[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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                       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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