa--after that visa
    has been revoked, is there any question about our legal ability
    to expel that individual?
        Mr. Ford. Yes. My understanding is that the fact that the
    visa itself has been revoked is not a basis to have someone
    removed. That individual has due process and there has to be a
    process that they go through before they can be removed.
        The difference is that when an individual has their visa
    revoked prior to entering the country, my understanding is the
    law is clear that they can unilaterally be put back on a plane
    without any due process. Once an individual comes into this
    country legally with a legal visa and then subsequently has it
    revoked, there is some due process that has to occur. They
    cannot just be removed unilaterally.
        Senator Cornyn. Would it be different for somebody who has
    come to the country on a visa and then that visa is simply
    expired as opposed to being revoked? Do you know if there is
    any difference in the legal standard or what needs to be shown
    before they can be deported?
        Mr. Ford. My understanding is if the visa is expired, they
    can be removed or deported from the country.
        Senator Cornyn. Well, my understanding is that we have
    between 8 and 10 million people who have come to this country
    illegally and who are currently still in the country, most of
    whom have come to the country on some form of visa and have
    simply overstayed their visa. It has expired and they have
    stayed here.
        While I applaud the efforts that are being undertaken to
    try to identify those for whom a visa should never be issued or
    those who represent threats to the United States and whose
    visas should be revoked, my hope is that we will look at the 8
    to 10 million people who are here and try to figure out why
    they are here. Hopefully, they are all here for a good purpose
    and we can address that, but it seems like this is only
    scraping the surface of the true threat to our homeland
    security.
        Thank you, Mr. Chairman.
        Chairman Chambliss. Senator Durbin.
        Senator Durbin. Thank you very much, Mr. Chairman, and I
    would like to ask that my statement and a statement by Senator
    Leahy be made part of the record.
        Chairman Chambliss. Without objection.
        Senator Durbin. I would like to thank you, Mr. Chairman,
    for announcing at the outset that this is going to be a much
    more liberal Subcommittee from this point forward.
        [Laughter.]
        Chairman Chambliss. I have heard two judges for two days
    now.
        Senator Durbin. I also think that most Members of Congress,
    and certainly this Senator, should be given some opportunity to
    have several of my staffers on the Department of Homeland
    Security payroll, since 85 percent of my case work in Chicago
    is about immigration and visas. We spend more time on that than
    anything else. I don't profess expertise on it, but a lot of
    frustration, which is mirrored by my staff.
        Let me ask you, Mr. Ford, if I can--I want to put this in
    context. At one point here in the GAO report, you say 500
    million people enter the United States legally each year; 300
    million are non-citizens. I assume that means that those coming
    in from Canada and such obviously don't need visas.
        How many people come into the United States each year
    legally by visa?
        Mr. Ford. I believe in our October report, I believe it was
    10 million cases of non-immigrant visas, people that come in on
    non-immigrant visas.
        Senator Durbin. A temporary visa situation?
        Mr. Ford. Correct.
        Senator Durbin. And how many visa applications are denied
    each year?
        Mr. Ford. I don't have that information across the board. I
    can probably get it for you. I do know it varies by country,
    the denial rate.
        Senator Durbin. Incidentally, for my colleagues, if you get
    a chance, go to Mexico City and see how they handle it. They do
    at great job at our consulate there. I really want to salute
    them for what I think is a very humane and professional way
    that they handle visas for the people that go through that
    process.
        Let me ask you this. We asked 4 or 5 years ago for the INS
    and the Department of Justice to come up with some sort of a
    software or program that would keep track of people who have
    left the country, who were here on a legal visa and left, so we
    would have some sort of inventory at any given time about how
    many people were still here and their visas as far as we knew
    it had expired.
        Has that ever been done?
        Mr. Ford. I am not aware whether that has been done or not.
    Again, that is something I can check on and get back to you on,
    but I don't know the status of that.
        Senator Durbin. I think the answer is it has not been done,
    and I think it has been four years since we asked for it, to
    give you an idea that even before 9/11 this was something that
    seemed so obvious, so we would have some inventory of expired
    visas in the United States.
        So as I understand what you have in your report here, in a
    span of 16 months, September 11, 2001, to December 31, 2002,
    there were 240 visas revoked for terrorism-related purposes. Is
    that correct?
        Mr. Ford. That is correct.
        Senator Durbin. Which is about 15 a month, roughly?
        Mr. Ford. Roughly.
        Senator Durbin. You say that no notice was given to the INS
    of these revocations in 43 of the cases. Is that correct?
        Mr. Ford. That is correct.
        Senator Durbin. So the communications clearly broke down.
    The agencies that were supposed to be working together didn't
    work together in this instance.
        Then you have this other reference that 47 notices or
    revocation were sent by cable. When you say cable, I think of
    Western Union. In the world of e-mail, what is the world of
    cable all about?
        Mr. Ford. Essentially, the State Department has two ways
    they transmit the information that we are aware of. One is by
    fax. They fax the information to the appropriate lookout unit.
    The other option is cable or e-mail that they use to notify. In
    this particular case, they notified INS and the FBI.
        Senator Durbin. If I read your report correctly, they had
    better crank up their e-mail because it took 12 days to deliver
    it.
        Mr. Ford. Yes. Actually, that was the average. For those
    cases that were late, the average was 12 days. Actually, a
    couple of them it was over a month.
        Senator Durbin. Explain that form of e-mail to me that
    would take a month for delivery.
        Mr. Ford. I can't explain it. All I can tell you is that
    when we looked at the written record at INS and looked at the
    dates on it, the difference between the date that the visa had
    been revoked and the time they had received it was, on average,
    12 days.
        Senator Durbin. Not exactly a confidence-booster.
        I went through Dulles coming into the United States several
    months ago, and long lines waiting to go through. I suppose
    they are checking our names against a watch list. I suppose
    that is what it all about. Finally, when I got to my position
    in line, the lady said, I am sorry, Senator, to tell you the
    computers have been down all day; we are just making it up; we
    want to see if anybody is going to admit to being a terrorist.
        How often does that happen, that the computers break down
    so that the watch list can't be applied to the incoming people?
        Mr. Ford. I really can't answer that. I would have to defer
    to the administration on that. I don't know how often it breaks
    down. I have heard that it has.
        Senator Durbin. The thing that strikes me about this system
    is we are talking about legitimate travelers who are applying
    for visas and whether they will be suspected to be terrorists
    and somehow denied a visa or have a visa revoked. My guess is
    that the likelihood of a terrorist applying for a visa is about
    as strong as the likelihood of a fugitive going to the police
    department to report a change of address. It strikes me that
    this may not be the best way to stop terrorists from coming
    into the United States, and we still spend a lot of money doing
    it and clearly don't do it very efficiently.
        Thanks for your report. Thanks, Mr. Chairman.
        Chairman Chambliss. Just before we leave that on Senator
    Durbin's subject of communicating by cable or e-mail or
    whatever, are our computers not able to talk to each other
    between agencies?
        Mr. Ford. It is my understanding that they should be able
    to. The basic lookout systems--at least as far as the former
    INS and State Department, they are supposed to be compatible
    and they should be able to easily transmit the information.
        Chairman Chambliss. But it is still taking this period of
    time. Twelve days, I assume, would be an extreme situation, but
    it still takes that long to get information in the right hands?
        Mr. Ford. Well, our view is it shouldn't take that long.
    The cases where we said they weren't timely, those were the 47
    that I referred to out of the 240. The rest of them all were
    received within 24 hours.
        Chairman Chambliss. Senator Sessions.
        Senator Sessions. Thank you. I would like to pursue that
    general subject a little bit. As a prosecutor for a number of
    years, the burden of proof is a significant matter.
        Let's say that in a country that is known to have terrorist
    connections a person comes to the embassy and asks to be able
    to get a visa to come to the United States. That is what they
    would normally do, is it not?
        Mr. Ford. Yes. If they are required to have a visa, they
    have to go in and file and--
        Senator Sessions. Come in and ask for it. Well, let's
    assume at that point that the embassy approves it and does not
    have any negative information about the individual. Let's say
    later something comes out that one of the organizations that
    that person had been involved in had terrorist connections and
    it raised a question about that person's possible connection to
    terrorist activities. Now, this person is already in the United
    States. So now we have got a burden of proof trial to get them
    out of the country. Is that correct?
        Mr. Ford. That is my understanding, sir.
        Senator Sessions. Whereas, in the beginning, the embassy
    can reject them for virtually any reason they deem fit, any
    reasonable suspicion they may have. They have pretty much
    discretion, do they not?
        Mr. Ford. That is pretty much true, that is correct.
        Senator Sessions. And so to me that is a problem. I have
    thought about it for some time and thought it should have been
    in one of our terrorist bills, the PATRIOT Act that deals with
    this situation because as a matter of law--well, is this a
    statutory or a judicial decision that allows this person to
    have a presumption that they can stay in the country until it
    is overcome? Do you know if it statute or a court ruling or a
    regulation?
        Mr. Ford. I have been informed it is statute.
        Senator Sessions. I think, Mr. Chairman, we ought to look
    at that statute because, yes, you could say that. Before the
    world of terrorism, we could say that, perhaps, and it would
    work. But a person comes to America as a non-citizen by
    permission. They are here at the acceptance of the United
    States and they can stay here, and we allow more people to come
    to our country than any country in the history of the world has
    ever allowed to come to their country to visit and become
    citizens. But it is by our acceptance and it can be revoked, I
    think, at any time, but we have got this statute that is making
    it difficult.
        I will just say this. It is not a matter of burden of proof
    beyond a reasonable doubt. We have got millions of people
    coming to this country and who want to come to this country. If
    there is a 1 in 50 chance that this individual may be a
    terrorist, this country does not have to let them stay here.
    But we get into a court trial and I don't know exactly what the
    burden level is, but the net result of all of this is it
    overwhelms the INS, the State Department people, the FBI, and
    whoever is involved in handling the case, and they don't have
    time to do it.
        The problem with immigration law in America fundamentally,
    in my view, is we have the semblance of a legal system. We have
    a good group of law on the surface that appear to work, but in
    reality they are not working; they are just not working. We are
    getting overwhelmed and we are not able to act on the
    protections. For example, for terrorist activities, even if
    there is a marginal connection to terrorism, I think we ought
    to be able to ask that person to leave and terminate their
    tenure in the United States.
        Let me ask you a little further about some of the questions
    that Senator Durbin was pursuing. I am glad he asked that about
    why it took 12 days. Are you saying that it took 12 days before
    they really got it entered and pushed the button to send the e-
    mail, in effect?
        Mr. Ford. Our information is based on the lookout unit at
    the former INS. We compared that with the time that the
    revocation had been officially signed by the Department of
    State. When we say it took 12 days, that means that the INS
    lookout unit had not received the actual revocation, on
    average, 12 days from the time it had been revoked.
        Now, what that means is that theoretically an individual
    could have entered the country during that 12-day time frame
    who had a visa revoked, but INS wouldn't have known about it
    because they hadn't entered it into their lookout system yet.
        Senator Sessions. So a person that has a visa and then has
    it revoked--oftentimes, those people are not in the country and
    they will be coming into the country. Sometimes they are
    already here, are they not?
        Mr. Ford. Well, we found cases where visas had been
    revoked. We then went to INS, and through a couple of their
    databases we were able to determine that the individual had
    entered the country. In our report, we cited 30 instances of
    this. We have subsequently done a little more analysis. We
    think the number could be as high as 50.
        Senator Sessions. Out of 240 cases. Fifty out of 240 were
    entered, where if the system had worked properly they would not
    have been allowed to come in, or some may have already come in?
        Mr. Ford. They may have been able to stop some. In our
    analysis, we did find that when INS did, in fact, receive the
    information on a timely basis, they did, in fact, stop a number
    of individuals from entering. We identified 14 cases of that in
    our report.
        Senator Sessions. I am sorry, Mr. Chairman, if my time is
    up.
        Chairman Chambliss. We are being somewhat liberal, but not
    as liberal as Senator Durbin maybe would like for us to be. We
    are going to come back around, too, if you want.
        Senator Sessions. All right. Just on that subject, then,
    the whole deal here is if the information is somewhere in the
    computer in the sky, it is of no value unless it is in the
    hands of the person at the border. And that is difficult to do,
    but not impossible. Businesses do it everyday. If you get in
    trouble with your credit card, it goes on there within minutes,
    probably, and no more approval of your credit card. We ought to
    be able to do that with regard to this.
        I will yield--I won't yield back. I don't have anything to
    yield back, but I will stop.
        Chairman Chambliss. Mr. Ford, the fact of the matter is on
    those 47 cases where the average was 12 days for communication
    to take place, it probably just meant that the computers were
    talking to each other, but it sat in somebody's box for 11 days
    before they picked it up on the 12th day. Is that a fair
    assessment?
        Mr. Ford. To be honest about it, we don't know the cause.
    We just know that when we talked to the lookout officials at
    INS, they indicated that they just hadn't received the
    notifications on a timely basis. We viewed all 240 cases and
    the 47 that we referred to were a match between the date that
    the revocation occurred and the time that the INS had put it in
    their system. The reason that it was put in late--we don't know
    the reason for that.
        Chairman Chambliss. You made a comment on page 6 of your
    report that there will always be some cases in which the
    information arrives after the visa has been issued. I am
    assuming from that that you are referring to the fact that
    State continues to look at--even though they may issue a visa,
    State continues to look at those individuals and if they come
    up with something after the fact, they still are communicating
    that. Am I interpreting that correctly?
        Mr. Ford. That is correct, that is correct.
        Chairman Chambliss. With respect to the FBI's lack of
    concern about individuals whose visas were revoked because of
    terrorism concerns unless their names were on the TIPOFF, how
    significant is that, the fact that weren't on the TIPOFF list,
    but the FBI has been notified that an individual may have some
    suspicion of terrorist activity in his background?
        To me, again, that appears to be pretty significant. Am I
    wrong in that or am I correct?
        Mr. Ford. This actually raises an interesting issue. At the
    time we began our assessment of the visas and the 240 names
    that were referred to, those names were provided to us by the
    Department of State, and we had asked them to provide names of
    individuals that had their visas revoked because of some
    information that would indicate there could be some connection
    to terrorism.
        The FBI, when they testified in June, had indicated that
    their primary source of concern is a particular lookout list
    that they use, called TIPOFF, and that they felt that the 240
    individuals that we had in our survey--according to them, only
    47 of them were in the TIPOFF system, which is a system that is
    specifically designed to identify suspected terrorists.
        So they felt that the other individuals apparently were not
    of as much concern because they hadn't been identified through
    the TIPOFF system as a potential terrorist. So the issue here
    really gets into the manner in which the Department of State
    makes a determination to revoke the visa in the first place.
        We know that they did not always put those names into the
    TIPOFF system, and from the FBI's point of view if they are not
    in there, they are not of concern unless they get some other
    information from some other source.
        Chairman Chambliss. Senator Cornyn.
        Senator Cornyn. Mr. Chairman, I don't have any more
    questions for Mr. Ford. I just want to say, though, the more I
    hear about our immigration system, the more concerned I get.
        Chairman Chambliss. Thanks for those comforting words.
        Senator Durbin.
        Senator Durbin. Mr. Ford, one last question. Of the 240
    visa revocations, was that out of a universe of about 13
    million visas that were issued in that period?
        Mr. Ford. Actually, we were unable to get the universe of
    revocations. We were told that--
        Senator Durbin. The universe of visas issued?
        Mr. Ford. The number issued--I believe the number I cited
    was roughly 10 million, I believe, in 2002. I need to back up
    for a minute. These revocations were based on the screening
    process that the department had in place for particular
    individuals that they had a concern might have terrorist
    connections. So that 240 is--that is the reason they identified
    that number.
        Senator Durbin. Just so the record is clear, 10 million in
    2002, but there was a period of 2001 that was also included. So
    it would have included, I assume, 2 or 3 million others.
        Mr. Ford. The revocations covered from September 11 through
    the end of calendar year 2002.
        Senator Durbin. Okay, just roughly 10 or 12 million visas
    issued, 240 revoked because of terrorist concerns. Were there
    other visa revocations not for that particular purpose?
        Mr. Ford. Yes. Apparently, they have other types of
    revocations due to immigration concerns, things like that.
        Senator Durbin. Any idea of the number that were
    generally--
        Mr. Ford. We asked for a number. We were unable to receive
    a number. I don't think the department has a database that
    specifically captures all this information in one place. They
    have to pull it out of their overall universe.
        Senator Durbin. Mr. Chairman, if it is any encouragement to
    the Subcommittee, I think we have made fantastic strides at the
    FBI when it comes to computer capabilities. Director Mueller
    has done a fabulous job in a short period of time and I have
    every confidence that Director Ridge will, too. But we are
    still a long way from that interoperability that we need for
    these computer efforts to complement one another.
        Thank you.
        Chairman Chambliss. Senator Sessions, anything further?
        Senator Sessions. These 240 were all the revocations
    dealing with terrorism in that time period?
        Mr. Ford. That is our understanding, sir.
        Senator Sessions. And so, of those, in how many cases did
    the information promptly get to the border agents who would be
    in a position to make a stop if need be?
        Mr. Ford. Forty-three times, it is our understanding that
    the INS did not receive the notification.
        Senator Sessions. So the State Department--well, we don't
    know who dropped the ball?
        Mr. Ford. Right. The other 47 times I mentioned, they were
    provided, but not on a timely basis. So if you add the two
    together, that comes out to about 90 cases.
        Senator Sessions. And then the State Department did not
    enter 64 more into their--
        Mr. Ford. No. The State Department as part of their process
    also notify their overseas embassies because if the individual
    had not yet left, the embassies can try to check to find out if
    the individual is still there and notify them that their visa
    has been revoked. They had indicated to us that they routinely
    do that.
        Out of the 240, we had found that 64 of those were not in
    their lookout system, the State Department lookout system,
    called CLASS
        Senator Sessions. And was this difference in the State
    Department list and the TIPOFF list--do you know if that was a
    failure of communication between State and the FBI or a
    systematic evaluation of the cases that caused the FBI to not
    put them in TIPOFF?
        Mr. Ford. I believe it has to do with the amount of
    information that is available to the department to make the
    decision. They have indicated to us that they erred on the side
    of if there was any even limited information indicating there
    could be a potential problem that they were going to revoke the
    visa. I should add that the--
        Senator Sessions. The State Department has decided to
    revoke the visa for possible connections to terrorism. Yet, the
    FBI decides not to put them in their system?
        Mr. Ford. Well, actually, the TIPOFF system is a State
    Department. The State Department makes that decision.
        Senator Sessions. Okay. Thank you, Mr. Chairman.
        Chairman Chambliss. Anything further from anyone?
        Mr. Ford, thank you very much. Again, we appreciate your
    very diligent work and we look forward to staying in touch and
    following up on this down the road. Thank you very much.
        [The prepared statement of Mr. Ford appears as a submission
    for the record.]
        Chairman Chambliss. We would ask our next panel, Mr. Janice
    Jacobs, Mr. Michael Dougherty, and Mr. Jayson Ahern, to come
    forward, please.
        We welcome Ms. Janice Jacobs, Deputy Assistant Secretary,
    Visa Services, from the Department of State; Mr. Michael
    Dougherty, Director of Operations, Bureau of Immigration and
    Customs Enforcement, Department of Homeland Security; and Mr.
    Jayson Ahern, Assistant Commissioner, Bureau of Customs and
    Border Protection, Department of Homeland Security.
        I would say to each of you we know and understand that your
    job is a very difficult one. It has been made more difficult
    since September 11. We appreciate your contribution to the
    national security of the United States. We look forward to your
    statements. If you want to submit a written statement and give
    us a brief oral statement, we would welcome that.
        Ms. Jacobs, we will start with you. Thank you for being
    here.

     STATEMENT OF JANICE L. JACOBS, DEPUTY ASSISTANT SECRETARY OF
     STATE FOR VISA SERVICES, DEPARTMENT OF STATE, WASHINGTON, D.C.

        Ms. Jacobs. Thank you, Mr. Chairman, Members of the
    Subcommittee. I appreciate the opportunity to address you on a
    subject that all of us in the executive and legislative branch
    agree is crucial--the swift and proper exchange of information
    among relevant agencies controlling the security of our
    borders.
        The Department of State's visa work abroad constitutes the
    forward-based defense of the United States against terrorists
    and criminals who seek to enter the country to harm us. We have
    no higher responsibility, and we are determined to do this work
    in the best and most comprehensive manner possible.
        The General Accounting Office has issued a number of
    reports touching upon this subject, and the three that we have
    just heard GAO speak to are very familiar to us at State. We
    have found them to be thoughtful studies of a complex subject
    and we have learned from them and put many of their
    recommendations into effect.
        I have appended to my written statement a substantial list
    of actions taken since September 11 to strengthen the visa
    process along the lines suggested by GAO. Let me summarize them
    quickly here.
        We have doubled our database holdings on individuals who
    should not be issued visas, increased our training efforts to
    better apprise consular officers of counterterrorism concerns,
    set up special programs to more fully vet visa applicants of
    particular interest, and moved to increase staffing for visa
    positions abroad.
        Our training efforts have focused on needed
    counterterrorism expertise, and we have devoted much more time
    in senior training for ambassadors and deputy chiefs of mission
    to consular work and its responsibilities for senior managers.
    We have thoroughly reviewed consular procedures on visa work
    and begun a series of standard operating procedures cables to
    the field to codify the way in which we expect visa work to be
    consistently performed abroad.
        While you never achieve perfection in this area, I am
    confident that we have a much stronger visa process in place at
    our posts overseas than we had just one year ago and the
    country is safer for it.
        While security is our primary focus, we also realize that
    the U.S. economy counts on the billions of dollars spent each
    year by international tourists, our universities reap the
    economic benefits of preeminence among destination countries
    for international students, our scientific establishment
    flourishes in a climate of open exchange across borders, and
    our entire society is accustomed to living in a free and open
    manner that counts upon an ease of movement across
    international borders. We are determined to preserve these
    crucial benefits to the United States even as we work to
    strengthen the visa process' security.
        The GAO speaks of cultural differences as being among the
    chief reasons for variation in the sharing of watch lists among
    the Federal agencies. While I would not deny that cultures
    unique to a particular Federal agency or service do condition
    its work, I think that what the GAO really means is that the
    mission of each Federal agency is distinct and the need for and
    ability to use certain information is different among them.
        A consular officer abroad who has as much time as he or she
    needs to look over a visa applicant is in a much different
    situation than a port of entry inspector who has a few minutes
    to decide whether or not to admit an alien to the United
    States. Our consular officer can use information that is much
    less precise than the inspector would require, and a law
    enforcement officer in the United States will have somewhat
    different requirements than either of those two officials.
        While it is obviously right to err on the side of caution
    when dealing with potentially lethal security risks, we cannot
    eliminate every element of risk from our operations, and
    saddling certain officials with information that experience
    tells us they cannot use effectively either because of legal or
    operational requirements will not enhance our border security.
    These are questions without easy answers, but we believe that
    DHS is best placed to consider them and broker intelligent
    solutions based on the contributions of the interested
    agencies.
        The GAO correctly identified a problem in our failure to
    rapidly and certainly apprise our immigration and law
    enforcement agencies of prudential revocations that we had made
    based on intelligence and other source identifications of
    potential security threats. Our procedures were not
    sufficiently systematic and our notifications did not make use
    of the best our technology can deliver.
        We fixed this problem last year by creating a revocation
    code that is shared with the relevant agencies through the
    Interagency Border Inspection System, or IBIS, when a visa is
    prudentially revoked. Though it should have been fully
    operational in August of 2002 when we designed the code, it was
    put into place in December of that year and we have verified
    that each and every revocation for calendar year 2003 was
    properly coded and entered into CLASS and IBIS and was
    available in near real-time to our law enforcement and border
    inspection colleagues.
        A prudential revocation of a visa is a safety precaution
    that in security cases we undertake with a relatively low
    threshold of information to ensure that all relevant or
    potentially relevant facts about an alien are thoroughly
    explored before we admit that alien to the United States.
        It is a signal to the consular officer abroad to
    readjudicate the case with the new information at hand. In many
    such instances, we find that the information does not pertain
    to the alien whose visa was revoked, a mistaken identity due to
    incomplete identifying data, or that the information can be
    explained in a way that clarifies the question at hand and
    eliminates the potential threat. In these cases, we reissue the
    visa and purge the alien's name from the lookout system.
        The Department of State has advised the Department of
    Homeland Security that it is prepared to begin revoking visas
    effective immediately in cases of aliens who present a valid
    visa to an immigration inspector at a port of entry, but who
    DHS nevertheless stops for more in-depth inspection because of
    a potential security concern.
        We will institute this practice on a routine basis once we
    have developed implementation procedures with DHS. Meanwhile,
    we can consider cases on an individual basis. Making a
    revocation effective immediately when the alien is still
    undergoing port of entry inspection will allow DHS to use
    expedited exclusion procedures appropriate to the nature of the
    potential threat.
        A third situation arises if the alien has already been
    admitted to the United States. In this context, there is no
    legal precedent indicating that if a visa were revoked
    effective immediately, it would facilitate DHS' ability to
    remove the alien from the United States. For example, it is
    unclear what removal charges could be filed against the alien.
    We intend to discuss this matter further with DHS, as well as
    with the Department of Justice.
        I can assure the Subcommittee that in all of these areas we
    work hand-in-glove with our colleagues in law enforcement and
    Homeland Security. There are no cultural differences in each of
    our determination to make the United States safe from
    terrorists and criminals both for Americans and our foreign
    guests. We have made great strides in information-sharing and
    cooperation toward this end, but we clearly have a ways to go.
        I will be happy to answer any questions that you have.
    Thank you.
        [The prepared statement of Ms. Jacobs appears as a
    submission for the record.]
        Chairman Chambliss. Thank you very much.
        Mr. Dougherty.

      STATEMENT OF MICHAEL T. DOUGHERTY, DIRECTOR OF OPERATIONS,
     BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, DEPARTMENT OF
                  HOMELAND SECURITY, WASHINGTON, D.C.

        Mr. Dougherty. Mr. Chairman, Members of the Subcommittee,
    thank you for the opportunity to address you today and update
    you on the Bureau of Immigration and Customs Enforcement's
    efforts to combat terrorism, and explain our role in the visa
    revocation process, as well as our efforts to improve
    information-sharing within the Department of Homeland Security
    and with the Department of State on visa revocations and
    related national security information.
        No mission of the U.S. Government is more important than
    protecting the Nation and the American people against future
    attacks. That mission is the paramount responsibility of the
    newly created Department of Homeland Security, and the work of
    ICE is an indispensable part of fulfilling that mission.
        A very important, necessary requirement of fulfilling that
    mission is understanding in real time when the Department of
    State or another Government agency has developed information
    about or has taken action, including visa revocation, with
    respect to an individual who has entered the United States, but
    has not departed.
        Since September 11, the law enforcement community has risen
    to the challenge of increasing communications and following
    through on national security information-gathering,
    intelligence-sharing and dissemination. I am pleased to be here
    today to discuss one important part of ICE's role in
    safeguarding the homeland, and that is its role in
    investigating all referred visa revocation matters.
        Since this is the first time for ICE to have the
    opportunity to testify before the Subcommittee, I would like to
    take a brief moment to provide an overview of our mission.
        The Homeland Security Act of 2002 abolished the Immigration
    and Naturalization Service, and the President's reorganization
    plan established ICE. ICE combines the investigative and
    intelligence functions of the INS and the U.S. Customs Service
    with that of the Federal Protective Service. In addition, the
    President's plan merged the Air and Marine Division of the
    former Customs Service and moved the detention and removal
    program of the INS into ICE. The agency brings together 14,000
    new employees, including some 5,500 special agents.
        ICE has the broadest investigative authority in the Federal
    Government. Examples of our authority include investigating
    immigration violations, migrant and contraband smuggling, human
    trafficking, money laundering, trade fraud, export violations,
    and document fraud.
        Controlling the flow of goods and people within our
    country, verifying the authenticity of travel and identity
    documents, and monitoring illegal transfer of funds are
    functions critical to reducing our vulnerability to terrorist
    attacks. Meeting ICE's critical responsibility requires robust
    intelligence capability, air and marine ability, and the
    ability to apprehend, detain, prosecute, and remove illegal
    aliens.
        ICE today is poised to bring its new authorities and its
    new structure to bear in combatting terrorism, and in
    particular has a key role in the visa revocation process. The
    focus of this hearing today is on visa revocation and I would
    like to talk about how ICE is addressing this issue today and
    on a going-forward basis.
        On June 18, 2003, the GAO issued a report entitled ``Border
    Security: New Policies and Procedures Needed to Fill In the
    Visa Revocation Process.'' ICE appreciates the review and the
    comments made by GAO, while we disagree with some of its
    findings.
        We agree with the GAO that the Secretary of Homeland
    Security should work with the Secretary of State and the
    Attorney General to strengthen the visa revocation process as
    an antiterrorism tool and establish specific procedures and
    policies that ensure timely and direct notification of visa
    revocations to both the Bureau of Customs and Border Protection
    and ICE.
        ICE considers timely notification of DOS visa revocations
    to be an important element in protecting the United States
    against the entry of inadmissible aliens, including possible
    terrorists. DHS and ICE have begun a dialogue with the
    Department of State to modify existing procedures to strengthen
    the Government's ability to take timely action against those
    who have had visas revoked and should be removed from the
    United States. Specifically, the Department of State has agreed
    and is providing ICE with notice of visa revocations.
        The part of the GAO recommendations in its report that is
    particularly relevant to ICE is the one regarding determining
    if any persons with a revoked visa on terrorism grounds are in
    the United States, and if so whether they pose a security
    threat.
        In making these determinations, ICE relies on information
    from the Bureau of Customs and Border Protection to determine
    if these individuals have, in fact, entered and have, in fact,
    departed. DHS will work closely with the Department of State to
    implement new procedures which we expect will be agreed on
    related to management of visa revocations. One of the
    initiatives we are looking forward to is a secure electronic
    environment to share specific information about visa
    revocations, and in some cases including the specific basis of
    the visa revocation.
        Investigations of aliens who have been admitted to the
    United States but have had their visas revoked are handled from
    the ICE National Security Unit. ICE has well over 200 agents
    conducting thousands of national security investigations today.
    When information is received by the National Security Unit, it
    is handled in the same manner, whether it is a visa revocation
    matter or specific information regarding a terrorist threat.
        All of these matters are taken seriously and are fully
    investigated, and I would like to take a moment to make the
    record clear with respect to one aspect of the GAO report.
    ICE's records indicate that during the time period studied in
    the GAO report, the National Security Unit, in fact, received
    information on ten leads involving visa revocations. In all ten
    cases, the National Security Unit followed standard operating
    procedures for such referrals and found no derogatory
    information related to terrorism information. Four of those
    individuals were found to have been outside of the United
    States. Four were, in fact, in status. Two were not located,
    but it is the belief that they have departed the United States.
        Despite these facts, the GAO in its initial report
    erroneously reported that ICE did not routinely locate,
    investigate, or take any action on individuals with revoked
    visas. To the contrary, ICE has taken actions and investigates
    the cases it receives through the referral process.
        As highlighted in Appendix II of the GAO draft report, the
    different standards of proof required for revocation and
    removal proceedings do pose significant difficulties in
    resolving these matters. In this context, it is important to
    note that the information to revoke a visa is not necessarily a
    sufficient ground for ICE to initiate removal proceedings
    against an alien who has been admitted to the United States and
    is otherwise maintaining his or her visa.
        When an alien is admitted to the United States, there are
    certain legal rights and procedures which apply and are
    attached pursuant to the admission. These legal rights require
    ICE to present clear and convincing evidence to demonstrate
    that the alien is a national security threat or is removable
    from the United States on other statutory grounds. These
    hearings occur before an immigration judge.
        Another factor in prosecuting these revocation cases is the
    current language used on the revocation certificate. It
    provides that if an alien is present in the United States and
    the visa is revoked subsequent to admission that the revocation
    takes effect after the alien departs from the United States.
    Consequently, the visa remains valid and the alien maintains
    lawful status while in the United States absent any other
    conduct which would make the alien otherwise removable. DHS and
    DOS will work together to review the varying legal standards
    with respect to admission at the port of entry and for those
    aliens who have subsequently been admitted to the United
    States.
        In conclusion, I would just like to say that deterring
    illegal immigration and combatting immigration-related crime
    has never been more critical to our national security. We take
    this issue very seriously, and our mandate as part of the
    Department of Homeland Security very seriously as well. We are
    going to apply all of our resources and capabilities to the
    issue of looking at the visa revocation issue.
        Thank you.
        [The prepared statement of Mr. Dougherty appears as a
    submission for the record.]
        Chairman Chambliss. Thank you, Mr. Dougherty.
        Mr. Ahern.

    STATEMENT OF JAYSON P. AHERN, ASSISTANT COMMISSIONER, OFFICE OF
      FIELD OPERATIONS, BUREAU OF CUSTOMS AND BORDER PROTECTION,
           DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, D.C.

        Mr. Ahern. Mr. Chairman and Members of the Subcommittee, it
    is a pleasure to appear before you this afternoon.
        As you know, on March 1 immigration inspectors and the
    Border Patrol from the legacy Immigration and Naturalization
    Service, as well as inspectors from USDA, as well as inspectors
    from the United States Customs Service, merged to form the
    Bureau of Customs and Border Protection, which I will refer to
    as CBP, within the new Department of Homeland Security.
        Now, for the first time in our country's history, all
    agencies of the United States Government with significant
    border responsibilities have been brought under one roof. The
    primary mission of CBP is to prevent terrorists and terrorist
    weapons from entering the United States. This extraordinarily
    important priority mission means improving security at our
    physical borders and ports of entry, but it also means
    expanding our zone of security beyond our physical borders so
    that America's borders are the last line of defense, not the
    first line of defense.
        In sum, CBP's missions include apprehending individuals
    attempting to enter the United States illegally, stemming the
    flow of illegal drugs and other contraband, protecting our
    agricultural and economic interests from harmful pests and
    diseases, protecting American business from theft of their
    intellectual property rights, and regulating and facilitating
    legitimate trade. We must perform all of our important security
    missions without stifling the flow of legitimate trade and
    travel that are so important to this Nation's economy.
        As the single, unified border agency of the United States,
    CBP's mission is vitally important to the protection of America
    and the American people. In the aftermath of the terrorists
    attacks of September 11, numerous initiatives were developed to
    meet our twin goals of improving security and facilitating the
    flow of legitimate trade and travel.
        Our strategy in implementing these initiatives and
    accomplishing our twin goals involves a number of factors. I
    would like to list some of those. They include improving the
    targeting systems and expanding the advanced information
    regarding people and goods coming into this country; pushing
    our zone of security outward by partnering with some other
    countries, as we have done with our Container Security
    Initiative; again, pushing our zone of security outward by
    partnering with the private sector under an initiative known as
    the Customs-Trade Partnership Against Terrorism; and deploying
    advanced inspection technology and equipment at our ports of
    entry.
        While we have also increased the staffing at our border
    security ports of entry, we also want to continue to work very
    extensively with our partner agencies and we want to continue
    to find ways to integrate systems to improve business processes
    and information-sharing at the borders.
        CBP has an important role in the visa process in terms of
    information-sharing and enforcement. Identifying and preventing
    the entry of persons, whether they are using fraudulent
    documents or concealing their true intentions about the purpose
    of their visit, or because they have had their visa revoked, is
    a key responsibility of CBP at the ports of entry.
        CBP has reviewed the GAO report and its recommendations on
    the visa revocation process. This process is an extremely
    important element of protecting our country and we take the GAO
    recommendations very seriously. One recommendation of
    significant relevance to CBP is to ensure that we develop
    specific policies and procedures for the interagency visa
    revocation process to ensure that there are notifications for
    visa revocations for suspected terrorists and relevant
    supporting information transmitted from the Department of State
    to immigration and law enforcement agencies in a timely manner.
        Also of relevance in the GAO recommendations is to
    determine if persons with revoked visas on terrorism grounds
    are in the United States, and if so whether they pose a
    security threat. CBP provides the information regarding the
    entry or revoked visa-holders into the United States to
    immigration and customs enforcement investigators to assist in
    their investigation of the security risk that may be posed by
    such individuals.
        CBP has begun to work with the Department of State, with
    the Bureau of Citizenship and Immigration Services, and
    Immigration and Customs Enforcement to address the concerns
    raised by the GAO report. Since DHS now has a role in setting
    visa policy, CBP, ICE, and BCIS will work together to develop
    specific policies addressing the visa revocation process.
        DHS will work closely with DOS to implement these policies.
    Together, we will make sure that the procedures are in place to
    ensure timely agency notification so that revocations get into
    the lookout systems. We believe the electronic interface
    between the Department of State's CLASS system and our
    interagency border system, known as IBIS, provides the best
    solution and a transparent, verifiable record of actions.
        CBP has taken the initiative to work with DOS to find ways
    to improve this electronic interface to ensure visa revocation
    records are placed in the system for access by our CBP
    inspectors at the ports of entry in the United States.
        Again, CBP is committed to improving this process and we
    will continue to work with BICE, BCIS, DOS, and any other
    relevant agency to ensure better security for the American
    public. Protection of the Nation is our highest priority and we
    actively seek improvement in our own practices and we will work
    with other agencies to fulfill our mission. We know that our
    new agency faces great challenges in merging the border
    agencies and fulfilling both our priority and traditional
    missions.
        But now that the Federal inspection services, as well as
    the Border Patrol, have been unified within Customs and Border
    Protection under the Department of Homeland Security, we are in
    a far better position to meet these challenges and accomplish
    those goals. We will be far more effective working together
    than we were as separate agencies working in different
    departments, and we will learn all we can from our legacy
    agencies and we will bring new innovation to border management.
        Thank you for the opportunity to testify today and I will
    be happy to answer any questions you might have later.
        [The prepared statement of Mr. Ahern appears as a
    submission for the record.]
        Chairman Chambliss. Thanks to each one of you.
        Let me start with you, Ms. Jacobs. You mention that our
    consular officers are on the front lines, which we obviously
    all agree with, and that new guidelines have been issued to
    them since September 11.
        Have you also gone through significant retraining
    procedures relative to how to spot terrorists or potential
    terrorists? Also, in that same vein, I am curious about how
    those particular officers determine that an individual who
    walks into that door and says I am Joe Smith from whatever
    country they are in is, in fact, Joe Smith.
        Ms. Jacobs. In fact, we have done a lot of changes to the
    training that we give to consular officers, with a new focus on
    trying to give them a certain lever of counterterrorism
    expertise. The basic course that all consular officers go
    through before they go to the field is being extended from 26
    days to 31, beginning this October.
        Our Foreign Service Institute has already added a number of
    classes where they bring in experts on terrorism who can talk
    to the consular officers about current trends, things that they
    should look for, how to do analysis looking at passports, where
    they were issued, the dates they were issued. We have people
    from our own diplomatic security also coming in to talk about
    counterterrorism, but also fraud, in general, to try to raise
    awareness about those issues.
        We also have devoted a lot more time, and will have even
    more time spent on teaching our consular officers how to do
    better interviews. We are asking them to do more interviews now
    of visa applicants and we want to give them the training that
    they need to do an effective interview, and so we have
    contracted out with a company that is going to come in and
    really teach officers how to detect deception, how to really do
    an effective interview.
        We have developed new forms that certain applicants have to
    fill out. They give the consular officers more information
    about those particular applicants. If there are certain things
    that ring bells or raise flags, then the consular officer can
    follow up and look at that in more detail.
        We have also increased the number of security checks, the
    actual checks that we do on applicants. Everyone who comes in
    for a visa is run through our automated lookout system at the
    time of application. So if there is anything in that lookout
    system, which by the way has doubled in size since 9/11, that
    would either make the applicant ineligible or cause the
    consular officer any level of concern, then that case is sent
    back to Washington for an interagency review.
        We have other checks that have been put in place after
    September 11 that do the same thing. So we are checking more
    applicants. We have given consular officers more training,
    additional tools. We still are going to do more in the months
    to come.
        Chairman Chambliss. In checking those individuals'
    backgrounds, do you ask for fingerprints or any other way of
    identifying those individuals?
        Ms. Jacobs. For certain types of applicants, after 9/11 we
    have the FBI NCIC entries on foreign-born individuals who are
    in the NCIC system. If there is someone who is a direct or a
    close match, yes, we do fingerprints on those people and send
    the prints back here to be checked by the FBI to see if it is
    the same person who is in the lookout system. On the immigrant
    visa side, we do more fingerprinting of people. We will
    actually start collecting two fingerprints from all visa
    applicants beginning October 2004, as required in the Enhanced
    Border Security Act.
        Chairman Chambliss. What about biometrics? Are we using any
    technology in the area of biometrics?
        Ms. Jacobs. We have a few pilot posts where we are testing
    facial recognition. We have had some success with that. Our
    plan is to use the program that we have used in Mexico for the
    past few years to issue border-crossing cards, where we
    actually collected two fingerprints and a digitized photo on
    each applicant. That is the system that we are going to deploy
    worldwide by October 26, 2004. So at that point, we will
    definitely be able to confirm the identity of the people coming
    in.
        Chairman Chambliss. At a House subcommittee hearing on June
    18, one of your employees, Katherine Berry, testified with
    respect to the revocation of visas that the Bureau of Consular
    Affairs was, quote, ``engaged in an effort to formulate
    standard operating procedures that has been going on for more
    than 15 months and it should be wrapped up within a month,''
    close quote.
        According to that timetable, you have about run out of that
    month. Can you tell me where you stand with respect to any sort
    of formal memorandum of understanding between State and the
    Department of Homeland Security?
        Ms. Jacobs. For our own purposes, within State we have
    taken the rather informal procedures that existed at the time
    of the GAO report and put in place standard operating
    procedures. Those procedures are now going into our foreign
    affairs manual. I think the note has gone over to get that into
    our manual either yesterday or it went today.
        I can run through sort of step-by-step what we are doing
    today on revocations, if that helps. Basically, whenever we get
    information from--and this information usually comes from other
    agencies. Whenever we get information on any individual that
    suggests that the person is ineligible for a visa for terrorism
    or any other type of reason, we take action to revoke the visa.
        When we make that decision, we immediately put the
    revocation code into our lookout system, which is then shared
    with IBIS, which is the system that is available at the ports
    of entry. A certification of revocation is prepared which I
    sign. As soon as it is signed, it is faxed now to BCBP, to the
    National Targeting Center. At the same time, a telegram goes
    out to the posts, but it also includes DHS and FBI as addresses
    so that they know of the action that has been taken. If we know
    that someone is in the U.S. after a visa has been issued, then
    we also notice the Foreign Terrorist Tracking Force, the FTTF.
        As far as setting up standards or an MOU with the other
    agencies, I think we are all still talking about that. We
    haven't done a formal MOU. We are, of course, talking about an
    MOU with DHS on Section 428 of the Homeland Security Act that
    talks about how we are going to share the visa function.
        Chairman Chambliss. Well, I would just say that it sounds
    like you are making progress, but I mean here we are in the
    middle of July, in 2003, and I happen to agree with the
    comments in the GAO report that the lack of a formal process
    and procedure and memorandum of understanding between State and
    the Department of Homeland Security creates a systemic problem
    with respect to visa revocation.
        I think you need that written memorandum and I hope you
    will proceed to do it immediately so that everybody is on the
    same wave length and everybody in every single office knows
    exactly what is going to happen as soon as a revocation takes
    place. If we are going to give the people in this country the
    security they are demanding, that has got to happen.
        Senator Cornyn.
        Senator Cornyn. I just want to try to understand in the
    context of what happened on September 11 in terms of the
    revocation process and its implications for our national
    security today.
        In the case of two of the 9/11 hijackers, they were
    identified as possible terrorists. What you are saying is that
    if a visa has already been issued, it can be revoked, but those
    people can still lawfully stay in the country.
        Can you address that, Mr. Dougherty? I believe you were
    talking a little bit about that.
        Mr. Dougherty. Yes, Senator. When someone has been admitted
    to the United States, in the initial instance the Bureau of
    Customs and Border Protection will make a determination at the
    port of entry regarding admissibility. If they do not have the
    information available to them with respect to whether the
    person is inadmissible, perhaps, they are, of course, admitted.
        If information is subsequently brought to light that would
    cause the revocation of the visa, it matters entirely what the
    basis of that revocation was with respect to the options of ICE
    to remove the person. If the ground for revocation was specific
    information regarding membership in a terrorist organization or
    having engaged in terrorism or provided material support for
    terrorism, that may provide a legal basis for removal.
        If the ground was for some other reason--for example, in
    the context of the group of revoked visas that I believe were
    under review in the GAO report, those were prudentially
    revoked. In other words, to my knowledge and understanding,
    they were not necessarily revoked because of specific
    information with respect to a criminal act or a ground of
    inadmissibility, but in many or all cases were revoked because
    there was not sufficient information received back by the
    Department of State with respect to whether these people were,
    in fact, inadmissible. So they were prudentially revoked.
        For that population, for ICE to not understand the basis of
    the prudential revocation or not be provided with the specific
    ground for the revocation, we would have no legal standard.
        Senator Cornyn. So if it is revoked on the basis of a
    suspected terrorist connection, you used the word ``may'' be
    revoked. Why isn't it a certainty as opposed to ``may,'' and if
    it is ``may,'' how long does that legal proceeding take before
    you can expel them from the country?
        Mr. Dougherty. There are a number of factors. I said
    ``may'' with respect to providing a legal ground to pursue
    removal. The ``may'' stems from the strength of the
    information, the level of classification of the information,
    and in some cases whether we have the ability to present
    witnesses to support the information and whether we have the
    ability to declassify, working with our partners in the
    intelligence community, that information for use in the
    proceeding.
        If you satisfy several conditions in the context of an
    alien who has been admitted, you may, in fact, be able to prove
    a terrorism charge against that person.
        Senator Cornyn. So how long does all of this take?
        Mr. Dougherty. There is no time line. It is a legal
    process. There are confrontation rights. There are
    administrative proceedings. There is the presentation of fact
    witnesses, the presentation of documentary information. So
    these things can take a significant amount of time.
        Senator Cornyn. Are there any watch lists that are not
    shared with State and local law enforcement authorities? I will
    throw that out to any one of you. You can start, Mr. Dougherty.
        Mr. Dougherty. Senator, your question is are there watch
    lists that are not provided to State and local law enforcement?
        Senator Cornyn. Exactly.
        Mr. Dougherty. Speaking on behalf of ICE, I do not believe
    we maintain any watch lists that would not be shared. There may
    be other lists available in the U.S. Government and I just
    don't know how they are shared or not shared.
        Senator Cornyn. Ms. Jacobs, you were talking about the
    lookout watch list. Is that shared with State and local law
    enforcement authorities?
        Ms. Jacobs. We don't share the lookout information that we
    have because it is to help consular officers and others try to
    identify visa applicants who might be ineligible for visas.
    There has been discussion from time to time in trying to get
    the TIPOFF, the terrorist-related information that is in our
    lookout system into the hands of people who might be able to
    share that with local law enforcement agencies, and I think
    that discussion is ongoing. But certainly for our part, the
    State Department--we don't have any direct sharing with local
    law enforcement.
        Senator Cornyn. Well, I think Mr. Dougherty talked about
    the difficulties of expelling someone whose visa has been
    revoked either prudentially or based on concerns of connection
    with terrorism.
        If someone is on the TIPOFF list and comes into the U.S.
    and subsequent intelligence information makes it look like they
    are a significant security concern, are there other steps that
    are taken with regard to providing information to law
    enforcement other than revocation of that person's visa?
        Ms. Jacobs. Talking about TIPOFF specifically, any lookouts
    based on information received from other agencies that is part
    of the TIPOFF program goes into both our lookout system and
    into IBIS. So that information is automatically shared with the
    ports of entry.
        The revocation issue, I think, sometimes becomes a little
    bit complicated because we revoke visas for different reasons.
    I think part of the issue that was addressed in the GAO report
    has to do with prudential revocations, and perhaps if I could
    just describe sort of what a prudential revocation is, that
    might address some of the questions.
        Senator Cornyn. Let me try to rephrase the question and get
    to the point of my concern. The State Department, the
    Department of Homeland Security, and other Federal agencies,
    the FBI, generate important information and I want to know how
    much of that, whether it is the lookout list which you said is
    just mainly for consular use in determining whether a visa is
    actually issued--if somebody is on the TIPOFF system, whether
    that is made available to a police officer in Austin, Texas,
    who may come in contact with this person, or the Dallas County
    Sheriff. Is that information shared with local law enforcement
    officials like that?
        Ms. Jacobs. I think at this point in time, there is no
    mechanism in place to share that information. I think there are
    discussions going on about a more centralized system where, in
    fact, that information would be shared with local law
    enforcement agencies.
        Senator Cornyn. So we have got a suspected terrorist. You
    can revoke their visa if they are already in the country, but
    you may not be able to expel them unless you have got the
    evidence sufficient to actually prove it before an immigration
    judge. And we don't share the information currently with local
    or State law enforcement officials. Is that correct?
        Ms. Jacobs. To the best of my knowledge, that is correct.
        Mr. Dougherty. Senator, I could amplify on one procedural
    area which may address your concern. I understand there are
    discussions about providing the TIPOFF information to State and
    local law enforcement.
        However, today, through the Law Enforcement Support Center
    within ICE, State and local law enforcement officials who
    encounter aliens have a mechanism to inquire with respect to
    their alienage and deportability, whether they have a prior
    conviction, for example, and whether they have an order of
    deportation.
        Part of the procedures performed at the Law Enforcement
    Support Center would be to check all available databases. If
    there were, in fact, a lookout, it is my understanding that
    that lookout would be surfaced by the review done by the LESC
    and then appropriate action would be taken.
        Senator Cornyn. I am not sure I understood all that, Mr.
    Chairman, but I will certainly follow up at a later time. My
    concern is that there may be other law enforcement resources
    available either to observe the activities of someone who
    represents a national security threat and who, under current
    procedures, as you describe it, if that is correct, that we
    can't address beyond revocation of their visa but they still
    remain in this country pending further legal action and a
    substantial burden of proof that has to be made before an
    immigration judge.
        Thank you, Mr. Chairman.
        Chairman Chambliss. Well, I will tell you, Senator, I share
    that frustration.
        Folks, I know you all are working hard and you are doing a
    better job than what we were doing on September 10, but there
    is a mechanism to share that information. When I hear that we
    are not sharing information with respect to suspected
    terrorists whom we know are in the United States with State and
    local law enforcement officials, I don't mind telling you it
    infuriates me.
        There is a system in place through the FBI, through the
    NLETS system, where we can get that information in the hands of
    15,000 law enforcement agencies across this country
    immediately. For us to not be doing that today is not giving
    the best protection to the citizens of the United States. It
    just infuriates me that we are still not doing that.
        Senator Durbin.
        Senator Durbin. I concur with you completely, Mr. Chairman.
    I think all of our talk about homeland security means little or
    nothing unless State and local law enforcement is involved in
    it. If there is a problem in Illinois, they are going to call
    911, not Senator Durbin. If local law enforcement doesn't have
    the right information and resources, then it can't very well
    respond. I feel the same way you do about it.
        I would just ask the panel, and anybody can answer this, at
    any given time how many people are in the United States
    illegally? A rough guess, anybody, anybody?
        [No response.]
        Senator Durbin. Okay. How many are in the United States on
    expired or revoked visas at any given time?
        Mr. Ahern, isn't that your area of responsibility?
        Mr. Ahern. Not exactly. We are actually responsible for the
    admissibility determinations at the ports of entry, and once
    they have been entered into the United States, then that
    becomes--
        Senator Durbin. Ms. Jacobs, is that yours?
        Ms. Jacobs. Once someone has come into the States, we have
    no way to track their whereabouts. That usually is DHS'
    responsibility.
        Senator Durbin. Well, Mr. Dougherty, you are the last one
    in line here, so can you answer the question?
        Mr. Dougherty. I can answer with respect to what our
    responsibilities are.
        Senator Durbin. Numbers? Do you have any idea how many
    people in the United States at any given time are here on
    expired or revoked visas?
        Mr. Dougherty. I do not have the specific information with
    respect to that. There are, I believe, estimates out there
    which we would be happy to supply.
        Senator Durbin. If you want to ask your staff, this is not
    the final exam. so you can ask your staff. If anybody does
    know, I would like to put it on the record, if they do know.
    Maybe you can get back to me with that.
        Mr. Dougherty. We would be happy to get back to you, but I
    would also like to point out that there are significant
    organizational efforts ongoing within the Department of
    Homeland Security with respect to tracking the sorts of things
    that you are concerned about and that you raised in the prior
    panel.
        Specifically, you mentioned the area of entry/exit. We now
    have the U.S. VISIT system which has many components. ICE does
    not have responsibility for all of its components. CBP and
    others have responsibility as well, but it is an effort to
    understand who has been admitted lawfully, understand what they
    are doing here while they are here, and understand when they
    leave and tracking those who do not leave in a lawful manner.
    So I hope that some of your concerns are addressed in that
    respect.
        Senator Durbin. And I hope someone on the panel or all of
    you will get back to me with that information, because I think
    this really gets down to the heart of it as to what we are
    dealing with here--how many people are in the United States at
    any given time illegally, undocumented, and how many people are
    here on expired or revoked visas--so we have some kind of idea
    of the universe we are dealing with here.
        We know how many visas we issue each year, do we not, Ms.
    Jacobs?
        Ms. Jacobs. Yes.
        Senator Durbin. And that would be in the range of 10
    million?
        Ms. Jacobs. This year, around 6 million.
        Senator Durbin. Six million this year, okay, six million.
    So if we know how many other people are here either on expired
    or revoked visas or without any documentation, we at least have
    an idea of the nature of our challenge.
        The administration decided some months ago to start asking
    people from certain countries, visa-holders, to come in and
    register, and they chose as their profile those who were from
    Muslim Middle Eastern countries. As I understand it, all of the
    visa-holders from those countries were asked to come in and
    register--I am sorry--adult male visa-holders were asked to
    come in and register.
        How many did come in and register under that program? Ms.
    Jacobs, do you know?
        Ms. Jacobs. I don't have the exact numbers. I believe that
    over 100 nationalities were registered, but I think either
    Justice or DHS might have the actual numbers.
        Senator Durbin. Does anyone from DHS know the answer to
    that?
        Mr. Ahern. I don't have the particular numbers as far as
    far as those who were involved as far as the NSEERS program, I
    believe you are referring to. But I would be happy to get some
    numbers and submit them to the record after, sir.
        Senator Durbin. Okay. Well, I am going to give you some
    numbers that I have heard, just speculative numbers, that some
    80,000 people registered and some 13,000 were deported as a
    result of it. It raises some important questions because if
    these Senators had the same experience I did, they got a lot of
    phone calls from people who said, my son was at college; he
    applied for an extension on his visa and he didn't get it and
    now he has been deported; what are you going to do about that?
        It is a good question and it is a question that has been
    asked of my office many times. It goes to the heart of the
    point made by the Chairman and by Senator Cornyn, too, the
    heart of their question and their statement about cooperation
    with State and local law enforcement.
        This is a little tricky because if the purpose of our
    endeavor here is to gather intelligence to try to forestall or
    thwart terrorism, we need the cooperation of a lot of people,
    including visa-holders who could be friendly to us and helpful
    to us. But if registering with our Government means being
    deported tomorrow, the likelihood that they will register and
    cooperate is diminished.
        I have run into this problem talking to people from the
    FBI. They know how to gather intelligence, but they can't do it
    by fly-specking every potential immigration violation and visa
    violation, and telling people they are going to be thrown out
    of the country. I think that is part of our challenge, is to
    try to strike that balance here where we get good intelligence,
    good information to thwart terrorism and try not to go too far
    toward Franz Kafka in the way we enforce it.
        Thank you, Mr. Chairman.
        Chairman Chambliss. Senator Sessions.
        Senator Sessions. Thank you. I think I have got a handle on
    this issue from the grass roots, having been involved in it
    personally, and I would have to say that the ICE group has been
    very supportive.
        Traveling around my State and talking to local law
    enforcement, like I have done for many, many years, I learned
    that they have no ability to participate in immigration
    enforcement at all. It may be shocking to most Americans to
    know that a police officer who catches a group of people that
    he has every reason to believe are here illegally basically
    does nothing. He lets them go.
        I ask, well, don't you call INS, the old INS? I guess it is
    now ICE. They said, no, they don't even bother. They told us if
    we have 18 or more to call them; otherwise, let them go. So you
    ask what about people who have been identified and connected
    with terrorism? Is this getting out to locals? And the answer
    is, no, it is not getting out there.
        We have got this list of databases; the consular lookout
    and support system not shared, according to this chart, with
    State or local agencies; TIPOFF not shared with State or local
    agencies. IBIS, Interagency Border and Inspections--is that
    IBIS?
        Ms. Jacobs. Yes.
        Senator Sessions. Not shared with local and State agencies,
    nor is the automated biometric identification. The truth is
    that our immigration agencies keep it a secret. You say, oh,
    they can access it. A local law enforcement officer in his
    automobile who makes a stop does not know how to access any of
    the immigration agencies. He knows how to access NCIC.
        So my first question, Mr. Dougherty, is could not you put
    in NCIC the names of the people that you think are wanted as
    terrorists, have revocations, who have skipped bond on
    immigration charges, or are otherwise illegally here? Could you
    not do that? And if you can't, why not?
        Mr. Dougherty. That is not a yes or no answer, Senator, so
    I would appreciate--
        Senator Sessions. Well, we only have 30 minutes. My time is
    running. First of all, it is not in there, is it?
        Mr. Dougherty. There are a variety of different types of
    individuals you have referenced.
        Senator Sessions. Well, let me ask you this one. Let's say
    a person has had his immigration revoked. He has had a hearing.
    He was released on bail and he skipped. Is that in the NCIC
    routinely if it is not a terrorist act?
        Mr. Dougherty. Today, someone who is in the middle of their
    proceedings who does not have a final order of removal or a
    warrant of deportation is not in NCIC.
        Senator Sessions. What about after the warrant has been
    issued?
        Mr. Dougherty. We are working to input all warrants of
    deportation for people who have not been removed into NCIC.
        Senator Sessions. When did you start that?
        Mr. Dougherty. I don't have the exact date. I know we have
    been working on it for some time.
        Senator Sessions. Well, it wasn't true September 10, was
    it?
        Mr. Dougherty. Senator, it may have been. I don't know.
        Senator Sessions. Let me get this straight because you are
    on the record and I would like a good answer about it. Are you
    telling me that you have a plan to put in the NCIC system every
    person that is in this country illegally for whom a warrant has
    been issued for their arrest for immigration violations?
        Mr. Dougherty. For warrants of deportation because they
    were here illegally or violated their status, that is correct.
        Senator Sessions. Is there any other kind of warrants other
    than warrants for deportation?
        Mr. Dougherty. For the administrative part of the
    Immigration Act, no. This is a warrant of deportation or
    removal.
        Senator Sessions. So how far along are you in doing that?
    What percentage do you have in there?
        Mr. Dougherty. I don't have the specific figures. I would
    be happy to supply them.
        Senator Sessions. You are here testifying at this
    Subcommittee. Don't you know how close you have gotten to
    achieving this event?
        Mr. Dougherty. I don't have the figures available to me.
        Senator Sessions. Ten percent, 90 percent?
        Mr. Dougherty. Sir, I don't have the figures. I will tell
    you, though, that I have testified before other bodies in
    Congress about various issues related to this subject, one of
    which is that--and the truth is out there on this subject--
    there are 300,000 people or so in this country who have final
    orders of removal who have not been removed.
        Senator Sessions. All right. How many people are in the
    NCIC now?
        Mr. Dougherty. As I said, I don't have those figures.
        Senator Sessions. A lot of them.
        Mr. Dougherty. We certainly have a project in line to get
    them entered.
        Senator Sessions. But they are going into NCIC today?
        Mr. Dougherty. Yes, a sub-file within NCIC, that is
    correct.
        Senator Sessions. And is that not a critical connection for
    local law enforcement so they can be participants actively in
    apprehending people who violate immigration laws?
        Mr. Dougherty. Absolutely, I agree with that, as well as,
    as I did mention before, the Law Enforcement Support Center
    where the patrol officer in his car, if he is aware of it, can
    contact ICE now through the Law Enforcement Support Center and
    get specific information about the immigration status of the
    person they have encountered, whether it is pursuant to an
    arrest or an encounter on the side of the road.
        Senator Sessions. And he has to access a separate system,
    and how does he do that?
        Mr. Dougherty. Well, in fact, I don't think he does have to
    have access through a separate system. I think it is through
    NLETS that there is a connectivity to the Law Enforcement
    Support Center, and I would be happy to provide the specifics
    of the connectivity back to this Subcommittee.
        Senator Sessions. It has got to be simple for an officer
    out there. With all the things he has got to worry about, it
    has got to be simple for them to be able to access this.
    Otherwise, you might as well not have it.
        What we found, Mr. Chairman, is that Florida went from
    doing four checks on your basic system--what is your basic
    system, the ICE system now?
        Mr. Dougherty. You are probably referring to the central
    index system.
        Senator Sessions. I think so.
        After Florida began to study this system and train people,
    they went from 3 inquiries into that system to 89,000--3, which
    is basically zero, to 89,000, in one year. In Alabama, they are
    training our State troopers, not our State police and sheriffs,
    for which there is a hundred for every State trooper. We are
    training our State troopers to access the system.
        We have created a system that has the appearance of
    working, but doesn't really work because for every ICE agent in
    America, there are at least 1,000 State and local agents. They
    are the ones out there on the streets and if they are not
    empowered to energize like you have said, Mr. Chairman, and
    connect to this system, we are not getting anywhere. I know you
    would like to do that because of the experience we have had
    with Alabama, and you would like to see that expanded, but it
    takes a lot of time and work.
        Mr. Dougherty. Senator, it is my understanding that last
    year there were in excess of 400,000 queries from State and
    local law enforcement to the Law Enforcement Support Center. It
    is central to our role.
        Senator Sessions. But 100,000 came from Florida, so you
    could have 4 million if everybody was working the system.
    Wouldn't you agree?
        Mr. Dougherty. There would be a large number, and we are
    committed to working with State and local law enforcement on
    that issue.
        Senator Sessions. Would you submit in writing to us how far
    along you have gotten in entering this information in NCIC?
        Mr. Dougherty. Yes, Senator.
        Senator Sessions. Thank you, Mr. Chairman.
        Chairman Chambliss. Mr. Dougherty, you mentioned in your
    response to Senator Cornyn earlier that there were 10 cases
    that you had investigated where revocation had taken place,
    where 4 of them you knew had left the country, 4 of them there
    were not sufficient violations, I believe you said to expel
    them, and 2 of them you didn't know whether or not they were in
    the country. That, too, is very troubling.
        I know, with six million last year--and I assume that is
    down, Ms. Jacobs, following September 11--it is difficult. As
    Senator Sessions says, it is a lot of work, but the 2
    individuals that Senator Cornyn referred to out of the 19
    September 11 hijackers, Alhazmi and Almidhar, who were put on
    the watch list, should have been on the watch list before they
    ever got in the country. They were put on in August of 2001 and
    we were unable to locate them, just as you have been unable to
    determine whether or not 2 of those 10, or 20 percent of those
    10 were located in the United States.
        I don't know what the answer is to that and I am not
    criticizing you or the system at this point, but we have got to
    be working toward a system that will allow us to keep up with
    those folks and to know where they are while they are here.
        The one visa system that we have that does allow us to do
    that, even though there are other abuses involved in it, but
    H1-B allows us to track them and we do track them, and we are
    very, very successful in tracking those folks under that
    program.
        Mr. Dougherty, the GAO report shows that BICE is hamstrung.
    The agency doesn't have the authority to remove a person based
    on a revoked visa alone even if the visa is revoked for serious
    security concerns.
        Are you confident that none of the 240 individuals that
    were identified in the GAO report are still in the United
    States?
        Mr. Dougherty. First, I would not agree with the
    characterization of the GAO, and I can expound on that later.
    With respect to the 240, as I have mentioned, we received
    notification of 10 and pursued those investigations.
        With respect to the two that you have mentioned that we
    have not been able to locate, we continue to look for them
    through a variety of means. It is not the case that initial
    inquiry was conducted and they were not located and we stopped
    looking. We continue to look for those individuals.
        We have received a continuing population of information
    with respect to revoked visas from the Department of State and
    determined that some subsection of those may have, in fact,
    been admitted to the United States and we are in the process of
    verifying whether they are, in fact, still here.
        I do not have available to me at this moment the breakdown
    of the progress on that. What I can tell you is we have a
    system in place to do it. We have a lot of organizational focus
    to do it, to find them and locate them. We view that all 5,500
    of our special agents are available to find people whom we want
    to find, particularly those who have had their visas revoked
    where there is some concern about a national security issue.
        When those people are encountered, there needs to be a
    case-by-case determination with respect to what legal authority
    ICE might have to remove them. I summarized some of the issues.
        Again, if the sole basis was on either classified
    information or a mix of classified and unclassified information
    with respect to terrorist activity, there are numerous
    procedures that must be gone through and certain legal
    standards which may be met.
        There are other instances where you may be able to
    establish some other ground of removal for a person who has
    been found to be here, like they did not comply with the terms
    of the visa. There may be derogatory information with respect
    to security concerns, but the person may not have followed the
    provisions of the visa and the purpose for which they were
    admitted to the United States. A good example of that might be
    a student who is out of status, a student who did not follow
    the course of study they said they would follow.
        Chairman Chambliss. Senator Grassley could not be here with
    us today, but he is the one who requested that the GAO report
    be done and he sent me a memo and has asked a couple of
    questions here. I want to take a minute just to go through that
    memo and to ask these two questions. The two questions are
    directed to Ms. Jacobs and Mr. Dougherty with respect to a visa
    revocation loophole that should be a security concern.
        Senator Grassley states that he remains frustrated and
    concerned about the lack of willingness to change the language
    on the revocation certificate. As the revocation certificate is
    currently written, Homeland Security officials do not have the
    authority to deport aliens whose visas have been revoked on
    terrorism grounds. This defies common sense.
        The certificate says that the revocation is effective
    immediately, quote, ``unless the alien is present in the United
    States at that time,'' close quote. Once here, they are
    untouchable unless there is a separate admissibility grounds.
        Last week, the State Department briefed Subcommittee staff
    and asserted that they have now decided to make no changes to
    the language. State Department officials said they have
    consulted with Homeland Security and have agreed to keep the
    certificate as is.
        Today, Senator Grassley received an official response from
    the State Department that gives, in his words, a weak
    justification for the current language. State says if an alien
    has been admitted to the United States, there is no legal
    precedent indicating that if a visa were revoked effective
    immediately, it would facilitate Homeland Security's ability to
    remove the alien from the United States. For example, it is
    unclear what removal charges could be filed against the alien.
        As an initial question, Senator Grassley would like to ask
    the Bureau of Immigration and Customs Enforcement to state
    whether they are either okay with the current language or
    whether they would like to see it changed.
        Second, Senator Grassley would like the State Department to
    explain its rationale for not needing a change to the language
    in the post-9/11 environment, particularly if Homeland Security
    is saying that the change would help its enforcement mission.
        Mr. Dougherty, we will refer you to the first question.
        Mr. Dougherty. Senator, clearly it is a challenge to ICE to
    have a visa revoked for someone who has been already admitted
    to the United States and have to react to it. The clear
    language on the revocation provides for the fact that the visa
    will not be revoked until the person departs.
        The challenge for ICE for people who have been inspected at
    the border and admitted is that they are in a different legal
    posture than if they are knocking on the door at the port of
    entry. There is law, regulation, and significant case law with
    respect to the legal procedures that have to be followed and
    the rights that those people have.
        That being said, it does pose a complication for our
    enforcement operations. Today, as I have said, we have to
    pursue removal proceedings if there is a legal basis to do it
    based on national security information, information that they
    are tied to a terrorist organization, that they have committed
    a crime they didn't disclose prior to entry, or committed a
    crime subsequent to entry, or a variety of other things that
    would have made them subject to removal.
        If there were an environment in which the visas were
    revoked retrospectively such that they would have been
    inadmissible at the time of entry, then we believe from a legal
    point of view that it would improve our ability to remove these
    people. This is highly subject to legal interpretation and it
    will require legal judgments.
        But again, to reiterate, if there were a situation where
    the revocations could be made retroactively, effective as if
    they had been revoked at the time the alien was admitted, we
    believe it would improve our enforcement posture.
        Chairman Chambliss. Do you have any authority to
    incarcerate individuals who are suspected of terrorist activity
    after they are admitted, when you find out that information
    subject to them being admitted?
        Mr. Dougherty. Yes, sir. I mean, there is broad authority
    within the Immigration Act that provides that.
        Chairman Chambliss. Is that PATRIOT Act authority or is it
    pre-PATRIOT Act?
        Mr. Dougherty. Pre-PATRIOT Act. It has resided in the
    Immigration Act for some time.
        Chairman Chambliss. Ms. Jacobs, I believe the second
    question is directed to you.
        Ms. Jacobs. Regarding the language used in the certificate,
    we are talking to DHS about different types of scenarios or
    situations that can happen. For example, if someone shows up at
    a port of entry and we have issued a visa and we didn't have
    any derogatory information at the time the visa was issued, but
    now that the person is at the port of entry knocking on the
    door to come in, suddenly the inspectors are aware of
    information that we didn't have before, we are willing to
    consider revoking that visa right at the port of entry to make
    it effective immediately in order to make it easier to have the
    person excluded from the United States. We, in fact, would
    change the language of the certificate at that time.
        We have talked to DHS about this. We want to set up
    standard operating procedures for doing it. In the meantime, we
    are willing to do it on a case-by-case basis. My understanding
    is we don't have a case yet where we have been asked to do
    that. As soon as we get one, we are going to be looking at that
    and we will be looking at the language used in the certificate.
        For people already in the U.S., the reason that we haven't
    changed the language in the certificate at this point is
    because of the legal issues involved about whether revoking a
    visa of someone already here in the U.S. is a ground for DHS to
    remove the person from the U.S. The lawyers are talking about
    that, and I think until we address some of the legal issues
    that there really wouldn't be a point in changing the language
    in the certificate.
        Chairman Chambliss. Well, thank you very much to each of
    you, and let me say, as I said earlier, you all have a tough
    job. You are on the front lines of fighting the war on
    terrorism and we are winning, and we are winning because you
    and your people are working hard. I hope you will convey to all
    of your staff and your employees how much we appreciate their
    dedication and the hard work they are doing.
        But at the same time, I hope you understand that there is a
    high level of frustration on the Hill with respect to a number
    of issues regarding homeland security, and in particular visas,
    and particularly with respect to the lack of information-
    sharing among our Federal agencies.
        I have a personal goal when I leave this place of making
    sure that when somebody walks into a Delta Airlines counter in
    any part of the world and buys an airline ticket that
    information automatically flashes up if there is any question
    about that individual. That information has got to come from
    your sources.
        We are long way away from ever getting to that point, but
    if we are going to give the people of this country the
    protection they demand and deserve, we have simply got to
    continue to work harder than ever to make sure that we are
    moving in the direction of gathering the necessary information
    and disseminating that information to the right people,
    including all the way down to the State and local level.
        Ms. Jacobs, you are exactly right. Your consular folks are
    on the front lines when it comes to letting people in this
    country. Once they get here, those folks at the State and local
    level are on the front lines and they need that information in
    order to be able to protect folks.
        So, again, thank you for the great work you are doing. This
    has been a very informative hearing. We appreciate you and we
    look forward to continuing to dialogue with you on all of the
    issues we talked about today.
        The hearing will be adjourned.
        [Whereupon, at 4:35 p.m., the Subcommittee was adjourned.]
        [Questions and answers and submissions for the record
    follow.]
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      INFORMATION-SHARING AND WATCHLISTING: CHANGES NEEDED TO PROTECT OUR
                                    BORDERS

                                  ----------

                          TUESDAY, SEPTEMBER 23, 2003

                                  United States Senate,
       Subcommittee on Immigration and Border Security, of the
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 2:39 p.m., in
    room SD-226, Dirksen Senate Office Building, Hon. Saxby
    Chambliss, Chairman of the Subcommittee, presiding.
        Present: Senators Chambliss, Cornyn, and Feinstein.

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

        Chairman Chambliss. The hearing will come to order. We are
    going to ahead and proceed. I understand Senator Kennedy is on
    his way. Gentlemen, I will tell you that at some point we may
    interrupt. If Senator Kennedy has an opening statement he
    wishes to give, we certainly are going to allow him to do that.
        Last July, this Subcommittee held a hearing entitled ``Visa
    Issuance, Information-Sharing, and Enforcement'' that focused
    on an absence of information flow among Federal agencies
    concerning visa revocations. In the post-9/11 world, we need to
    scrutinize every step of the process for those coming to the
    United States, from background checks to visa issuance, border
    protection to immigration enforcement.
        Today, we will look at the initial, often unseen step of
    watch-listing in order to ensure that the right information
    gets into the hands of those who keep potential terrorists and
    other criminals out of our country.
        One problem we saw after September 11 was a lack of
    information-sharing. A frustrating example of this failure to
    communicate was the State Department issuing visas to two of
    the dead hijackers 6 months after the attack. To address this,
    we have got to provide our folks on the front lines with more
    and better information to connect the dots by sharing
    intelligence among various agencies and to get the information
    out from overseas to the Federal level and down to the State
    and local level.
        We have made significant progress as a Nation in making
    America a safer place, although we still have a way to go. We
    created the Department of Homeland Security, separated and
    clarified the missions of immigration services and border
    protection, and unified Federal agency efforts to protect
    Americans in a comprehensive and coordinated approach.
        An example of improvements is in the intelligence
    community, with no strategies to gather and share critical
    information in an effective manner. Last week, the
    administration announced the creation of a consolidated watch
    list. Situated at the FBI, a new Terrorist Screening Center
    will merge the dozen different watch lists from nine Federal
    agencies into a single source that is accessible to consular
    officers, border protection officials, and law enforcement
    personnel.
        Homeland Security Secretary Tom Ridge announced the center
    will get information to our agents on the borders and all those
    who can put it to use on the front lines, and get it there
    fast. I have long supported a common watch list, but the key is
    to have a database that is accessible, up to date, and
    substantial. Along with a consolidated list, the State
    Department's TIPOFF database will be transferred to the multi-
    agency intelligence body, the Terrorist Threat Integration
    Center, or TTIC, which was created earlier this year. TIPOFF,
    which contains classified intelligence gathered largely from
    foreign sources, will become a main component of the
    consolidated watch list.
        But questions need to be answered. Why is the master watch
    list at FBI rather than Homeland Security? Why is TIPOFF being
    moved to TTIC rather than to where the master watch list will
    reside? How effective will the new Department of Homeland
    Security be if TTIC and the FBI control watch lists that are
    essential to visa issuance and border protection?
        Information-sharing and coordination among immigration-
    related agencies is essential to our homeland security and we
    must get it right. We recognize the importance of watch lists
    in the effort to keep out of the country certain persons who
    threaten the United States.
        We are pleased to have today testifying before us those who
    are integral in the new strategy for information-sharing and
    watch-listing: John Brennan, Director of the Terrorist Threat
    Integration Center; Larry Mefford, Executive Assistant Director
    for Counterterrorism and Counterintelligence at the FBI; and
    Bill Parrish, Assistant Secretary for Information Analysis at
    the Department of Homeland Security.
        Gentlemen, we welcome you here today. We look forward to
    your testimony and we look forward to dialoguing with you on
    where we are and how this new system is going to work. I don't
    know if you among yourselves have any preference of which order
    you go in.
        Normally, John, we would start on your end and move this
    way, and unless there is any disagreement otherwise, that is
    what we will do. So, John, welcome and we look forward to
    hearing from you.

       STATEMENT OF JOHN O. BRENNAN, DIRECTOR, TERRORIST THREAT
         INTEGRATION CENTER, OFFICE OF THE DIRECTOR OF CENTRAL
                     INTELLIGENCE, MCLEAN, VIRGINIA

        Mr. Brennan. Thank you, Mr. Chairman. I appreciate the
    opportunity to appear before you and the Subcommittee today.
        As members of this Subcommittee well know, a key ingredient
    to the U.S. Government's counterterrorism strategy is to ensure
    that the many Government agencies and departments involved in
    the war on terrorism work closely together and share threat
    information analysis to prevent terrorist attacks.
        The May 2003 establishment of the Terrorist Threat
    Integration Center, known as TTIC, is supporting this
    objective. Charged with the full integration of terrorist
    threat-related information and analysis, TTIC is a multi-agency
    joint venture that integrates and analyzes terrorist threat-
    related information collected domestically or abroad and
    disseminates information and analysis to appropriate
    recipients.
        To execute this complex mission, TTIC has both broad
    authorities and responsibilities in the realm of information-
    sharing. A formal directive issued by the Director of Central
    Intelligence known as DCID 2/4 in May of this year mandates
    that TTIC assignees with a need to know have unfettered access
    to terrorist threat-related information collected domestically
    or abroad. This DCID also directs TTIC to create a structure to
    institutionalize information-sharing across appropriate Federal
    agency lines.
        The DCID is supplemented by the Homeland Security
    Information-Sharing Memorandum of Understanding signed earlier
    this year by the Attorney General, Secretary of Homeland
    Security, and the Director of Central Intelligence. Among other
    things, this memorandum of understanding directs that a broad
    interpretation of mission and need to know be applied, that the
    use of originator controls be minimized, that maximum effort be
    made to reduce classification levels through the use of tear
    lines, and that modern, compatible information technology
    systems be utilized to speed the pace of dissemination.
        It is of critical importance to note, as specified in the
    DCID, that TTIC assignees will continue to be bound by all
    applicable statutes and executive orders, including those
    relating to the protection of constitutional rights and
    privacy.
        In order to implement this broad mandate for information-
    sharing, TTIC has undertaken several initiatives. We have
    partnered with other organizations, specifically the
    intelligence community, writ large, the FBI, and DHS, to form a
    joint program office to implement a systematic approach to
    interagency information-sharing. The task at hand is to ensure
    that all obligations enumerated in the Homeland Security Act
    and information-sharing MOU are met.
        In order to effect rapid information-sharing with a wide
    array of partners and customers, we also have established a
    classified TTIC online website which hosts information and
    analysis produced by TTIC and other U.S. Government
    organizations. This website reaches analysts and consumers at
    all major departments and agencies having a role in the war on
    terrorism.
        Over the coming months, we will be replicating TTIC online
    on less sensitive networks in order to provide terrorism
    information and analysis at a lower level of classification to
    a much broader customer set, including, through the FBI and the
    Department of Homeland Security, to the non-Federal family.
        Let me now address briefly the role TTIC plays in
    supporting the State Department's visa issuance program. DCID
    2/4 requires that TTIC maintain an up-to-date database of known
    and suspected terrorists accessible to appropriate government
    officials. Since its stand-up, TTIC has been developing a
    terrorist identities database that will incorporate everything
    the U.S. Government knows about such individuals. We have been
    working very closely with the Department of State and others
    over the last several months to ensure that this database is
    entirely compatible with the demands of the newly-announced
    Terrorist Screening Center.
        Homeland Security Presidential Directive 6 and the
    associated memorandum of understanding signed by Secretaries
    Powell and Ridge, Director Tenet, and Attorney General
    Ashcroft, have substantially improved the terrorist watch-
    listing process by creating the Terrorist Screening Center.
    Under this initiative, TTIC will become the sole provider of
    international terrorist identities information to the screening
    center. The FBI will be responsible for providing information
    on purely domestic terrorist.
        At the Terrorist Screening Center, Department of State
    representatives who will be able to reach back to TTIC's
    terrorist identities database will be able to provide the full
    level of support to the consular affairs visa issuance process
    at U.S. embassies and consulates abroad.
        In sum, Mr. Chairman, I believe that TTIC has already made
    significant strides in improving the sharing of critical
    terrorist-related information across the U.S. Government. I
    look forward to taking your questions.
        Thank you.
        [The prepared statement of Mr. Brennan appears as a
    submission for the record.]
        Chairman Chambliss. Thank you, Mr. Brennan.
        Mr. Mefford.

     STATEMENT OF LARRY A. MEFFORD, EXECUTIVE ASSISTANT DIRECTOR,
     COUNTERTERRORISM/COUNTERINTELLIGENCE DIVISION, FEDERAL BUREAU
       OF INVESTIGATION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

        Mr. Mefford. Thank you, Mr. Chairman, and thank you for
    inviting me here to testify today about this very important
    measure to better protect our Nation.
        I would like to take this opportunity to inform you of the
    ongoing cooperation between the FBI and the Department of State
    as it relates to the State Department's ability to access and
    use information from the FBI in making visa determinations and
    to further discuss the Terrorist Screening Center.
        The collection of information has always been a core
    function of the FBI's investigative mission, whether it
    involves criminal investigations, counterintelligence
    activities, or terrorist-related operations. However,
    historically, for a variety of reasons, the sharing of
    information tended to be case specific and oriented rather than
    enterprise-wide activity.
        With the advent of new legislation, revised Attorney
    General guidelines, and certain court decisions, new
    opportunities have given rise to strengthen and expand the
    FBI's intelligence capabilities, which in turn today allow the
    FBI to share this data to a greater extent with our
    intelligence and law enforcement partners nationwide, including
    State and local law enforcement agencies.
        Prior to the enactment of the USA PATRIOT Act, statutory
    restrictions limited the type of information the FBI was
    allowed to share with the intelligence community. Today,
    however, the FBI can share more information than ever before,
    and can do so more efficiently and with more value. This has
    resulted in several information-sharing initiatives.
        Today, there are 84 FBI Joint Terrorism Task Forces spread
    throughout the United States, with coverage in all major
    metropolitan centers of the Nation. These JTTFs, as they are
    referred to, are staffed with almost 3,000 police officers,
    sheriffs' deputies, Federal agents and investigators,
    representing over 25 independent Federal agencies and hundreds
    of State and local law enforcement agencies. Every JTTF
    officer, agent, and analyst has a top secret clearance today
    which allows those members unfiltered access to all of the
    FBI's information and databases.
        In addition to the local JTTFs spread throughout the
    country, the National Joint Terrorism Task Force is located at
    FBI headquarters. This entity interacts on a constant basis
    with the local JTTFs in information-sharing and coordinating
    activities. The NJTTF, as it is referred to, is comprised of 35
    separate Federal agencies, including the Department of State.
    To further facilitate information-sharing, the FBI has
    personnel currently stationed at the State Department, and the
    State Department has assigned personnel to the FBI's
    Counterterrorism Division at FBI headquarters.
        Today, the FBI's Terrorist Watch and Warning Unit, which is
    assigned in our Counterterrorism Division here in D.C. at FBI
    headquarters, works with the State Department on a daily basis
    to share information and assist in resolving name checks
    arising from visa applications overseas.
        An example, the State Department's Office of Consular
    Affairs routinely sends to the FBI possible name check matches
    for review as a result of overseas visa applications. These are
    individuals that are possibly involved in terrorist activities
    which we have detected as a result of these name check
    processes.
        These reviews are the result of a sharing of pertinent
    information from the National Crime Information Center and from
    the VGTOF file, which is the Violent Gang and Terrorist
    Organization File, which is a subset of NCIC today, with the
    State Department's Consular Lookout and Support System, known
    as CLASS.
        The FBI today has written procedures in place for notifying
    the appropriate FBI personnel to take specific action on all
    State Department cables concerning visa matters, to include
    security advisory opinions and visa revocations.
        These internal procedures include requiring that all State
    Department cables received by the FBI on a daily basis be
    uploaded into the FBI's electronic case file, allowing for
    full-text retrieval. When the State Department has a possible
    hit on a name in their CLASS database, they notify the FBI
    through what the State Department refers to as a Condor cable.
        This cable goes directly to the FBI's Record Management
    Division's National Name Check Unit, which is responsible for
    conducting both an electronic and manual name check of all FBI
    internal records. Pertinent information is run against the
    FBI's universal indices to ensure that we have conducted a
    thorough check.
        Today, the FBI has responded to over 97,000 visa Condor
    name checks submitted by the State Department. That number is
    since June of 2002. There are currently about 120 full-time FBI
    employees working in the Records Management Division assigned
    to the National Name Check Unit who are responsible to ensure
    that these checks are completed accurately and on a timely
    basis. This is a unit that was configured and staffed after 9/
    11 to fulfill this mission in response to this great need.
        The recently announced Terrorist Screening Center will
    consolidate all existing terrorist watch lists currently being
    used by the U.S. Government into a single function to provide
    accurate information to terrorist screeners around the country
    on a 24/7 real-time basis. This function will consolidate for
    the first time into one central location information that law
    enforcement, the intelligence community and the State
    Department already possess. Creation of the TSC, or the
    Terrorist Screening Center, does not create new law enforcement
    powers. The center will have no independent authority to
    conduct intelligence collection and/or operations.
        This integration of existing watch list functions of a
    variety of agencies will enhance the coordination, consistency
    and accuracy of ongoing efforts by creating a mechanism for
    one-stop shopping to be used by local, State and Federal
    officers, as well as by others who may have a need to retrieve
    this information.
        Creation of the TSC is the latest step in the ongoing
    process to improve our ability to identify suspected terrorists
    and to stop them before they can do us harm. It brings together
    such databases as the Department of State's TIPOFF system, used
    to vet visa applicants overseas; the Department of Homeland
    Security's transportation and border security lists; and the
    FBI terrorism watch list, contained in the VGTOF file in NCIC.
        All of these efforts reflect the FBI's recognition of the
    importance of an integrated terrorist database accessible to
    all of our partners in the criminal and intelligence
    communities. I want to emphasize to you that this issue has the
    full attention of Director Mueller and the FBI. The FBI
    appreciates the interest of the Committee in this matter. We
    look forward to working with you on this very important issue
    and we will answer questions when you are ready.
        Thank you.
        [The prepared statement of Mr. Mefford appears as a
    submission for the record.]
        Chairman Chambliss. Thank you very much, Mr. Mefford.
        Mr. Parrish.

     STATEMENT OF WILLIAM PARRISH, ACTING ASSISTANT SECRETARY FOR
     INFORMATION ANALYSIS, INFORMATION ANALYSIS AND INFRASTRUCTURE
       PROTECTION DIRECTORATE, DEPARTMENT OF HOMELAND SECURITY,
                            WASHINGTON, D.C.

        Mr. Parrish. Good afternoon, Mr. Chairman. I am delighted
    to be here, sir, and we appreciate the opportunity for the
    Department of Homeland Security to appear before you today to
    share our view and assessment of our role in the President's
    Terrorist Threat Integration Center and the emerging Terrorist
    Screening Center.
        I am the Acting Assistant Secretary for Information
    Analysis in the Information Analysis and Infrastructure
    Protection Directorate. Prior to assuming this position on the
    July 3 of this year, I was the senior Department of Homeland
    Security representative to the Terrorist Threat Integration
    Center. In this capacity, I served in a senior leadership
    position as the Associate Director for Homeland Security,
    working under John Brennan.
        Prior to my assignment to DHS, I served as the first
    Executive Director of the Office of Antiterrorism within U.S.
    Customs, and during that tenure in Customs I recognized the
    importance of information-sharing. It became very evident to me
    that it was a critical aspect in this war against terrorism.
        What I observed within our Government at that time was that
    once agencies' capabilities were clearly understood and how the
    information and intelligence would be used, information-sharing
    became a much easier process. For example, providing Customs
    inspectors with current watch lists of suspected terrorists
    allows for the collection of critical information that could
    contribute to the threat analysis and assessment process of
    connecting the dots.
        I continue to emphasize the importance of knowing the
    capabilities of other agencies and understand how they support
    the national effort in combatting terrorism. Both TTIC and the
    emerging Terrorist Screening Center will enhance this process
    of understanding the capabilities of other agencies.
        The Terrorist Screening Center will be an interagency
    effort administered by the FBI, with a DHS official serving as
    the principal deputy director. The Departments of Homeland
    Security and State, in addition to the Department of Justice
    and the intelligence community and other Federal agencies, will
    be represented in the Terrorist Screening Center.
        As a senior partner in the Terrorist Screening Center, the
    Department of Homeland Security will play a key role in
    developing the center's operational capabilities and policy
    direction. IAIP is very familiar with participating in
    interagency efforts through the TTIC program. Similarly, IAIP
    hosts the Homeland Security Operations Center, where we have
    multiple agencies and interdepartmental organizations
    represented in a 24/7 operations center. This exchange of
    information and recognition of agencies' capabilities has
    significantly enhanced the information-sharing and the flow of
    critical information in a timely fashion amongst our agencies.
        As you from the legislation passed by you, IAIP is unique
    among the U.S. intelligence and law enforcement elements in its
    authority, its responsibility, and access to information. IAIP
    possesses robust, comprehensive, and independent access to
    information relative to homeland security. It is collected both
    domestically and abroad.
        Our mission is to obtain that intelligence and provide the
    necessary analysis and assessment to ensure appropriate actions
    are taken to protect against terrorist attacks directed at the
    United States and our homeland, actions such as conveying
    threat information to State, local and private sector entities
    that will assist them in taking appropriate actions to detect,
    prevent, or disrupt potential terrorist acts.
        These partnerships of IAIP, established with TTIC and the
    Terrorist Screening Center, will further enhance the
    capabilities of our Information Analysis and Infrastructure
    Protection Directorate to better support our State, local, and
    private sector partners.
        Since assuming my position as the Acting Assistant
    Secretary for IA, I have initiated a program for our analysts
    to coordinate directly with analysts of the FBI, TTIC, and
    other members of the intelligence community. This exchange of
    liaison personnel and direct access to other analysts provides
    a face-to-face or a voice-to-voice connectivity that will
    provide essential connectivity to ensure information is shared
    until our IT systems are fully in place. I am confident that
    these work-around measures are succeeding in ensuring a timely
    and efficient flow of information both into and out of the
    Department of Homeland Security.
        Locating the Terrorist Screening Center within the FBI's
    Foreign Terrorist Tracking Task Force will allow for the
    initial stand-up in the near term and will enhance the
    detection and identification process of terrorists or suspected
    terrorists who are committed to killing Americans and altering
    our way of life.
        I thank you, sir, and each of your staffs for your
    dedication and for your support. Together, we will preserve the
    freedom and security of this great Nation. Sir, that concludes
    my remarks. I look forward to your questions.
        [The prepared statement of Mr. Parrish appears as a
    submission for the record.]
        Chairman Chambliss. Thank you very much to all three of
    you.
        Mr. Brennan, you mentioned the website. Is that website
    already up?
        Mr. Brennan. Yes, Senator, it is.
        Chairman Chambliss. Who has access to that website?
        Mr. Brennan. There are approximately 2,500-plus officials
    of the Federal Government right now at various departments and
    agencies that have access to it.
        Chairman Chambliss. And is it a secure website?
        Mr. Brennan. It is a secure website. It is at the top-
    secret level at this point.
        Chairman Chambliss. And did I understand you to say that
    your ultimate goal is to try to distribute that out to State
    and local officials, also?
        Mr. Brennan. No. What we are doing now is to put out the
    TTIC online website on less sensitive networks at the secret
    level, and also at the sensitive but unclassified levels,
    making that available to the FBI and to the Department of
    Homeland Security. The Bureau and the Department of Homeland
    Security have responsibility for sharing that information,
    then, with State and local law enforcement, as well as with the
    private sector. So it is through those mechanisms that we would
    do that.
        Chairman Chambliss. Mr. Mefford, I believe you said we are
    up now to 84 JTTFs?
        Mr. Mefford. That is correct, sir.
        Chairman Chambliss. Is there a CIA officer affiliated with
    each one of those 84 JTTFs?
        Mr. Mefford. Not with each one, sir. I believe the number
    is around 30 at this point.
        Chairman Chambliss. How do we do that, though? How do you
    integrate the FBI into those that don't have a direct officer
    affiliated with them?
        Mr. Mefford. There may be a part-time presence and there
    may be liaison officials that are designated so that we can
    share information broadly.
        Chairman Chambliss. Well, I guess you have answered my
    question. I wanted to make sure that there was information-
    sharing with all 84 JTTFs and with the FBI, the CIA and NSA.
        Mr. Mefford. Yes, sir. There is a layered system that has
    been created where the JTTFs locally around the country, some
    of which--I mentioned, I believe, it is approximately 30 that
    have full-time CIA presence, but there is the National JTTF at
    FBI headquarters here in D.C. which includes representatives of
    the U.S. intelligence community. So information is shared
    locally, regionally and nationally through FBI headquarters and
    the National Joint Terrorist Task Force.
        Chairman Chambliss. Mr. Parrish, I am obviously pleased to
    see the creation of this watch list. This is something I have
    supported for several years, including in my role as Chairman
    of the House Subcommittee on Terrorism and Homeland Security.
        A looming question is why is this master watch list not
    being situated at the Department of Homeland Security? An April
    GAO report recommended that DHS lead the effort. With visa
    issuance, border protection, and immigration enforcement
    authority now under one roof, do you think it makes more sense
    to have the consolidated watch lists also at DHS?
        Mr. Parrish. Mr. Chairman, Secretary Ridge, with other
    members of the Homeland Security Council, supports the initial
    stand-up of the center under the authority and the management,
    if you will, of the FBI. When you look at the capabilities that
    the FBI is developing within the Foreign Terrorist Tracking
    Task Force, I think the ability to rapidly stand up this
    center, as you indicate is so urgently needed, would be the
    place to effect that the quickest. The center looks to have an
    initial operating capability on December 1, bringing in the
    necessary connectivity to make this happen.
        The other aspect of it is the law enforcement functions of
    the FBI. Using an example, we may have a State or local officer
    that calls in. He has stopped someone who is run through the
    Terrorist Screening Center. It would require a law enforcement
    response, and as Mr. Mefford indicated, the JTTFs out there may
    be the ones that would immediately respond to that.
        At 180 days, there will be a review to see how the progress
    of the center is going. Again, we have a lot of operational and
    policy and procedure things to implement. At that same time, we
    will also assess and revisit the structure of where it is
    currently assigned. But the Department is a major player. The
    principal deputy director is from the Department of Homeland
    Security. We are probably one of the major users of the
    screening center, when you look at our border functions and the
    visa process.
        Chairman Chambliss. Mr. Brennan, if TTIC is an interagency
    intelligence body, why is the consolidated watch list not being
    placed there, particularly since TTIC is housed within the
    capabilities of the Director of the CIA?
        Mr. Brennan. Senator, TTIC is going to have the sole
    responsibility for maintaining this database on known and
    suspected international terrorists. So we will have that
    responsibility.
        TTIC reports directly to the DCI. The DCI, in fact, does
    not have any statutory authority to carry out a lot of the
    watch-listing and screening process functions. Therefore, I
    think it would be inappropriate for the DCI to be overseeing a
    center that would have to make decisions about who needs to be
    detained, who is going to be prevented from coming into the
    country, or what actions are going to be taken domestically
    here in most instances against U.S. persons and non-U.S.
    persons.
        So, again, from an intelligence database perspective, TTIC
    has the responsibility now under the new HSPD. We have that
    responsibility, but the actual decisions that need to be taken
    in the watch-listing and screening process, I think, more
    appropriately fall under other department leaders.
        Chairman Chambliss. Mr. Mefford, with the FBI maintaining
    the watch list now, who is going to make the decision of who
    goes on that watch list?
        Mr. Mefford. Currently, there is a working group between
    the participating agencies that is reviewing the criteria and
    the policies and procedures that will be in place effective
    December 1 of this year, when the screening center initiates is
    operations.
        Those policies, which will be derived from an interagency
    process, will dictate who gets entered, when a name is removed,
    and will put in place quality control functions to ensure that,
    for example, there continues to be a reason to have a name on
    the list. And if somebody ends up on the list that shouldn't be
    on the list, we can immediately remove that person. All of
    these specific details are being hammered out now and it is a
    work in progress.
        Chairman Chambliss. We know now, looking back pre-September
    11, that 2 of the 19 hijackers, Al-Midhar and Alhazmi, were
    placed on the then FBI watch list in August of 2001. We know,
    also, looking back, that the information that we had, although
    it was not properly shared between agencies, was that those two
    individuals attended the now famous Malaysia meeting in January
    of 2000. That, in part, led to their being placed on that watch
    list in August of 2001.
        Mr. Mefford, can you give me a quick synopsis or idea of
    how this new watch list would work? If we had the information
    on these two individuals in January of 2000, if this particular
    watch list had been in place at that time, how would it have
    worked and how would they have been placed on there and what
    would have happened from that point?
        Mr. Mefford. The names would have actually been placed on
    the list or a single system. The view of the terrorist
    screening system is that it will consolidate a variety of lists
    that exist today and systems that exist today so that we have
    one-stop shopping to maintain. For accuracy and consistency in
    policy implementation, we have one system.
        TTIC will provide the international terrorism names. The
    FBI will provide the names that are purely domestic in nature.
    The names will then be sent to the screening center and they
    will be immediately loaded into a system to which various
    customers will have a different level of access depending on
    the need, and that will all be defined by the policy.
        Today, if these names were placed on the watch list, for
    example, they would immediately be made available through NCIC,
    the National Crime Information Center, to every law enforcement
    agency nationwide, to every border security personnel in DHS,
    to the State Department TIPOFF system that they can use to vet
    visa applicants overseas.
        So if one of these individuals were stopped for a traffic
    violation by a local police officer today and they happened to
    run the name through NCIC, which police officials do--we are
    running about 4 million inquiries a day nationwide on the
    system, so it is a very robust system and it has a very
    aggressive capability. If the names were run by a police
    officer that had, let's say, casual contact with these
    individuals, which is routinely done, the name would pop up and
    give us an indication of where they are.
        Clearly, in the case that you mentioned, we were looking
    for those individuals after August of 2001 and if we had had a
    lead developed like that, we would have immediately reached out
    and contacted the police officer and tried to locate those
    individuals and hopefully asked the police officer to detain
    them until the JTTF personnel could get on scene.
        So one of the reasons at this stage of putting the
    screening center in the FBI is that the screening center would
    have a complementary relationship with the Foreign Terrorism
    Tracking Task Force which was established in October 2001 as a
    result of a presidential directive. That interagency task force
    is responsible for helping us find terrorists if they should
    enter the United States.
        Additionally, the screening center will be latched up with
    CT Watch, which is an FBI counterterrorism operations center at
    FBI headquarters here in D.C. that operates 24/7 and links up
    to the various joint terrorist task forces around the country.
    So the Terrorist Screening Center receives an inquiry from a
    local police officer that potentially they have Alhazmi or Al-
    Midhar stopped in a traffic violation. The center will
    immediately contact CT Watch, which will contact the local
    joint terrorist task force to immediately respond. The center
    will also give guidance to the local policy agency on what to
    do with these two individuals. It would give us, we think, a
    greater opportunity to obviously take proactive action to
    prevent and disrupt terrorist activity.
        Chairman Chambliss. One last question before I go to
    Senator Feinstein. Let's say Alhazmi enters the United States
    under the name of Joe Smith. How are we going to determine who
    he is?
        Mr. Mefford. Do you have a preference, Senator?
        Chairman Chambliss. Whoever can answer that.
        Mr. Mefford. Well, I can tell you that is clearly one of
    the challenges in the intelligence field, and it is very
    critical that we maintain a very accurate and thorough database
    of suspected and known international terrorists so that we can
    link known aliases with true identities.
        Mr. Brennan. The key challenge is to make sure that we have
    the analytic capability, as well as the intelligence that is
    able to associate that name, Joe Smith, with the known name of
    the terrorist. Terrorists are trying to circumvent security
    procedures and all of our watch-listing efforts, but as much
    robust intelligence that we have, as well as the analysis,
    then, that links those names, the better chance we are going to
    be able to stop individuals that are coming in under aliases.
        So this database, the watch list, and the Terrorist
    Screening Center, as well as TTIC, will have in there all of
    the known aliases or pseudos or whatever else that these
    individuals are known to go by.
        Chairman Chambliss. Senator Feinstein.
        Senator Feinstein. Thanks very much, Mr. Chairman. I am
    rather puzzled by this, because as I read the definition of the
    Department of Homeland Security, the responsibility is to
    access, receive, and analyze law enforcement information,
    intelligence information, and other information from agencies
    of the Federal Government. You are supposed to integrate such
    information in order to identify and assess the nature and
    scope of terrorist threats to the homeland, detect and identify
    threats of terrorism against the United States, and understand
    such threats in light of actual and potential vulnerabilities.
        It seems to me the CIA just won out and it is just going to
    put the Department of Homeland Security way out in left field
    as far as this information is concerned. The one thing that I
    have observed over the past years is that the CIA is not a good
    information-sharing institution, and for good reason. So I am
    really surprised that TTIC is placed under the CIA rather than
    Homeland Security.
        Can anyone respond to this?
        Mr. Brennan. Senator, yes, I can.
        Senator Feinstein. The reason Al-Midhar and Alhazmi didn't
    get identified in San Diego was because the CIA didn't pass the
    information on to the FBI. That is what happened there, as I
    understand it. If I am wrong, please correct me.
        Mr. Brennan. Senator, I must correct you because TTIC does
    not fall under the CIA. TTIC is not part of the Central
    Intelligence Agency. TTIC is a joint venture that is composed
    of members of the intelligence community, the Federal Bureau of
    Investigation, the Department of Defense, the Department of
    State, and the Department of Homeland Security.
        I report directly to the Director of Central Intelligence.
    I have no reporting chair that goes through the CIA. So TTIC is
    a multi-agency joint venture; it is not the CIA. So your
    statement that the CIA won out, I think, is incorrect.
        Senator Feinstein. How do you disconnect George Tenet from
    the CIA?
        Mr. Brennan. Well, I think as you know, Senator, George
    Tenet wears the hat of the Director of Central Intelligence
    that is composed of many intelligence organizations throughout
    the U.S. Government. He simultaneously wears the hat of the
    Director of the CIA, but he performs a lot of his
    responsibilities in his capacity as Director of Central
    Intelligence and TTIC reports directly to him in that capacity.
    I don't report through anybody in the CIA.
        Senator Feinstein. But he has no statutory and no budgetary
    authority over any of the other agencies outside of the CIA. So
    I don't understand why he was chosen as the individual rather
    than Tom Ridge, for example, where it seems to me is the
    Homeland Security Department that has the need to know, not the
    intelligence units of the Government.
        Mr. Brennan. The Department of Homeland Security, Senator,
    and the Information Analysis and Infrastructure Protection
    Directorate is a part of the intelligence community by statute.
    By statute of this Congress, it has made the Department of
    Homeland Security and its senior officials members of the
    intelligence community.
        So as the head of the joint venture of TTIC, I am part of
    the Department of Homeland Security, as well as part of the FBI
    and the CIA and others. I don't reside in any one of them. Bill
    Parrish, as he mentioned earlier, was my former Associate
    Director for Homeland Security within TTIC. So we are the
    embodiment within TTIC of those different missions and
    individual responsibilities because, by statute--
        Senator Feinstein. Who would you take your direction from?
        Mr. Brennan. I report directly to the Director of Central
    Intelligence, but I also believe I need to be equally
    responsive to Director Mueller, to Secretary Ridge, Secretary
    Powell, and Secretary Rumsfeld.
        Senator Feinstein. Where is that on a piece of paper
    anywhere?
        Mr. Brennan. In terms of what, Senator?
        Senator Feinstein. Your responsibilities?
        Mr. Brennan. My responsibility, as I mentioned in my
    statement, is under a Director of Central Intelligence
    directive that was issued this year earlier, in May, that
    enumerates the responsibilities within the TTIC and who I
    report to and what the responsibilities are within TTIC. I am
    not CIA, Senator. I am a U.S. Government officer. I happen to
    be a CIA official, but I head up TTIC as a U.S. Government
    officer representing these other agencies as well.
        Senator Feinstein. Well, let me ask this. How does that
    facilitate the transmission of analysis to the law enforcement
    agencies within the homeland?
        Mr. Parrish. If I may, Senator, when TTIC stood up on the
    May 1, I was there, as John indicated, as the Director of
    Homeland Security. The information that was coming into TTIC
    from the FBI, from the CIA, and from members of the
    intelligence community was information that I had immediate
    access to and I was working with my colleague at that time, who
    was Paul Redmond, who was the assistant secretary. I was
    communicating to him on information that we needed to take a
    look at.
        I would also push, as the senior Department of Homeland
    Security representative to TTIC, to get information rapidly
    downgraded to the secret level or law enforcement-sensitive to
    get that to the State and local authorities. An example of it,
    I guess, would be on the morning of the Riyadh bombing attacks,
    as I was looking at some of the sensitive traffic at that time,
    seeing some different tactics and techniques being employed by
    Al-Qaeda, I realized that that information needed to be
    transmitted to State and locals and the private sector as soon
    as possible.
        I communicated to Paul Redmond, who was then the Assistant
    Secretary for Information Analysis at Homeland Security, and
    said begin preparing a Department of Homeland Security advisory
    bulletin and I will get this information downgraded to a law
    enforcement-sensitive level so that we can get that out.
        The success of that is that at the end of that day, at six
    o'clock that night, we had a Department of Homeland Security
    advisory that went out to State, local, and private sectors
    advising them of these tactics and techniques that Al-Qaeda had
    applied to the attack on the apartment complex and the
    facilities that we saw.
        I would say prior to the stand-up of the Department of
    Homeland Security and prior to the stand-up of TTIC, that
    process probably--you are exactly right--would have taken three
    or 4 days to get through the CIA process of getting that
    information downgraded to the point that we could get it in the
    hands of State and locals. So we have come a long, long way
    from where we were and we are making progress in that regard.
        I have other examples of how that information-sharing has
    improved. By having members of the Department of Homeland
    Security sitting in TTIC, analysts that come from IAIP, they
    are there representing the operational environment of this
    department and looking out for the welfare of the security of
    the country.
        Senator Feinstein. Well, I understand that you all feel
    strongly this way, but I don't know if you gave any attention--
    probably not--to the testimony before the Congress of the
    former Deputy National Security Adviser Jim Steinberg, who
    advised us that it was a big mistake to place this under the
    Director of the CIA rather than Homeland Security.
        If I might just quote him, ``Unfortunately, by placing TTIC
    under the direction of the DCI rather than the Secretary of
    Homeland Security, and disconnecting it from those with direct
    responsibility for safeguarding homeland security, the
    administration's proposal falls far short of what is necessary
    to develop an effective, integrated approach to countering
    terrorist threats to the United States, and risks creating more
    duplication that could harm homeland security efforts.''
        He goes on to say, ``TTIC represents a step forward in the
    middle stage of the process, collating and analyzing all source
    intelligence, but it fails to link that process to two equally
    critical tasks--deciding what information to collect based on
    the requirements of those who must act on it and making sure
    that once the information is collected and analyzed, it gets to
    these people in and out of Government who need it.''
        I can tell you I met this past break with the
    counterterrorism task forces in San Diego and in Los Angeles,
    and this is still a problem, gentlemen. The information just
    doesn't flow. Now, it seems to me that by its structural
    designation, it is being moved even farther from the flow of
    things into sort of the most clandestine and secretive
    operation we have.
        Mr. Parrish. Senator, the information flow, in my
    estimation, right now is working very well with the Terrorist
    Threat Integration Center. I meet in video teleconference daily
    with John and with the members of the FBI in a small group of
    exchange of sensitive information in that regard.
        It is my job and my responsibility to ensure that when I
    hear this information and I see that it is germane to getting
    out to those individuals at our borders, State and local
    authorities and the private sector, that this information is
    downgraded in a timely fashion so that we can information out
    there to them.
        I am very familiar with the 19 functions which Congress has
    chartered us to take on, and I feel right now comfortable that
    we are complying with those 19 functions. We are making
    progress. We have only been in business for 6 months and we are
    moving as fast as we can to enhance our capabilities, but I am
    satisfied right now that we are making progress pushing that
    information out there.
        Senator Feinstein. Well, I will just say one last thing.
    Mr. Brennan, I have written you a letter asking for some
    protection at some potential targets in California. I have
    never received a response. I would very much appreciate
    receiving that response.
        Mr. Brennan. Senator, I would like to correct the record
    here today. First of all, you didn't send me a letter asking me
    to take action. You informed me of a request that you made to
    Secretary Ridge and to Director Mueller for that support.
        I sent you back a response that your staff has had now for
    the past several weeks. So I did respond to you and I told you
    that we were doing everything possible to ensure that all
    information is shared with the Department of Homeland Security
    and the FBI. So I would ask you to check your staff's records,
    but you have that.
        Senator Feinstein. But my letter was not about sharing of
    information in that case. It was about something else, but I
    think I get your message loud and clear, Mr. Brennan.
        Mr. Brennan. Senator, I must say that I respectfully but
    strenuously disagree with Mr. Steinberg. He gave that testimony
    before TTIC was even up and running. As you know, the
    overwhelming majority of information about international
    terrorist threats to the homeland comes from foreign
    intelligence. The Director of Central Intelligence has
    responsibility for that foreign intelligence.
        Therefore, if we are really going to tip into that gold
    mine of information, we need to make sure that the DCI is, in
    fact, very supportive of that effort. That is why I think TTIC
    is appropriately placed under the DCI, and I am doing
    everything in my power to ensure that that information is made
    available to the FBI and to the Department of Homeland Security
    so that it can be shared at the State and local law enforcement
    level. That is my commitment. I am going to fulfill that
    commitment on behalf of the DCI to ensure that information
    cascades its way down so we can get it to the--I refer to them
    as the last preventers, as opposed to just the first
    responders. They are the ones who can actually stop the
    terrorist attack from taking place on the ground.
        Senator Feinstein. Well, one thing is we will know. Thank
    you very much. Thanks, Mr. Chairman.
        Chairman Chambliss. Thank you, Senator.
        Senator Feinstein raises a very valid point that wherever
    the information is located, wherever it finally lands, it is
    incumbent, gentlemen, that it be shared at the Federal level
    and all the way down. And if there is a problem in it getting
    down, it is our job to tell you what we are hearing and we are
    going to continue to do that.
        Senator Cornyn.
        Senator Cornyn. Thank you, Mr. Chairman.
        Mr. Mefford, the Terrorist Screening Center is merging a
    dozen existing lists maintained by nine different Federal
    agencies. Is that correct?
        Mr. Mefford. It is merging at least a dozen different
    systems. I am not really sure of the exact number of lists. One
    of the advantages that we have by consolidating is that we will
    have one entity that is responsible for the process.
        Senator Cornyn. Well, I was referring to an Associated
    Press article that called it a list, but you would call it
    consolidation of systems as opposed to a list?
        Mr. Mefford. I think so.
        Senator Cornyn. Okay, from nine different Federal agencies.
    Could you tell us what earns you a mention on one of these
    lists? In other words, what are the standards or criteria that
    are used to put someone on one of these lists?
        Mr. Mefford. The specific criteria are being defined as we
    speak by the interagency working group that will develop the
    pertinent policies and procedures. But, conceptually, known and
    suspected terrorists would go on the list; somebody that is
    supporting terrorist activities. It may be somebody that is
    running a training camp suspected to facilitate terrorist
    communications, somebody who is of interest to the U.S.
    protective standpoint, somebody that potentially poses an
    imminent threat to our country.
        There is a variety of criteria and, in detail, I would have
    to ask your patience as it is further defined. But right now,
    based on the variety of lists that exist today and systems that
    exist today, we have a variety of standards, and one of the
    advantages we see is consistency in policy.
        Senator Cornyn. Well, I don't underestimate the challenges
    that any one of you gentlemen or the agencies you work for have
    in this area because it is mind-boggling to me. But I would
    imagine that that is an important objective to identify
    standard criteria for who ought to be on the list and who
    doesn't deserve a mention on the list.
        Mr. Mefford. Yes, sir. I might add it is a key goal,
    obviously, and I might add that quality control and management
    of the list is also very, very important. In our constitutional
    system, we are very aware, and certainly in the FBI we are very
    attuned to the constitutional safeguards and privacy rights of
    individuals, and we will ensure that the system is designed in
    way to afford the appropriate protections.
        Senator Cornyn. I understand the very difficult balance
    that needs to be achieved, but obviously that is your
    responsibility and our responsibility together to make sure
    that the right balance is achieved both in legislation and in
    actual administration of the law.
        Mr. Mefford. Yes, sir.
        Senator Cornyn. But just so I understand, you say that
    eventually the goal would be to identify a standard criterion
    or criteria that would help you identify either a known
    terrorist or a suspected terrorist. Is that correct?
        Mr. Mefford. Yes, and that would include, in my view--and
    again the interagency working group has to define these
    criteria, but in my view, and I think the rational view, would
    include material support to a terrorist organization. So it may
    not be constricted to just somebody that is developing a bomb,
    for instance. It may be somebody that is aiding Al-Qaeda in
    raising funds or training or recruiting efforts.
        Senator Cornyn. The goal, as I understand it, is sort of
    raise a flag and then further investigation would be warranted,
    and either the concern would be confirmed or not, depending on
    the facts.
        Mr. Mefford. That is correct.
        Senator Cornyn. Approximately how many names are on the
    current lists that exist? Could you give us a ball park?
        Mr. Mefford. In the FBI's current system, in NCIC, we have
    roughly 7,600 names. I understand in the TIPOFF system, we have
    over 100,000. That is the overseas State Department system. And
    I understand there are several thousand in TSA's no-fly
    selectee list. There are other names on other lists and one of
    our challenges is to ensure there is no duplication and that we
    have consistent standards.
        Again, I just would like to emphasize that it is not enough
    to enter a name on the list. We have to now constantly monitor
    the name on the list to make sure there still a significant
    reason to have the name remain on the list, and we intend to
    institute quality control measures to ensure that that is
    accomplished.
        Senator Cornyn. Mr. Parrish, since the Department of
    Homeland Security now has the responsibility for aspects of
    immigration enforcement, is the goal of an integrated list to
    try to identify just known or suspected terrorists, or does it
    also include, for example, identification of people whose visas
    have expired and who are no longer living legally in the United
    States?
        Mr. Parrish. As you know, sir, the Under Secretary for
    Border Transportation Security has that responsibility in the
    visa process, and I believe Under Secretary Hutchinson is
    coming to the Committee next week. But let me just share with
    you a little bit of some of the process of how it works with
    the Treasury Enforcement Communications System, TECS, and what
    we are seeing recently now, again, I think, to the credit of
    the great Americans out there standing at our borders, at the
    airports and the land border crossings, the level of scrutiny
    of looking at these documents as they are coming in.
        Each day, as I look at the morning reports, I am seeing
    individuals that are turned around to get on another airplane
    because their visa had been revoked or expired. That wasn't
    picked up on the other end and they are turned back. I think
    this system will enhance that process as we work with the State
    Department, as the Bureau of Transportation Security is working
    with the State Department aggressively with this MOU, as we get
    this system in.
        So as you have your consular affairs overseas looking at
    the visa applicants, running the names back through the
    Terrorist Screening Center to see if there is any information
    about these individuals, it will be another, I think, aspect of
    the program to enhance the capabilities of detecting those that
    are coming here for purposes other than business or travel.
        Senator Cornyn. I had the good fortune to visit the
    facility there in Mexico City recently and see the tough job
    that they have just screening people who want to get visas to
    come to the United States.
        Just to be able to differentiate what we are talking about,
    we have been talking a little bit with Mr. Mefford about known
    or suspected terrorists, but there are literally millions of
    people who come to the United States each year who wouldn't
    fall in that category, presumably.
        Is that the job of the Department of Homeland Security to
    monitor those entries and those exits? Is that separate and
    apart from your counterterrorism function?
        Mr. Parrish. Certainly, again, it falls under--and I don't
    want to speak for Under Secretary Hutchinson, but certainly it
    is within the responsibilities of the border protection of
    screening those individuals that are coming into our country to
    make sure that they have the right documentation before they
    come into the country.
        Senator Cornyn. I know Chairman Chambliss had earlier
    hearings where we heard some interesting statistics about the
    number of people who came into the country legally but are no
    longer here legally, and the difficulty of simply identifying
    where they are and who they are and showing them the way, I
    guess, back to their country of origin, or at least try to make
    sure that they comply with the law.
        We heard figures like 40 percent of the people who are
    illegally in the United States now got here originally through
    a visa and just simply overstayed. We heard figures like
    300,000 individuals are under final orders of deportation and
    they simply melted into the landscape and we don't know where
    they are.
        Just to differentiate what we are talking about, we are
    talking about both the identification of known and suspected
    terrorists, which is the primary role of the watch list I think
    you are here talking about today, but there is a whole huge and
    immense body of people that would fall under a separate
    category. We don't suspect them of being terrorists, either
    known or suspected, but they simply are here in violation of
    our immigration laws. Would that be a fair characterization?
        Mr. Parrish. Yes, sir, and I think if you look at the
    screening process, we begin with the screening process outside
    our borders. That is the visa issuance. The next layer in that
    screening is at our borders as we screen those that are coming
    in. The center will then support those that are inside the
    United States, as you mentioned that may be here on an expired
    visa and are now trying to blend into society, and then again
    on the exit from our country as they return back.
        As individuals' names come into the center, they will be
    bounced against these lists to see if, in fact, they are people
    of interest that need to be talked to. The State trooper on I-
    81 in New York, or you could say on Interstate 95 heading
    south, pulls over an individual and runs it back through their
    operations center that comes in and is bounced off the
    Terrorist Screening Center.
        There may be information there that this trooper now is
    given a little more information to ask maybe a little bit more
    pointed questions that raises a little bit more suspicion that
    eventually leads to a little bit more probable cause to allow
    that trooper to open up the trunk and pull out blueprints for
    the next terrorist attack. That is the essence of what we are
    trying to get to.
        Senator Cornyn. I think that is an admirable goal and I
    certainly am pleased with the developments that have occurred
    that make that more likely. But just so we understand what we
    are talking about, that same trooper does not have access to a
    list of the, let's say, 8 to 10 million people who are
    illegally in this country now, because they wouldn't appear
    necessarily on a list of known or suspected terrorists. Is that
    correct?
        Mr. Parrish. That is correct.
        Senator Cornyn. Just in conclusion, I would be interested
    to hear the comments of each of you on how we reconcile
    ourselves to our goals in terms of homeland security, which to
    me are knowing who is coming across our borders, their reason
    for being here, and that they actually leave when they say they
    are going to leave at the expiration of their lawful visa--how
    do we reconcile homeland security concerns with the fact that
    we probably have between 8 and 10 million people living
    illegally in this country, in violation of our immigration
    laws?
        Mr. Parrish. Again, sir, I would like to defer that to my
    colleague, Under Secretary Hutchinson, as he has that border
    transportation--
        Senator Cornyn. Well, I will ask him that question when he
    comes next week, I guess.
        Mr. Mefford, do you have any observations or reaction?
        Mr. Mefford. Senator, I agree that is an immense challenge,
    and obviously we look forward to working with DHS and other
    agencies to do our part to make the country safer.
        Senator Cornyn. Mr. Brennan, do you have any observations
    or comments?
        Mr. Brennan. It is basically a homeland security, domestic
    law enforcement affair. My role in this is to make sure that we
    provide the best intelligence possible on the international
    terrorist threat as we know it, including those folks who may
    be here in the States.
        Senator Cornyn. Well, Mr. Chairman, I hope, as we have
    discussed in previous hearings, we do finally come to grips
    with what I think is a big homeland security issue, and that is
    to be able to identify those people who are here with either
    expired visas or have come here illegally and figure a way to
    address that.
        I don't see how we can truly call ourselves prepared from
    the standpoint of homeland security until we come to grips with
    the literally millions of people who are here who are not
    terrorists and who are not suspected of terrorism, but come
    here for other reasons. We simply need to identify who they are
    and their reason for being here.
        Thank you very much.
        Chairman Chambliss. Along that same line, is there an
    active effort to identify those folks who maybe have some
    terrorist activity in their background whom we know came here
    legally, but are here illegally?
        Mr. Parrish. Again, Mr. Chairman, I would like to defer
    that to the border transportation security under secretary, as
    that falls into his area with the immigration and customs
    enforcement organization which falls under him.
        Chairman Chambliss. Mr. Mefford, in negotiating the MOU on
    the consolidated watch list with other agencies, what issues
    were discussed about how foreign intelligence will essentially
    be housed in an agency with domestic law enforcement
    responsibilities? Also, have consular officials been assured
    that they will have the same or better access to information in
    making visa determinations?
        Mr. Mefford. Mr. Chairman, in regard to the second
    question, yes, we will ensure that we build into the system an
    assurance that Department of State personnel will have equal or
    better information than they have access to today to ensure
    that they can properly carry out their duties.
        In reference to dealing with international intelligence
    information, the FBI is a law enforcement agency. We are also
    an intelligence agency. As a result of certain presidential
    orders and other statutory developments, we are a full partner
    in the U.S. intelligence community. We have a long history of
    dealing with foreign intelligence information both from a
    counterintelligence or espionage standpoint and from a
    counterterrorism standpoint.
        We are merging our ability to conduct criminal
    investigations with our intelligence function in a way that we
    think enhances the protection of the country, but we have a
    significant history as an agency in dealing in foreign
    intelligence information and we believe that we bring those
    authorities to the center.
        Chairman Chambliss. Mr. Brennan, along with the MOU that
    creates the consolidated watch list, the State Department is
    giving up control of its TIPOFF database. Why is the
    consolidated database being placed at the FBI and the TIPOFF
    database at TTIC?
        Mr. Brennan. The TIPOFF database, which consists of over
    100,000 names or so, is going to be fully integrated into the
    TTIC identities database. In fact, the TIPOFF database is going
    to be the engine that we are going to drive initially as we
    create this database.
        TIPOFF really has two parts to it. One is the database, the
    names themselves. The other is those elements that provide
    support to the embassies and consulates abroad as they make
    decisions and adjudicate visa issues. That portion which
    provides that support, in fact, is going to be migrating to the
    Terrorist Screening Center.
        So what we will be inheriting within TTIC, working very
    closely with State, is the information itself, the database
    itself, those names and the people who are responsible for
    integrating and inputting that. The rest of TIPOFF that
    provides that support will be, in fact, fully integrated into
    the Terrorist Screening Center.
        Chairman Chambliss. Do you foresee any adverse effects,
    such as long waits for visas at our service centers?
        Mr. Brennan. No, Senator. I would say that the State
    Department and TTIC and others are working very carefully to
    ensure that there is no degradation whatsoever of support to
    that process.
        Chairman Chambliss. Mr. Mefford, in April a GAO report on
    watch lists blamed parochialism and turf battles for
    information-sharing problems. A consolidated watch list is part
    of the solution because relevant information will be accessible
    to appropriate agencies and a structural change, but how will
    this master watch list solve problems that require a
    proprietary change?
        For instance, foreign intelligence sources are reluctant to
    share classified information and domestic agencies resist
    revealing law enforcement-sensitive information. How will, for
    example, a consular official be sure he can access all
    categories of information?
        Mr. Mefford. That is the crux of our major challenge,
    Senator. As Director Mueller is reorganizing and reengineering
    the FBI and we are in the process of fusing our law enforcement
    mission with our intelligence mission, those are the exact
    points that we are looking to improve.
        We think that we have made dramatic enhancements and
    improvements since 9/11. We are sharing more information and
    better-quality information today with all agencies, including
    the private sector, than at any time in the history of the FBI.
    Clearly, it is a key goal of ours to ensure that we continue to
    improve in that area.
        Chairman Chambliss. Mr. Parrish, border agents need to
    access information quickly and effectively. How do you see the
    two DHS bureaus, Customs and Border Protection, and Immigration
    and Customs Enforcement, accessing the consolidated watch list
    as an improvement on their current immigration lookout system
    called IBIS?
        Mr. Parrish. Sir, the current system of the Treasury
    Enforcement Communications System bounces off, if you will, the
    databases of the NCIC, VGTOF, and TIPOFF. I think this will be
    an enhancement to make sure that we have immediate access to
    all of these databases. The TECS system made some adjustments
    right after 9/11 based on the FBI's adjustment to the NCIC by
    migrating VGTOF into the NCIC. The Treasury Enforcement
    Communications System picked up on that.
        Just a quick success story, I guess, of how this can work
    and goes back to who do we put on this list was when the FBI
    called me 1 day with 150 names that were found in a safe house
    in Afghanistan. It was a training roster that came out of a
    terrorist training camp, 150 very generic names--Al Hindi, the
    Indian Mohammed, the Egyptian, Omar Shashani, the Chechan; no
    dates of birth, no passport numbers. But the ability in TECS is
    to put a footnote in there so that inspector on the line, when
    he accesses that name, sees the reference name associated with
    a terrorist training camp.
        As you may recall, in July of 2002, on a Northwest flight
    from Tokyo to Detroit, the name came up of Omar Shashani. The
    TECS record showed the name associated with a terrorist
    training camp. Mr. Shashani was taken in a secondary by a very
    alert inspector who detected some deception and took him down
    to his luggage and searched him, as they have full authority to
    do, as you know, at the borders, and found $12 million in
    counterfeit checks. And there is more to the story.
        The bottom line is as we make this system, we want to make
    sure that we don't lose that capability of what TECS has right
    now to put those footnotes in, to be able to put that
    information in to make sure that we don't miss an Omar Shashani
    or another individual because we don't have quite enough
    information.
        So when we talk about who goes into this list, I push very
    hard every morning when I read the intelligence reports and
    read about a name, and the first question I ask is is it in the
    system. I don't care if that name is coming out of a safe house
    or a cave in Afghanistan or uncovered in Iraq. If it is
    somebody who is associated with a terrorist nexus, we need to
    get it into the system because we are fighting a very
    decentralized enemy who is focused on coming into this country
    by hook or by crook by any means that they can, and we need to
    make sure that those names are placed in there. This center
    will give us that capability to make sure that we can identify
    these people.
        Chairman Chambliss. One aspect of this that we have talked
    about, and the purpose of the hearing was to talk about the
    information that goes into the system and the establishment of
    the watch list, who goes on it and why they are on it.
        There is another aspect of this that creates a real
    significant problem for us and for you, in particular, and that
    is getting this information in the hands of the right people. I
    have been to the border in Mexico. Senator Cornyn has been to
    that same border. You go to any one of those crossings from end
    of that border to the other and there are thousands of people
    who are coming across every day.
        So in addition to the challenge of establishing this list
    and getting the right information in there, you have another
    challenge of getting that information to that border patrol
    agent to make sure that the person who is coming across is the
    person he says he is, and that if he is a bad guy, we keep him
    out. That is a huge challenge to you. As we continue to be the
    freest, most open country in the world, the challenge is going
    to do nothing but get bigger.
        Gentlemen, we have come a long way since September 11th,
    and I want to commend each of you for the job you are doing and
    I want to thank you for coming here today to share this
    information on the watch list. But at the same time, the
    challenge to you is going to be even greater, and in spite of
    everything you do, we are still going to have vulnerabilities.
        But I hope you will express to everyone underneath you that
    the support in Congress is strong with respect to the challenge
    that you have undertaken and the work that you are doing. We
    hope we are providing you with the resources necessary to
    continue to do this job. You guys are really three of the more
    important people in the country right now when it comes to
    keeping bad guys out, and I would like to make sure that this
    Subcommittee maintains a strong dialogue with you and that we
    get you back up here from time to time to give us an update on
    what you are doing, how you are doing it, and how effective you
    think you are in doing that.
        Senator Cornyn, do you have anything else?
        Senator Cornyn. I just want to say thanks, Mr. Chairman,
    for convening this hearing today, and thanks to each of you
    gentlemen for your service to this country. I guess the best
    evidence of your success and the success of our Government in
    keeping us safe is the fact that we haven't had a repeat of 9/
    11. Let's knock on wood, but it is tough to get credit when the
    best evidence of your success is nothing happens.
        So I think the American people perhaps don't appreciate it.
    They would if they knew more about what you are doing, but the
    American people need to know more about the efforts that are
    being undertaken by so many people like you on behalf of them
    and keeping America that free and safe society where we can
    enjoy liberties other people only dream about. So we want to be
    supportive of your efforts. We are empathetic of the challenges
    you have.
        Mr. Chairman, I was at a confirmation hearing for the newly
    designated head of the Environmental Protection Agency, and I
    think he has an awfully tough job. Someone was saying why in
    the world would you want that job? But I know these gentlemen
    have vigorously embraced the responsibilities they have and we
    want to work with them toward the end of keeping those
    terrorists at bay and winning that war.
        Thank you.
        Chairman Chambliss. Gentlemen, I will tell you that we are
    leaving the record open for a period of 7 days. There may be
    some written questions to be submitted to you by Senators who
    could not be here.
        So with that, this hearing will be adjourned.
        [Whereupon, at 3:49 p.m., the Subcommittee was adjourned.]
        [Questions and answers and submissions for the record
    follow.]
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         VISA ISSUANCE: OUR FIRST LINE OF DEFENSE FOR HOMELAND SECURITY

                                  ----------

                          TUESDAY, SEPTEMBER 30, 2003

                                  United States Senate,
       Subcommittee on Immigration and Border Security, of the
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 2:10 p.m., in
    room SD-226, Dirksen Senate Office Building, Hon. Saxby
    Chambliss, Chairman of the Subcommittee, presiding.
        Present: Senators Chambliss, Grassley, Sessions, Craig,
    Cornyn, and Kennedy.

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

        Chairman Chambliss. The hearing will come to order.
        Let me first apologize to our witnesses as well as those in
    the audience for running behind, but we got slightly waylaid
    getting over here.
        I understand Senator Kennedy is on the way and will join
    us. His caucus has not ended yet, either, so he will hopefully
    be here shortly in any event.
        In November of 2002, Congress passed the Homeland Security
    Act to establish the Department of Homeland Security,
    incorporating the immigration functions of the former
    Immigration and Naturalization Service. The Act also
    transferred visa issuance authority from the Department of
    State to the Department of Homeland Security. This was a
    significant transfer of authority, because it clearly envisions
    visa issuance as a critical stage in border security for our
    Nation. All 19 of the September 11 hijackers came to the United
    States on visas. With improved information sharing, we can stop
    a potential terrorist before he gets to our borders by denying
    him a visa in the first place.
        Just yesterday, the President signed a Memorandum of
    Understanding, or MOU, between the State and Homeland Security
    on exactly who will be in charge of visa issuance functions.
    This MOU is the product of months of negotiations between the
    departments to spell out the intent of Section 428 of the
    Homeland Security Act, which covers visa issuance procedures.
    Importantly, the MOU details the coordination that is necessary
    between the two departments when a decision is made to issue or
    deny a visa--a decision that must be made with a sharp eye
    toward our homeland security.
        A key issue in the passage of the Homeland Security Act was
    putting control of the visa issuance process specifically under
    the Border and Transportation Security Directorate in order to
    keep the functions of immigration services separate from the
    functions of border security. The old INS system was broken, so
    Congress split up the agency to make it more accountable. We
    must keep it that way if our homeland security is to remain
    vigilant.
        I know that Under Secretary Hutchinson will work with
    Director Aguirre and Assistant Secretary Harty on immigration
    services. This is important work, but the point is that in a
    post-9/11 world, visa issuance must be a border security job.
        In a July hearing this Subcommittee held, we urged Homeland
    Security to adopt and formalize policies in order to stop
    immigration-related threats to our Nation's security. I am
    pleased that our efforts have at least brought us to the point
    of having an agreement on visa issuance authority. That is a
    necessary first step, and this Subcommittee will continue to
    work with both departments to make sure that border security
    measures are implemented and adhered to in order to protect
    Americans from future attacks.
        I welcome a good friend and my former colleague from the
    House, Under Secretary Hutchinson, and also Secretary Harty. We
    have plenty of questions to ask you about the Memorandum of
    Understanding and about other homeland security functions. As
    you know, we have spent a good amount of time this year
    discussing the role of information sharing, for instance, with
    the visa revocation problem.
        Today we look forward to talking about the fuller picture
    of coordination for visa issuance as a border protection
    measure in order to better ensure our Nation is safe.
        If Senator Kennedy desires to make any statement when he
    comes in, we will interrupt the proceeding to allow him to do
    so.
        At this time, I will ask my colleague Senator Cornyn if he
    has any statement he wishes to make.

        STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM TEXAS

        Senator Cornyn. Just briefly, Mr. Chairman, thank you for
    convening this hearing today. I want to thank the witnesses for
    coming to bring us up-to-date and to answer our questions in
    this important area.
        I recently during the month of August had a chance to visit
    some of the cities on the Texas-U.S. border, places like
    Laredo, the largest land port in the United States, and El
    Paso, another important border city, and hear from some of my
    constituents about how well we are doing not only in theory but
    in practice, and I want to explore a little bit of that with
    the witnesses today, but also to travel to Mexico City and see
    what I was told will be really the state of the art when it
    comes to visa applications and issuance in foreign capitals
    like that around the world.
        Finally, I have been reading and hearing a lot about
    ``lateral repatriation'' and have a few questions I want to be
    able to ask Mr. Hutchinson perhaps about that when the time
    comes.
        Thank you very much.
        Chairman Chambliss. Thank you, Senator Cornyn.
        Nobody on this Subcommittee has been more vigilant than you
    with respect to the work on border security, and you certainly
    have many critical areas in your State. I appreciate your
    attention and hard work in that area.
        We are pleased to have today the honorable Asa Hutchinson,
    Under Secretary for Border and Transportation Security
    Directorate, Department of Homeland Security, and also the
    honorable Maura Harty, Assistant Secretary for Consular Affairs
    of the Department of State.
        Secretary Hutchinson, we will start with you, and we
    welcome any comments you would like to make to open up.

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

        Mr. Hutchinson. Thank you, Chairman Chambliss, Senator
    Cornyn. It is good to be with you. I look forward to the
    questions from the Committee.
        First, I want to recognize my colleague, Assistant
    Secretary Maura Harty, for her partnership and her leadership
    in coming to a conclusion on this Memorandum of Understanding.
        We are pleased that the President submitted that to
    Congress after it was signed by Secretary Ridge and Secretary
    Powell. This document transfers the responsibility for visa
    policy and oversight to the Department of Homeland Security in
    accordance with the legislation passed by the Congress.
        When Congress created the Department of Homeland Security
    and specifically the Homeland Security's new role in the visa
    process, it charged the Secretary with responsibility for
    establishing and administering rules in accordance with section
    428, which governs the granting of visas or other forms of
    permission to enter the United States. As the lead in DHS on
    this initiative, I believe our role in the visa process is one
    of the most important missions of the Department of Homeland
    Security and is a cornerstone of our homeland security efforts.
        The effectiveness of the new Department's role in visa
    security is dependent upon an effective partnership with the
    Department of State. By signing this agreement, both the
    Department of Homeland Security and State have pledged to work
    cooperatively together to create and maintain an effective and
    efficient visa process that secures our borders from external
    threats while ensuring that our borders do remain open to
    legitimate travelers and visitors.
        This agreement has been the subject of many months of
    discussion between State and Homeland Security, not just at the
    working level but also through personal discussions I have had
    with my colleague, Assistant Secretary Maura Harty. Without her
    direction and leadership, it would not have been accomplished.
    I wish to thank her for her personal commitment to making this
    effort a success and implementation of this agreement.
        This memorandum affirms our commitment to continue working
    with Department of State in improving the security of our visa
    system. We view the visa process as the foundation of our
    security against terrorists and criminals who seek to enter the
    United States with the intention to do harm.
        Our security is dependent upon three objectives--that is,
    the development of sound visa policy, operational support
    overseas, and the enhanced information-sharing and integration.
    Each of these is critical to our success in improving security.
        In the area of policy, the Department of Homeland Security
    will now establish most visa policy, have final approval over
    most Department of State-initiated guidance, review
    implementation of visa policy, and ensure that homeland
    security requirements are fully reflected in the visa process.
        When we speak of visa policy, we refer not just to our
    policy decisions but also the guidance that may affect
    individual visa determinations. This guidance will include
    Federal regulations, Foreign Affairs Manual provisions, and
    State Department cables to diplomatic and consular posts.
        In carrying out our responsibilities related to visa
    policy, the Department will respect the Secretary of State's
    role in leading and managing the consular corps and its
    functions, managing the visa process, and executing the foreign
    policy of the United States. And the mutual respect for those
    responsibilities and objectives is important as we set the
    cornerstone for this agreement.
        In my arena, we will have the Office of International
    Enforcement, which will handle the operational duties related
    to the 428 process for homeland security. I have also committed
    to work with my good friend, Eduardo Aguirre, the Director of
    Citizenship and Immigration Services, and I respect his role in
    helping to develop visa policy.
        The law requires that we first put personnel in Saudi
    Arabia, where we will have a 100 percent review of visa
    applications once this MOU has become effective. We have
    already deployed a team to Saudi Arabia at the end of August
    that has established offices in Riyadh and Jeddah. Their team
    is working with State Department colleagues to develop policies
    for review of Saudi visa applications, and we expect what
    happens in Saudi Arabia to be a standard that will be
    applicable in other arenas of the world, a model for procedures
    that we can use at other posts. They have already done good
    work.
        Beyond Saudi Arabia, the law authorizes--it does not
    mandate, but authorizes--the Department to assign personnel to
    other diplomatic and consular posts where visas are issued. We
    are in the process of reviewing the next phase of deployment
    and assignment of Homeland Security personnel to selected
    consular offices. These will be integrated into the diplomatic
    missions and subject to the authority of the Chief of Mission
    in the same manner as other executive branch employees serving
    abroad.
        Our visa security officers will provide expert advice and
    training to the consular officers, will help review visa
    applications, and will help conduct investigations with respect
    to matters pertaining to the issuance of visas.
        We will also enhance information sharing, because that will
    be critical to make sure the visa security officers have the
    information that they need on the ground, in the field, during
    their day-to-day work.
        So we are grateful for the cooperation and support and
    leadership of this Committee, and I look forward to answering
    any questions.
        [The prepared statement of Mr. Hutchinson appears as a
    submission for the record.]
        Chairman Chambliss. Thank you very much, Mr. Secretary.
        Ms. Harty, we welcome comments from you at this time.

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

        Ms. Harty. Thank you, Mr. Chairman, members of the
    Subcommittee.
        I appreciate the opportunity to address you today on a
    subject that all of us agree is crucial--preventing terrorists
    from entering the United States. The Department of State's visa
    work abroad constitutes America's front line of defense against
    terrorists and criminals who seek to enter the country to harm
    us. We have no higher responsibility, and we are determined to
    do this work thoroughly and comprehensively.
        In this historic time of change, State and Homeland
    Security have come together to establish procedures that
    protect America's borders from external threats while
    continuing to promote legitimate travel to the United States.
        The MOU gives the Secretary of Homeland Security and policy
    role contemplated by the Homeland Security Act while
    maintaining the Secretary of State's clear chain of command
    over consular officers and relying on the foreign policy
    expertise of the Department of State.
        Our broad organizing principle in together drafting the MOU
    was to recognize and respect the different expertise of the two
    Departments consistent with the law granting the Department of
    Homeland Security authority over visa policy.
        The Secretary of Homeland Security will establish visa
    policy, review implementation of that policy, and have the
    final responsibility to issue or approve visa guidance.
    Diplomatic and official visas as well as any visa case that may
    affect foreign policy are reserved for the Secretary of State.
        The MOU establishes guidelines for assignment of DHS
    personnel at U.S. missions abroad, their duties once assigned,
    and the interactions and authorities they will have with
    consular offices and with the visa process. It reflects the
    recognition that the officers DHS assigns should add important
    value to the visa process by bringing to bear specific homeland
    security and counter-terrorism experience or training, broad
    knowledge of immigration law, and experience or training in
    investigative interviews.
        DHS personnel abroad will act as coordinators of source
    information involving threats to the United States,
    particularly focusing on terrorist threats, and be fully
    integrated into post committees such as the Visas Viper group
    designed to identify such threats. They will have the ability
    to review visa applications of classes of applicants who
    present security threats. In Saudi Arabia, they will review all
    applications. They will provide training and intelligence
    support to our consular officers, and they may recommend visa
    refusals or revocations as the need arises.
        Consular systems and records, though maintained by the
    State Department, will be fully available to our DHS partners.
        The MOU recognizes that the Secretary of State must have
    control over officers in his chain of command. DHS officers
    assigned visa duties abroad may provide input related to the
    evaluations of consular officers, but the evaluations
    themselves will continue to be written by State Department
    consular supervisors. Direction of consular officers will come
    from their State Department supervisors, and all officers
    assigned abroad, including DHS, come under the authority of the
    Chief of Mission.
        You may ask why it took so long to negotiate the MOU. The
    simple answer is because we wanted to get it right. The
    complexity of visa law, regulation, and policy and the
    challenge of management issues at more than 200 visa-
    adjudicating required careful analysis to ensure that we wrote
    an MOU that we together believed would address the
    Congressional intent of Section 428 of the Homeland Security
    Act.
        But the MOU is not the end-product. It is in fact only the
    beginning of the new partnership. Even before we completed the
    MOU, we were already forging a new relationship. We have a
    liaison office staffed at State with two senior officers, one
    of ambassadorial rank, to coordinate daily with DHS on matters
    of joint concern. On a number of initiatives, we have
    cooperated, including the new requirements for personal
    appearance for visa applicants and the Visa Waiver Program
    Waiver.
        We coordinate weekly on the new entry-exist system now
    known as US-VISIT. Just last month, DHS teams arrived in Saudi
    Arabia to begin their integration into our consular operations
    in Riyadh and Jeddah. They were warmly welcomed, and the
    integration is proceeding very smoothly. We are committed to
    making those officers feel like full members of the embassy
    team, which is what they are.
        Mr. Chairman, visa processing has undergone a profound
    transformation since September 11. We have sharpened our focus
    on security concerns. We are committed to working closely and
    cooperatively with the Department of Homeland Security to
    ensure that the visa process provides the highest level of
    security possible for the protection of the American people.
        I would like to take this opportunity to express my
    gratitude to my friend and colleague, Under Secretary Asa
    Hutchinson, and to his truly outstanding team for all of their
    hard work and sincere efforts in achieving the first step in
    this new partnership.
        I welcome your questions. Thank you.
        [The prepared statement of Ms. Harty appears as a
    submission for the record.]
        Chairman Chambliss. Thank you very much.
        I want to ask a couple of specific questions about Saudi
    Arabia, but first, could either of you give me an idea of how
    many visa applications we have annually from Saudi Arabia?
        Mr. Hutchinson. Mr. Chairman, I do not have that
    information. I will be glad to get that to you, probably before
    the end of the hearing.
        Chairman Chambliss. Okay. Last week, we had representatives
    from Homeland Security, FBI, and TTIC here to talk about the
    watch list, and we had a lot of conversation about that. Would
    you just very quickly tell us how the establishment of that
    watch list and the information contained within that watch list
    with respect to the individuals named thereon is going to play
    into your issuing a visa to somebody from any part of the
    world?
        Mr. Hutchinson. Yes. First of all, the consular offices
    will continue to do their checks. The added value that we hope
    to bring would be to have a more comprehensive law enforcement
    check with all of the available databases out there, both from
    a security and a law enforcement perspective.
        So our individuals in the field will have access to their
    watch list, databases, but then in addition, when questions
    arise, they will be able to connect with our offices here that
    will have further capability to vet those individual names or
    to address the questions that arise; if there is a hit, there
    is a question about identity, we can address those.
        Now, as you mentioned, we hope to have a consolidation of
    the watch list. We want to move to that very quickly, and
    obviously, that will make the work much easier whenever you
    have a consolidated watch list, which will be more expeditious.
    We are moving toward that, but until then, we will be checking
    each of those individually through the various agencies.
        Ms. Harty. Mr. Chairman, if I might add something to that,
    we are very excited and enthusiastic about supporting the new
    watch list function, specifically because the farther we can
    move the front line out and away from the borders of this
    country, the greater is our ability to protect this country. So
    for the consular officers doing visa adjudication in 210 visa
    adjudicating posts around the world, the best information that
    we can get for them--that is, all-source information provided
    in real time from all of our other colleagues in this effort--
    gives us a better ability to prevent somebody from even getting
    to our shore and presenting themselves at a port of entry.
        So this watch list really provides us an opportunity to
    have real time information, all-source information, and stop
    those people from ever even getting on a common carrier to come
    to a U.S. port of entry.
        Chairman Chambliss. I will just comment that we did not get
    a good answer because I do not think there is a good answer
    from those folks who testified the other day, and I would not
    expect you to answer this right now, but I think it is
    something you are going to have to work through. We have got to
    devise some kind of system to make sure that those folks who
    make application for a visa are in fact who they say they are.
    And obviously, the watch list is important, but we have got to
    make sure that we know who is sitting in front of your
    representatives and whether or not they are on that watch list,
    irrespective of what name they use. I know that is something
    that you are going to be working through.
        Under Secretary Hutchinson, this year, the Department of
    Homeland Security instituted the SEVIS database to track
    foreign students. After September 11, it was clear that we must
    be vigilant on visa overstays as an anti-terrorism matter. If
    that is true, why does the MOU give final responsibility of J
    visas for exchange visitors to the State Department when these
    very same people are being tracked by SEVIS?
        Mr. Hutchinson. Thank you, Mr. Chairman.
        First, I think this year, we had a very successful effort
    in monitoring the 600,000 foreign students who reentered our
    country to go to our academic institutions. We processed them
    quickly, but at the same time, we were able to stop 190 foreign
    students from coming into our country who were not properly
    enrolled in either the SEVIS system or in the university they
    said they were going to attend and turn them back. So I think
    it was a very successful effort.
        In reference to the J visas--and I would be delighted if
    Maura would comment on this as well--I believe in these
    different categories of visas that the State Department, in
    their role in foreign policy, has the lead in the overall
    policy area, but when it comes down to individual visas being
    issued, we would still play the trump card, if I might phrase
    it that way. So we will still be able to look at each
    individual issued in different categories and object to it if
    necessary, even though they take the lead in the overall
    policy.
        Ms. Harty. I agree completely with that, but I would like
    to add something that might become a refrain through several of
    our answers today, sir, and that is that we are committed to
    doing everything that we do jointly so that on an individual
    case or on a broader question, even before the MOU was signed
    and even before we had sort of an obligation in writing to
    collaborate and cooperate, we were looking for ways to do that.
        So on various parts of the J visa programs, there are some
    foreign policy interests, so that is in fact something that the
    Secretary of State certainly plays a major role in. But we are
    committed to doing all of it together and certainly will do so
    in this case.
        Chairman Chambliss. Good.
        Mr. Hutchinson. Mr. Chairman, could I respond to your first
    question that we have in Saudi Arabia approximately 130 visas
    issued daily in Riyadh and 50 daily in Jeddah, so that would be
    about 180 on a daily basis coming out of that country.
        Chairman Chambliss. Secretary Harty, we know that the
    embassy in Saudi Arabia has received a good bit of criticism
    over the visa issuance process, and indeed, Secretary
    Hutchinson referred to some of that and what we are now doing
    over there. But can you give us some examples of how the MOU
    will affect decisionmaking for the Saudi Arabian Embassy and
    how it will change procedures for issuing visas there?
        Ms. Harty. Yes, sir. Thank you, sir.
        I am delighted to say that the Visa Express Program that
    did receive very much criticism is long a thing of the past. I
    have twice since I was confirmed in this job gone to our posts
    in Riyadh and Jeddah, once to Dahran as well, to look in part
    at exactly how our operations are unfolding there. I have
    talked to every consular officer who adjudicates visas. I was
    yesterday in touch with our consular general in preparation for
    the hearing to discuss how our DHS colleagues are doing.
        In large measure, sir, we are hoping that our DHS
    colleagues will be able to provide additional information and
    additional training to our officers in interviewing techniques,
    that the Homeland Security colleagues on the ground will be
    able to help us in fact, to use a tired phrase, connect the
    dots at the post, to make sure that if there is information
    available in one part of the mission, the consular section has
    that information as it in fact goes through various visa
    adjudications.
        We are, as Under Secretary Hutchinson said, looking at how
    we do the job in Saudi Arabia as a template for other places
    where we might go, so we are proceeding judiciously and
    carefully to make sure that we can add value as many different
    ways as we can by Homeland Security officers calling on various
    databases and various other sources of information that might
    not have always been immediately available to us.
        So far, it is working out very, very well, and although the
    MOU was signed yesterday, they have been there for just about a
    month now, so they have had some real time to get settled in,
    to learn their way about the campus, to participate in Visas
    Viper conversations and to help us together come up with a
    better overall review of the process and of the visa
    adjudications.
        Section 428 explicitly states that all visa applications
    should be looked at by Homeland Security representatives before
    visas are received, so that is another part of what they are
    doing. I think that over the longer time, we will begin to
    benefit from their views of possible trends that they might
    spot and other pieces of information, again, that might not
    have been available to us before.
        Chairman Chambliss. Secretary Hutchinson, with the SEVIS
    system now being put in place--and I am pleased to hear that
    you processed that many people that quickly--is that system
    going to allow you just to locate those individuals who come
    here, or is it going to allow you to monitor their activities--
    and by that, for example, we have had a lot of students who
    have come to the United States under the pretext of studying
    English, and all of a sudden they switch to chemistry and carry
    that knowledge back home. Is this type of thing going to be
    monitored also?
        Mr. Hutchinson. Yes. The responsibility on the academic
    institution is to report any anomalies. So if a student does
    not carry his class load, if he is not going to class, or if he
    is enrolled in different classes than what he was intended to
    be, if there is any anomaly, their obligation is to report it.
        I would say that the universities have been fairly
    aggressive in that. We have had very active reporting of any
    questions but also any anomalies that are there, and they have
    that responsibility. And that would give us the capacity once
    we have that information to follow up as to whether there is a
    legitimate reason, whether there is a problem, whether they are
    out of status, whether they pose a danger. So that information
    flow puts a great burden on us to process it and to act upon
    it, and we are trying to develop that capability.
        Chairman Chambliss. Thank you.
        Senator Kennedy?
        Senator Kennedy. Thank you, Mr. Chairman.
        Welcome, Mr. Hutchinson and Ms. Harty. Listening to both of
    you, I think--Ms. Harty, how many years have you been in the
    service now?
        Ms. Harty. I am just in my 23rd year now, Senator.
        Senator Kennedy. Twenty-third year. Well, I think we are
    lucky to have professional people--not to take away anything
    from those who have not come up through the ranks--you had a
    different experience.
        Mr. Hutchinson. Two years.
        Senator Kennedy. But I think we are very lucky that Ms.
    Maura Harty is working in this area, and we thank her for her
    professionalism. It is a tough and difficult job.
        Let me ask you, Mr. Secretary, as you remember, we passed
    the Border Security Act, and one of the key aspects of that Act
    was the Central Intelligence Agency working on the watch list,
    and one of the failings, obviously, in Saudi Arabia is the fact
    that the CIA would not cooperate because they did not want to,
    they thought, give away their contacts with Saudi Arabia. And I
    understand now that you have had good support from the CIA,
    perhaps better than you have from the FBI. I do not know
    whether you want to characterize it in any way.
        Mr. Hutchinson. CIA has been extraordinarily helpful and
    cooperative in every way.
        Senator Kennedy. I think that is important to know, because
    that is very, very important. How would you characterize the
    FBI? Is it getting better--or how do you want to leave it?
        Mr. Hutchinson. I would say they have been excellent as
    well, particularly the leadership. They have all been very
    supportive of the integration effort.
        Senator Kennedy. Can you tell me a bit about the resources
    that you have? This is a major transition from the Department
    to the Bureau of Homeland Security. I am interested--it is
    complicated, it is difficult at best to try to work this out.
    Do you have the resources? How is the training program? How are
    you getting what expertise you do have in the visa section over
    to the Department? It is an enormous undertaking.
        I agree with Secretary Powell's assessment that the goal of
    the visa policy is ``to secure borders, open doors, and the
    challenge is to see that our policies and regulations are
    accurately evaluated, fully coordinated, fully funded so the
    Nation's security is protected.'' I think that that obviously
    sets the objective, and I am interested to hear from you today
    a little bit about how that process is working in terms of the
    funding, in terms of the training, and in terms of the
    personnel. Where are you on this?
        Mr. Hutchinson. Renee Harris will be the acting director of
    the Office of International Enforcement, which will have
    responsibility for the 428 visa oversight, and she brings a
    great deal of experience. She has a staff that is working on
    this as detailed from Immigration and Customs Enforcement. And
    through the 2004 budget cycle, we will be utilizing our
    existing resources to carry out these responsibilities. So the
    three right now that are in Saudi Arabia, additional personnel
    to follow, are from our existing capabilities.
        We will continue to build on that this year, and in the
    2005 budget cycle, we will be requesting probably significant
    additional resources to fund the new responsibilities in this
    arena.
        We are developing a training program in cooperation with
    Citizenship and Immigration Services utilizing their
    experience, but a training regime for this new responsibility
    has already met and developing the protocols and training
    manuals so that we will be able to effectively train people
    this year.
        Senator Kennedy. You are satisfied--would you expect that
    there will be a slippage in terms of the transfer authority
    from State to DHS? What can we expect in terms of--you don't
    think we will see delays or backlogs created? Have there been,
    or do you anticipate that there will be?
        Mr. Hutchinson. No--well, there is certainly an increased
    work load because of the individual interview process that
    State has to absorb, and they are doing an excellent job on it.
    But in terms of this transfer, I see only really increased
    opportunity and effectiveness and certainly no additional
    delays. I think you are really having additional eyes looking
    at the material, different perspectives, and additional
    resources. So I think that when there becomes a problem on a
    visa and whether it is going to be issued or not, we will be
    able to focus more energy and hopefully get it done more
    rapidly.
        Senator Kennedy. In overseeing the management and
    implementation of the visa MOU, assignment of DHS staff to
    consular offices is an enormous responsibility. How many people
    will staff this new office--do you know--or can you provide
    that to me for the record?
        Mr. Hutchinson. We would be happy to. Again, we are 3 days
    old now--
        Senator Kennedy. Yes, I understand.
        Mr. Hutchinson. --so we are developing it in a small
    fashion, but we do have a program as to how large it will be
    through the course of this year.
        Senator Kennedy. And do you plan to have representatives
    from State as part of the new office trained to assist the
    staff on visa processing issues?
        Mr. Hutchinson. We certainly hope that we can have, and we
    have talked about, an exchange of personnel to work closely
    with each other.
        Senator Kennedy. The MOU calls for many instances of joint
    responsibility and interagency consultation, interagency
    recommendation between State and DHS. What kinds of barriers to
    these joint efforts do you foresee arising?
        Mr. Hutchinson. Well, I would like to think that we have
    gotten over our big obstacles, and I think we have been
    successful thus far. I really believe that the key to success
    is continuing at Maura Harty's level and my level to have
    discussions, leadership, and providing guidance to our
    respective staffs.
        Senator Kennedy. Is this Terror Screening Center, which is
    I guess part of the Department of Justice, another layer? Does
    it simplify, or is it another layer that you have to check
    with? What is your own assessment on that?
        Mr. Hutchinson. It certainly would not be an additional
    layer. This would be for the consolidation of the various watch
    lists that are housed in different places.
        Senator Kennedy. So this would be sort of the go-to place;
    is that the way you look at it?
        Mr. Hutchinson. That is true. It is temporarily housed
    there, and we certainly hope to utilize that and will be one of
    the largest customers of it.
        Senator Kennedy. Mr. Chairman, thank you very much. This is
    an enormously important effort and is going to take a lot of
    effective management, and we have here two skilled individuals
    who are strongly committed to it, so we want to give them all
    the help and support. We will follow this closely and hope we
    can work closely with you to make it work.
        Thank you very much.
        Chairman Chambliss. Thank you, Senator.
        Senator Cornyn?
        Senator Cornyn. Thank you, Mr. Chairman.
        Mr. Hutchinson and Ms. Harty, let me preface what I have to
    say by also expressing my appreciation for the difficult job
    that you have to do and the challenges that you face. But I
    want to make sure I understand what the focus of both the
    Department of Homeland Security and the Office of Consular
    Affairs is. Is it counter-terrorism, or is it enforcement of
    our immigration laws, or is it both?
        Ms. Harty. Senator, with all due respect, I think I can
    probably speak for both of us when I say it really is both. It
    is very hard to disaggregate those two things. The bottom line,
    what we are trying to do is to push that border out as far as
    possible, to get information to the folks in the field so they
    can make the best decisions possible, whether that relates to a
    person who should not come to America because they are a common
    criminal or because they are coming here for a much more
    serious and nefarious reason, which we also obviously would
    like to stop. So I think it has both angles to it, sir.
        Senator Cornyn. What I am referring to specifically is the
    statistics that we have heard that roughly 40 percent of the
    people currently in the United States illegally are people who
    have overstayed their visas, which is not addressed by the
    laudable undertaking that you have talked to us about today.
    And we know that roughly 8 to 10 million people live in the
    United States illegally, and as laudable and important as the
    efforts that you are undertaking and you are here to describe,
    Secretary Hutchinson, does what you are doing address that, or
    are we talking about an additional task entirely?
        Mr. Hutchinson. Well, there are a lot of factors and
    responses to that, but clearly what we are doing in
    strengthening the visa issuance responsibility improves the
    integrity of the system. For example, if we find information
    that someone might not be a threat to America, but they have an
    intent to stay here and overstay their visa, and there is a
    risk of not returning, we are going to provide that
    information. So it will certainly address the issue and help
    strengthen the integrity of our immigration system.
        But also, the US-VISIT Program obviously is the most
    important response to what you are reciting, where a foreign
    visitor who comes in under a visa checks in, but also has to
    check out, and therefore, we know if they overstay or violate
    the visa. That information is essential. So this is part of the
    strengthening of our visa program, building on the integrity of
    our immigration system, but the US-VISIT Program is a very
    important part of it as well.
        Senator Cornyn. I am glad you brought up the US-VISIT
    Program, because that is a program through which we are able to
    identify people who overstay their visas. If there is someone
    short of their leaving the country and producing an expired
    visa, is there any program currently in effect to identify
    people who have perhaps melted into the countryside or
    otherwise come here illegally, to identify who those people
    are?
        Mr. Hutchinson. So, if they overstay their visa now, can we
    identify who they are in this country?
        Senator Cornyn. Or where they live.
        Mr. Hutchinson. It is an ineffective system. There are some
    ways to try to do that, but it is an ineffective system, and
    that is the reason for US-VISIT, to give us a greater
    capability in identifying and having information on those who
    may overstay their visas.
        Senator Cornyn. I want you to understand again that I am
    not being critical of your efforts--I think they are important,
    and I think they are headed in the right direction--but I am
    concerned that we not fool ourselves into thinking that we are
    dealing with the monumental challenges that confront this
    Nation when it comes to immigration issues. Putting some people
    on a watch list is important if we have intelligence that they
    are either terrorists or a potential threat to this Nation, but
    if we are going to be serious about enforcing our immigration
    laws--I worry, for example, about the 300,000 people who are
    under final orders of deportation; we simply do not know where
    they are--and also the other challenges that I learned a little
    more about in the trip that I mentioned in August along the
    U.S.-Mexican border, where the going rate for human smuggling
    for a Mexican national is roughly $1,500, for somebody from
    other parts of the country that might be a particular concern,
    the going rate is somewhere on the order of 10 times that, but
    still, we have a hugely porous border notwithstanding our best
    efforts.
        I just want to make sure that our focus, as important as it
    is, remains on security and does not have intentional impact.
    For example, when I was in McAllen recently, a number of people
    raised a concern about the laser visa program, which is part of
    the US-VISIT Program, so we can identify when people come in
    and then when they leave; but rather than identifying
    terrorists, what is happening is that people who have families
    on both sides of the border conduct business, spend money in
    the United States, literally own property on both sides of the
    borders, and this has had perhaps an unintentional economic
    impact on commerce along the border, rather than identifying
    terrorists or perhaps threats to our country.
        What that says to me is that I think we need to have a
    vision or a concept of what we are about. Certainly counter-
    terrorism is the most pressing concern, but all of this just
    says to me that we need to make sure that our programs are
    designed to address the threat and not people who perhaps are
    coming to this country from which we receive a net benefit
    either because of commerce--they want to come here to work or
    the like.
        In the time I have remaining, let me just ask--I know the
    lateral repatriation issue, Secretary Hutchinson, has been a
    big concern in my part of the country. I understand the impulse
    that motivated it, and that was to try to make sure that
    immigrants who came across the Arizona desert did not die in
    the process or, once they were captured, were returned to a
    place where, if they tried to come across illegally, they would
    not be stranded in the desert and perhaps suffer death. But it
    has caused a lot of concern in Texas, for example, where
    immigrants who come across from Mexico into Arizona are put on
    a plane and flown to Harlingen and places like that and then
    repatriated across the Texas border.
        I understand this is a pilot project that ends today, is my
    notation. Could you speak to the experience or perhaps lessons
    that you have learned so far and the concerns that have been
    raised and how you might like to respond to those concerns?
        Mr. Hutchinson. The first point would be that we probably
    need to do a better job of communicating with the elected
    officials who have contacted us and contacted you. I did send a
    team down to meet with the mayors and the law enforcement
    officials and explain more appropriately what we are doing,
    listen to their concerns and get their thoughts.
        The pilot project is expiring, and we will evaluate first
    of all whether this has caused any additional burden on the
    local community--looking at the arrest record, the emergency
    room admissions--to see if we have had an impact that we do not
    intend and would not want to cause on the receiving end.
        Second, we want to monitor to the extent we can those that
    we have repatriated across the border and whether they did
    return, whether we were successful in causing them to go back
    to their home cities.
        So we are going to monitor the results of this, and we do
    not want to increase the burden on the local communities there
    in Texas or anywhere else that we may repatriate the citizens
    from another area.
        I believe the preliminary information is that it has been
    successful in saving lives, which is pretty good. Second, I
    think that we have broken up that cycle of just returning them
    to their human smugglers who send them back across. But we want
    to look at the burden on the community and make sure that is
    not burdensome and that we can address it if that is a problem.
        Senator Cornyn. Ms. Harty, under current law as I
    understand it, under the Immigration and Nationality Act, visa
    revocation is not in itself sufficient for removal of an
    immigration. Is that your understanding as well?
        Ms. Harty. We have certainly seen instances, sir, where a
    visa has been revoked or prudentially revoked--that is, at
    times, we will develop information after the fact about a given
    individual. We always run that information through our system
    to see if somebody has already been issued a visa in that name.
        There are some times when that revocation is done
    prudentially because we are not certain beyond a shadow of a
    doubt that the person who has received the visa is in fact the
    subject of the new information, but we will prudentially
    revoke, and then we will make that information available
    through our partners at DHS so that we can inform them and so
    that we can inform ports of entry in case this person is not
    already in the States.
        So there are in fact cases where a prudential revocation
    might not immediately result in somebody being removed from the
    United States. It may be done prudentially just to make us take
    a very careful and considered look at the individual, who may
    or may not be the subject of the adverse information we have
    acquired.
        We have talked about this concept knowing that it has been
    the subject of other hearings, and we are going to work very
    carefully together to make sure we sew up the entire system
    just as tightly as we can to make sure that both State and DHS
    understand exactly the same things.
        Senator Cornyn. If there are impediments to enforcing our
    immigration and visa laws like that, which would not authorize
    the U.S. Government to deport somebody whose visa has expired
    or been revoked for any reason, I know that I certainly would
    like to know what we can do to address that.
        Finally, let me just say for myself and I am sure for
    others that we want to do anything and everything we can to
    work together with you. This is not a game of ``Gotcha'' or
    criticizing people who perhaps--as Secretary Hutchinson said,
    this MOU was born 3 days ago, and we know that DHS was born on
    March 1. We have a lot of history, a lot of things that need to
    be addressed, and I know that this Committee is interested in
    working with you to try to find solutions so the American
    people can be safe and so that respect for our laws--all of our
    laws--can be restored.
        Thank you.
        Chairman Chambliss. Thank you, Senator.
        Senator Craig?

    STATEMENT OF HON. LARRY E. CRAIG, A U.S. SENATOR FROM THE STATE
                                OF IDAHO

        Senator Craig. Mr. Chairman, at the outset, let me thank
    you for holding these hearings.
        Over the course of the next several years, if we dog the
    heck out of the two who are in front of us, with the work they
    are doing, we might get halfway there. And I speak respectfully
    of both of you, because it has been my observation over the
    last good number of years that we really did have a very broken
    system, and of course, we need not repeat the result of that
    breakdown. That was just the shocking result of a broken
    system.
        So we are in the midst of trying to repair it, streamline
    it, and make it work. My constituents want the borders closed,
    and I try to convince them that that is not practical or
    realistic. But we are smart enough to manage them and manage
    them as well as we can with the talents that you display and
    the resources we give you and the technologies that are
    available.
        The Chairman, Asa, asked you a question a few moments ago,
    and both of you responded to it, but there is a part of it that
    you did not respond to that I am curious about--or, maybe it
    was not as much a part of it. Do officers in the field have
    direct computer access to the consolidated watch list at the
    Terrorist Screening Center?
        Mr. Hutchinson. The Terrorist Screening Center is still
    being set up.
        Senator Craig. Will then, then? This is not a classified--
    this is a, quote, ``sensitive'' information list.
        Mr. Hutchinson. I believe the answer is yes; that obviously
    would be the intent.
        Senator Craig. Because my guess is that if they do not, if
    there has to be a filtering process, you are erecting as many
    barriers as you are trying to tear down.
        Mr. Hutchinson. You are correct. We recognize that, and we
    would want the people who are doing the job in the field to
    have access to the lists that they need to check.
        Chairman Chambliss. If I could interrupt you for just a
    second, that is a critical question right there. I thought we
    got some pretty good answers the other day on what their
    understanding is about what they are going to do with this, but
    it is critical that that information get into the hands of
    every one of your people on the ground. Otherwise, that watch
    list is not going to be very meaningful.
        Senator Craig. It is symbolic, but it is not functional.
        Chairman Chambliss. Yes. I wish you would check that to
    make sure, and if you understand anything different, get back
    to us, because we need a clear understanding of that.
        Mr. Hutchinson. If I might elaborate just a little bit, I
    see the necessity exactly the same way you do, that the people
    in the field who are looking at the visa applications need to
    be able to go on line real time and check that Threat Center
    information. That still means, then--because that is a
    terrorist watch list that is consolidated--we still need to be
    able to check additional law enforcement information, we need
    to further vet. There are going to be questions that come up.
    But that is a starting place, and they absolutely need to have
    that capability.
        Senator Craig. Then, the spinoff from that, of course, is
    the talent that is in the field and the training, and we know
    what the GAO audit said.
        Ms. Harty, as it relates to that training, your office has
    come under fire on this issue before, namely, that Consular
    Affairs has a habit of sacrificing law enforcement, if you
    will, for public diplomacy. Although Consular Affairs has taken
    steps to address this problem, I specifically want to know what
    is being done in the area of consular officer training and
    biometrics. What is the status of consular officer training? Is
    the training an ongoing process, or is there a specified
    completion date?
        Ms. Harty. Thank you for the question, sir.
        While I will answer your specific questions now, I will ask
    with your permission if I could add to the record a document
    that I have here that is 11 pages long--``Changes to the Visa
    Application Process Since September 2001''--and it includes
    information on data sharing, on training, on biometrics, as
    well as a future look.
        Senator Craig. Good.
        Chairman Chambliss. Without objection, that will be added
    to the record.
        Ms. Harty. Thank you, sir.
        Sir, on October 17, we will expand CONGEN Rosslyn, the
    basic consular officer training course, by an additional 5
    days. It took us a little time to do it, because again, we
    wanted to do it right.
        What we did was address a company in the private sector
    that in fact trains people on questioning and interrogation
    techniques. We engaged them and asked them, and they did,
    travel to several of our major visa issuing posts to look at
    how we do our business. We learned from them a number of things
    that we are now incorporating--or, will on October 17--into our
    training.
        Before that, we instituted another course called Advance
    Name Check Training--not a sexy title--but so that officers in
    the field would understand how to manipulate all the data in
    our consolidated consular database to their very best advantage
    so that they would also understand the algorithms we have in
    place for Arabic names, for Slavic names, for Hispanic names,
    and others, as we continue to develop them.
        We have also invited other agencies of Government into this
    expanded 5 days of the consular officer basic training program,
    and that will be a living, breathing training program which
    will change as situations change. As Under Secretary Hutchinson
    alluded to, we will welcome opportunities to work with DHS to
    bring their training and their techniques into our processes as
    well.
        We also have a very regular schedule of what we call
    consular leadership development conferences, as well as
    advanced consular courses. Those occur throughout the year.
    They are at mid levels and senior levels of Government. Those
    are both skills-based and also provide some leadership
    training.
        We are in constant conversation with our officers. We bring
    them back. We travel ourselves all over the world to make sure
    that people are in synch with what we are doing. We also have a
    very, very robust intranet system so that people can see all
    the time what the new changes are.
        And finally, if I might, we have issued 41 standard
    operating procedures, because I think it is very important for
    us to put in place standards so that I know, and when I come
    here and talk to you, I can say I know that the process is
    being done the same way in Buenos Aires as in Bangkok as in
    Bangladesh, so that everyone can understand exactly what the
    metes and bounds are, and naturally, those will be well-
    coordinated with Homeland Security so that we all know and
    agree on the same processes.
        Senator Craig. You have just handed us an 11-page document
    that you said encompasses the compliance with biometrics
    requirements that we put into the Enhanced Border Security and
    Visa Entry Act of 2002. Could both of you briefly speak to
    that, what you are doing in the biometrics area now to close
    the loop a bit?
        Ms. Harty. If I might start, sir, I just this morning
    received a briefing on the first of our installations of
    collection of biometric data for non-immigrant visa applicants.
    As you know, by next October, October 2004, we will have to
    have included a biometrics feature in all non-immigrant visas.
        We started over the last 2 weeks in four posts overseas--in
    El Salvador, in Guatemala, in Frankfurt, and in Brussels--and
    it has gone swimmingly, sir. We are populating a database which
    we will share with Homeland Security as soon as that system is
    ripe. We have been told that that will be before the end of the
    year.
        So we are collecting data now for several reasons. One, it
    makes sense to do it because we can. Two, every time we do it,
    we learn more about how to do it. And three, the sooner we get
    them on line, the better.
        The public reaction to it--they have been understanding,
    they have been a little bit interested in the process. It has
    been a seamless transition to collecting two fingerprints at
    those four posts. We will learn from those as we go to bigger
    posts and continue to do it, but we are on our way.
        Senator Craig. Good.
        Mr. Hutchinson. Thank you, Senator. We certainly are
    joining the Department of State in pushing our allies overseas
    to meet the biometric requirement for the October 2004 deadline
    that is coming up for visas.
        In addition, we of course are implementing the US-VISIT
    Program that has a biometric feature to it, working very hard
    so that our air and seaports next January will be a system in
    which foreign guests with visas will provide a biometric, two
    fingerprints, which will give us an ability to confirm their
    identity and also check against various watch lists.
        So security addition that will be available with that
    biometric feature, and of course, that will be expanded as time
    goes on with the US-VISIT Program.
        Senator Craig. Great. The last time State reported to this
    Subcommittee about problems associated with visa issuance, we
    were assured that many of the loopholes and inadequacies in
    State policy had either been fixed or were in the process of
    being fixed--that is, that the United States visa policy was
    being tightened, not loosened.
        However, some of us on this Subcommittee were very
    concerned with the laxity of L-1 and H-1-B visa provisions in
    the recent Singapore and Chile Free Trade Agreements. In fact,
    many of my colleagues were so concerned that the Chairman
    himself recently introduced legislation that addresses some of
    the abuses associated with L-1 visa requirements.
        My question to you, Ms. Harty, is was the State Department
    involved in formulating the visa policy found in the Free Trade
    Agreements, and if so, to what extent does this reflect State's
    current attitude toward U.S. visa policy?
        Ms. Harty. We are all for tightening up the L-1 visa
    program and policy, sir, and we would be delighted to work with
    your staff on that.
        With specific reference to those two agreements, I have to
    admit that there was an attorney advisor from our visa office
    present, but I am going to have to take the question, sir. I do
    not want to give you misinformation about the extent of his
    participation in those conversations. If I might take that
    question, we will turn it around very quickly.
        Senator Craig. Well, we would like a full recitation on the
    extent of the State Department's involvement here in the
    crafting of that provision of the trade policy. If the U.S.
    Trade Ambassador is going to get into the visa business, as
    that agreement or those trade policies clearly were, then we
    are going to get more involved also. To this Senator, that is
    unacceptable. That is your job. That is Secretary Hutchinson's
    job. The Trade Ambassador might well consult with you about
    certain needs and make recommendations.
        Now, when I say that, specifically, the L-1 visa category
    included in the Chilean and Singapore Free Trade Agreements
    does not require workers to be citizens of either Chile or
    Singapore; they must only be working for a company located in
    each respective country. However remote the chance a terrorist
    might come in through such a visa, this general policy seems to
    me rather unguarded compared to what I am hearing here today.
    That is why I think that an explanation as to your involvement
    in it and the vetting of it, if you will, into a final
    agreement is important for this Committee to understand.
        Ms. Harty. I am happy to provide that, sir, and we will
    turn that around expeditiously. I would like to add that no
    visa--no visa--is issued anywhere at any time without a full
    name check as required. That does not speak to all of your
    concerns--I know that--and I will get you the information you
    have requested. But there is no visa issued that is not
    preceded by a full name check.
        Senator Craig. Thank you both very much. We appreciate your
    presence here today.
        Thank you, Mr. Chairman.
        Chairman Chambliss. Senator Sessions?
        Senator Sessions. Thank you, Mr. Chairman.
        There is no doubt in modern law enforcement that the
    computer watch lists are just essential. If someone skips bail
    on a drug charge, people really do not worry that much about
    it; they put it in the NCIC, and sooner or later somebody picks
    him up somewhere, maybe in a different State, but sooner or
    later, they almost always get caught.
        So an effective utilization of our computerized data
    systems and coordination of those systems, making them
    available to the people most likely to apprehend the people who
    are wanted, is essential. We are so far from that in
    immigration it is just stunning. Ninety percent of the contacts
    once a person is in the United States are with State and local
    law enforcement, and they have not been given access to these
    systems, and names are not being put in the NCIC system that is
    available to them; they do not know that they can even access
    it.
        Now, Secretary Hutchinson, I really want to thank you for
    your personal leadership and assistance in bringing Alabama and
    the State troopers up-to-date on that. Fundamentally, that is a
    big issue that is important for us, and we need to keep making
    progress on that.
        Did you want to make a comment?
        Mr. Hutchinson. I agree with you. Whenever we have illegal
    aliens in this country, under a final order of removal, a local
    law enforcement official who stops them on the highway ought to
    have that information.
        Senator Sessions. And they do not have it today.
        Mr. Hutchinson. They have a limited amount of it. We have--
        Senator Sessions. Basically, the average trooper, if he
    runs a name at all, it would be the NCIC; correct?
        Mr. Hutchinson. Right.
        Senator Sessions. And that information is not in there.
        Mr. Hutchinson. We are putting it in NCIC. It is not 100
    percent in there. And that is what I am pushing to accomplish,
    because you are right on the objective--we are--
        Senator Sessions. So you are making progress.
        Mr. Hutchinson. We are making progress. First of all, we
    have the system set up so it can receive the information, the
    policy changes at the Department of Justice that were needed,
    and then we are actually--
        Senator Sessions. So the policy changes have been approved?
        Mr. Hutchinson. That is my understanding. I think we have
    10 percent. I am pushing to get more of those--
        Senator Sessions. If not, we would like to know.
        Mr. Hutchinson. So we are putting them in there; it is just
    not as fast as I would like it. So we are working to speed that
    up.
        Senator Sessions. Thank you.
        Briefly, I would like to ask Secretary Harty this question.
    If an individual comes into an embassy and wants to come to the
    United States, and there is a suspicion, though not proof, that
    this individual may be connected to a dangerous terrorist
    organization, can the consular official there reject that
    application?
        Ms. Harty. Oh, absolutely, sir; there is no doubt at all.
        Senator Sessions. Now, Mr. Hutchinson, if an individual
    comes into this country, and you do not have that information--
    they are approved for entry--and through investigation or other
    things, evidence comes forward that a person already admitted
    to the United States, there is a suspicion, but not proof by a
    preponderance of the evidence or reasonable doubt, but a
    reasonable suspicion--which is a legitimate legal standard, as
    the former United States Attorney Hutchinson knows--that they
    may be connected to a terrorist organization, can they be
    removed from the country?
        Mr. Hutchinson. They can be removed from the country, but
    certain legal processes have to precede that.
        Senator Sessions. And if I am not mistaken, the burden of
    proof is considerably higher on removing a person from the
    country than on the embassy allowing him to come in in the
    first place; is that not correct?
        Mr. Hutchinson. That is correct.
        Senator Sessions. It seems to me that entry into the United
    States is by permission--it is a permissive act--and that if
    for any reason the host country believes a person may be a
    threat to them, we ought to be able to remove them without
    proof beyond a reasonable doubt or preponderance of the
    evidence.
        Have you given any thought to asking for a change in that
    procedure that would reduce such standard?
        Mr. Hutchinson. Yes.
        Senator Sessions. I know that we would not want to abuse
    this. You do not want a visitor to this country being routinely
    challenged and sent back. But I do not think there is any
    likelihood that it would be abused. I think it would be a
    circumstance--if it is connected to terrorism, at least--that
    we ought to change that standard.
        Mr. Hutchinson. Yes, we are looking at that. I believe
    there is a need to address that. I have asked for regulations
    to be drafted to change that procedure.
        Obviously, if someone is in this country and their visa is
    pulled by the State Department or there is information, they
    may request asylum, which entitles them to certain legal
    rights, they may be concerned about rights under the Torture
    Convention. So they are entitled to a proceeding in court, but
    we want to make sure that we can expeditiously move on that, so
    we are looking at a regulatory change to lessen that burden if
    appropriate.
        Senator Sessions. I just think that when we have any nation
    that allows a person to come here by permission, has a right to
    rescind that permission, and it is not something we ought to be
    intimidated about, and it is not like locking an American
    citizen in jail that you have a high burden of proof for.
        There are over 400,000 alien absconders within our borders,
    we understand, and to me, in another hearing, we can talk a
    little more about making that available to local law
    enforcement. You have made a lot of progress. This memorandum
    of understanding is real progress.
        It is frustrating--it seems to me it could be made faster.
    When these agencies meet, Mr. Chairman, it is like great
    nations meeting; they have conferences and representatives, and
    they sign agreements. You would think that if they were all
    part of the same Government, it would not be so difficult. But
    great institutional bureaucracies are involved, and a lot of
    complicated issues are involved.
        I thank you for pursuing it. I intend, as Senator Craig
    says, to continue to push for that kind of reform because I
    think it is important for our safety.
        Thank you, Mr. Chairman.
        Chairman Chambliss. Thank you, Senator.
        I will address this to both of you. Since State answered
    the question, Secretary Harty, it may be yours to answer, but
    it does involve you, too, Secretary Hutchinson.
        We held a hearing in July on the visa revocation loophole
    that allowed a number of potential terrorists into the United
    States. In the State Department's responses to written
    questions, the Department wrote that ``State is willing to
    share its ineligibility code with the Department of Homeland
    Security, which holds the key to why a visa is revoked based on
    watch list information. But DHS does not accept the code from
    the State Department.''
        Can you all explain that? Why is that?
        Ms. Harty. I believe that at the time of that testimony,
    sir, that was in fact that case, and we have now fixed that
    system. We have three different ways of making sure that we
    share the information in a timely fashion, in a way that is
    user-friendly to both sides.
        Chairman Chambliss. Good.
        Lastly, we have talked a lot, and Asa, you particularly
    know that one of my major focuses has been information sharing.
    We have talked primarily about sharing information from the
    Federal level down to the State and local level, but there is
    another component, too. The more we do that and the more that
    line of communication is opened up, it gives us the opportunity
    to receive information at the Federal level from the State and
    local level.
        Could you enlighten me as to how we are opening up those
    lines so that we can receive information from the State and
    local level to be fed into your system on individuals?
        Mr. Hutchinson. One of the primary means of doing that
    would be through the Joint Terrorism Task Forces that are
    located in each State under the leadership of the Department of
    Justice. Every law enforcement agency is participating in that.
    Homeland security officers are in those Joint Terrorist Task
    Forces and, most important, local officers are. So that as
    information is received from local law enforcement, that is the
    best vehicle. That way, it is made available to the Nation, to
    the leadership in Washington, but to every district that might
    have a basis to have that information.
        There are other mechanisms through which the information
    flows in the Department of Homeland Security. It would flow
    also through immigration and customs enforcement and their
    contacts with local law enforcement, the border patrol and
    their relationships. But the most formalized structure--and it
    needs to be made very effective--would be the JTTFs, Joint
    Terrorism Task Forces.
        Chairman Chambliss. Well, to both of you, let me just say
    that the challenge you have had and still do have is very
    awesome and very daunting, but I am very pleased with the
    progress that you have come here today to report, and I am glad
    we delayed this hearing for a week, Secretary Hutchinson,
    number one, to get you back safely, but to allow for the
    completion of this Memorandum of Understanding, which is huge.
    I commend both of you for your hard work and dedication, as
    well as your staff, to getting that done.
        This is going to continue to be an issue that we are going
    to conduct very stringent oversight on, because I think it is
    so critically important to winning this war on terrorism. We
    look forward to continuing the dialogue with you and continuing
    to work with you as we move down the road toward making America
    safer.
        Mr. Hutchinson. Mr. Chairman, excuse me. Would you indulge
    me just to let me join you in thanking our staffs who worked so
    hard on it, both Maura's staff, but also the staff in the front
    row here have been very instrumental in bridging the gap
    between Homeland Security and the Department of State.
        Chairman Chambliss. Certainly. If you will, because there
    will be a record on this, how about just giving us the names of
    your staff that you would like to include in the record,
    because we would like to make sure that they understand how
    much we appreciate their hard work.
        Ms. Harty. We are happy to do that. Thank you so much, sir.
        Chairman Chambliss. Great.
        We are going to leave the record open for 7 days. There
    will be written questions, I am sure, that may be submitted by
    some members who could not be here to each of you, and if you
    could be very prompt in getting those back, we would appreciate
    that.
        Again, thank you for your good work, thanks for being here
    today, and this hearing is adjourned.
        [Whereupon, at 3:25 p.m., the Subcommittee was adjourned.]
        [Questions and answers and submissions for the record
    follow.]
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