    [Senate Hearing 108-570]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 108-570

      STATE AND LOCAL AUTHORITY TO ENFORCE IMMIGRATION LAW: EVALUATING A
                    UNIFIED APPROACH FOR STOPPING TERRORISTS

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

                                    HEARING

                                   before the

          SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY AND CITIZENSHIP

                                     of the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                          ONE HUNDRED EIGHTH CONGRESS

                                 SECOND SESSION

                                   __________

                                 APRIL 22, 2004

                                   __________

                              Serial No. J-108-70

                                   __________

             Printed for the use of the Committee on the Judiciary

                        U.S. GOVERNMENT PRINTING OFFICE
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    ____________________________________________________________________________
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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

                                  ----------

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia..     1
        prepared statement...........................................    47
    Cornyn, Hon. John, a U.S. Senator from the State of Texas........     7
    Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
      prepared statement.............................................    86
    Kennedy, Hon. Edward M., a U.S. Senator from the State of
      Massachusetts..................................................     3
        prepared statement...........................................    95
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
      prepared statement.............................................   122
    Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     4

                                   WITNESSES

    Harris, David, A., Balk Professor of Law and Values, and Soros
      Senior Justice Fellow, University of Toledo College of Law,
      Toledo, Ohio...................................................    15
    Kobach, Kris W., Professor of Law, University of Missouri-Kansas
      City, Kansas City, Missouri....................................     9
    Malkin, Michelle, Investigative Journalist and Author, Bethesda,
      Maryland.......................................................    12
    Picolo, E.J., Regional Director, Florida Department of Law
      Enforcement, Fort Myers, Florida...............................    11

                           SUBMISSIONS FOR THE RECORD

    Advocates for immigrant victims of crime, April 20, 2004, joint
      letter.........................................................    34
    American Council for Immigration Reform, Joan Hueter, President,
      Arlington, Virginia, letter....................................    40
    Americans for Tax Reform, Grover G. Norquist, President, Hon. Bob
      Barr, former Member of Congress, American Conservative Union
      Foundation, David Keene, President, American Conservative,
      Washington, D.C., letter.......................................    41
    Anti-Defamation League, David Schaefer, Chair, Washington Affairs
      Committee, Marvin Nathan, Chair, National Civil Rights
      Committee, New York, New York, letter..........................    43
    Cambridge City Council, D. Margaret Drury, City Clerk, City Hall,
      Cambridge Massachusetts, letter and resolution.................    45
    Center for Immigration Studies, James R. Edwards, Jr., April
      2003, Backgrounder, Washington, D.C., article..................    49
    Council on American-Islamic Relations, Nihad Awad, Executive
      Director, Washington, D.C., letter.............................    60
    Department of Homeland Security, Immigration and Customs
      Enforcement, Washington, D.C., prepared statement..............    62
    Douglass, John M., Chief of Police, Overland Park Police
      Department, Overland Park, Kansas, letter......................    74
    Federal Hispanic Law Enforcement Officers Association, Sandalio
      Gonzalez, National President, Yuma, Arizona, letter............    75
    Friends of Immigration Law Enforcement, Craig Nelsen, Executive
      Director, Washington, D.C., letter.............................    77
    Harris, David, A., Balk Professor of Law and Values, and Soros
      Senior Justice Fellow, University of Toledo College of Law,
      Toledo, Ohio, prepared statement...............................    78
    Heritage Foundation, James Jay Carafano, Ph.D., April 21, 2004,
      Washington, D.C., memorandum...................................    88
    Human Rights Watch, Alison Parker, Senior Researcher, U.S.
      Program, Wendy Patten, U.S. Advocacy Director, New York, New
      York, statement................................................    90
    Krikorian, Mark, Executive Director, Center for Immigration
      Studies, Washington, D.C., statement...........................    99
    Kobach, Kris W., Professor of Law, University of Missouri-Kansas
      City, Kansas City, Missouri, prepared statement................   109
    Lemus, Gabriela D., LULAC News, article..........................   124
    Malkin, Michelle, Investigative Journalist and Author, Bethesda,
      Maryland, prepared statement...................................   125
    Mexican American Legal Defense and Educational Fund, Katherine
      Culliton, Legislative Staff Attorney, Washington, D.C.,
      statement......................................................   134
    Miller, Ronald, Chief of Police, Kansas City Police Department,
      Kansas City, Kansas, letter....................................   143
    National Association of Counties, Larry E. Naake, Executive
      Director, Washington, D.C., letter.............................   144
    National Council of La Raza, Michele Waslin, Ph.D., Washington,
      D.C., Brief....................................................   146
    National Immigration Forum, Washington, D.C.:
        Letter, September 16, 2003...................................   166
        Letter, September 30, 2003...................................   173
        Letter, August 26, 2003......................................   174
        Letter, September 30, 2003...................................   175
        Article, November 12, 2003...................................   177
    National League of Cities, Donald J. Borut, Executive Director,
      Washington, D.C., letter.......................................   181
    New Detroit, The Coalition, Detroit, Michigan, letter............   183
    Norquist, Grover G., President, American For Tax Reform,
      Washington, D.C., statement....................................   186
    Officers of law enforcement, April 21, 2004, joint letter........   189
    Orloff, Leslye E., Director, Immigrant Women Program, Legal
      Momentum and Co-chair of the National Network to End Violence
      Against Immigrant Women, Washington, D.C., statement...........   194
    Picolo, E.J., Regional Director, Florida Department of Law
      Enforcement, Fort Myers, Florida, prepared statement...........   224
    RoperASW, Arlington, Virginia, March 2003, report................   230
    San Diego County Board of Supervisors, Thomas P. Walters,
      Washington Representative, Washington, D.C., letter............   256
    Washington Times, James Edwards, Jr., June 1, 2003, article......   257

      STATE AND LOCAL AUTHORITY TO ENFORCE IMMIGRATION LAW: EVALUATING A
                    UNIFIED APPROACH FOR STOPPING TERRORISTS

                                  ----------

                            THURSDAY, APRIL 22, 2004

                                  United States Senate,
              Subcommittee on Immigration, Border Security and
                       Citizenship, Committee on the Judiciary,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 3:08 p.m., in
    Room SD-226, Dirksen Senate Office Building, Hon. Saxby
    Chambliss, Chairman of the Subcommittee, presiding.
        Present: Senators Chambliss, Sessions, Cornyn, and Kennedy.

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

        Chairman Chambliss. The Subcommittee will come to order. I
    am glad we are able to have this hearing today and I appreciate
    my colleagues, Senator Cornyn and Sessions, for being here. I
    know that Senator Kennedy is on the way, and there are going to
    be others joining us before we conclude today.
        I particularly want to thank Senator Sessions for his
    efforts in this area. I know he has worked very hard on this
    issue and has a bill pending before the Senate and we look
    forward to your input here today.
        I also appreciate the work of my colleagues, Senator Zell
    Miller and Congressman Charlie Norwood of my State, who have
    also worked very hard on this. Congressman Norwood, of course,
    has a bill over on the House side.
        This is an important topic that covers both our anti-
    terrorism efforts and the changes needed in our immigration
    system. In the post-9/11 world, it is critical for us to think
    about immigration and national security with a consistent
    approach.
        I think there is a consensus that our immigration laws are
    in dire need of reform and today's hearing is another step
    towards a comprehensive review. The system we have in place
    today lacks incentives for immigrants to come to the United
    States following the legal process in place. It also lacks
    enforcement against those who choose not to follow the legal
    process. It is my hope that we may continue the open dialogue
    that the President has initiated and all Senators will continue
    to work on the policy we have been addressing so far in this
    Congress.
        There are some disturbing facts that show just how serious
    a lack of immigration enforcement can be. Three of the 19
    hijackers on September 11 were stopped by State or local law
    enforcement officials in routine traffic stops in the weeks
    leading up to the attacks on our Nation. In August 2001, in
    Arlington, Virginia, a police officer stopped Hani Hanjour for
    going 50 miles an hour in a 30-mile-per-hour zone. He was
    driving a van with New Jersey plates and produced a Florida
    driver's license to the officer. Hani Hanjour was aboard
    American Airlines Flight 77, which crashed into the Pentagon.
        On September 9, 2001, 2 days before the September 11
    attack, Maryland State Police stopped Ziad Jarrah for driving
    90 miles an hour in a 65-mile-per-hour zone in a rural section
    of I-95 near the Delaware State line. A videotape of the stop
    shows the State trooper approaching the car, obtaining the
    driver's license and registration, and returning to his patrol
    car for a radio check of the credentials. Jarrah, who was on
    the CIA watch list, was given a ticket and allowed to go. The
    registration showed the car Jarrah drove that night was owned
    by Garden State Car Rental at Newark, New Jersey's
    international airport. The car was found at the airport after
    the September 11 hijackings with the citation received by
    Jarrah still in the glove box. Jarrah had boarded United Flight
    93 that crashed in Shanksville, Pennsylvania.
        Finally, Mohammed Atta was stopped by police in Tarmac,
    Florida, in July 2001 and was ticketed for having an invalid
    license. He ignored the ticket and a bench warrant was issued
    for his arrest. He was stopped a few weeks later in a town
    nearby for speeding and the officer, unaware of the bench
    warrant, let him go with a warning. Hijacker Mohammed Atta is
    believed to have piloted American Airlines Flight 11 into the
    World Trade Center's north tower.
        There is clearly a seriousness to today's discussion. We
    need the laws to curb illegal behavior and to stop the bad
    guys. We also need laws that can be enforced and will be
    enforced. I am eager to begin that discussion, and I appreciate
    our witnesses being here today.
        Our witnesses are Professor Kris W. Kobach, former Counsel
    to the Attorney General, now professor of law at the University
    Missouri-Kansas City School of Law, Kansas City, Missouri.
    Professor Kobach, we are certainly glad to have you with us.
        Mr. E.J. Picolo, Regional Director, Florida Department of
    Law Enforcement from Fort Myers, Florida. Mr. Picolo, we are
    pleased to have you here.
        Michelle Malkin, investigative journalist and author, from
    Bethesda, Maryland. Ms. Malkin, we are certainly glad to have
    you here.
        And David A. Harris, Balk Professor of Law and Values,
    University of Toledo College of Law, Toledo, Ohio. Professor
    Harris, we are certainly pleased to have you here.
        Before we turn to our panel, and anticipating the arrival--
    here is Senator Kennedy right here. I will turn to my friend
    and colleague, Senator Kennedy, for any comments he wishes to
    make in the form of an opening statement.

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

        Senator Kennedy. Thank you. Thank you very much, Mr.
    Chairman, and I appreciate your courtesy, as always. I thank
    the witnesses for their patience here in working with us on the
    Senate schedule.
        In the past 2 years, Congress has done much to respond to
    the terrorist attacks of 9/11. We have authorized the use of
    force against terrorists and those who harbor them. We have
    enacted legislation to strengthen security at our airports,
    seaports, borders, and have given law enforcement intelligence
    officials greater powers to investigate and prevent terrorism.
        But not every measure or action proposed after 9/11 has
    been effective, legal, or fair. The Attorney General has used
    the fear of terrorism to justify actions that affect the most
    basic rights in our society, and one of the most controversial
    and counterproductive policies the Justice Department has
    pronounced is the use of State and local law enforcement
    agencies to enforce the immigration laws.
        A Heritage Foundation paper published yesterday criticizes
    the very legislation that this hearing is examining today, and
    I also have many letters and statements from law enforcement
    agencies, domestic violence advocates, and other organizations,
    liberal and conservative, proposing this policy and I would
    like to submit these documents for the record.
        Chairman Chambliss. Certainly, without objection.
        Senator Kennedy. Mr. Chairman, the Heritage paper sums it
    all up for us. The proposed policy, quote, ``takes exactly the
    wrong approach, inappropriately burdening State and local
    enforcement and providing insufficient protections for civil
    liberties.'' It is unnecessary because adequate authority
    already exists. Besides unreasonably burdening local law
    enforcement, irreparably damaging community policing and
    undermining the safety of our neighborhoods, this policy will
    impose heavy financial costs on State and local governments.
        The Congressional Budget Office cost estimate says that
    implementing a proposal like this will cost $9 billion over a
    5-year period. That is a lot of money spent on a policy that
    many law enforcement and security experts believe will
    undermine national security.
        Since 9/11, security experts have repeatedly stated that
    good intelligence is the key to national security. Helpful
    information comes from all sources, including immigrants. Local
    communication shuts down. Immigrants are afraid to approach law
    enforcement officials. We will forfeit important information
    and jeopardize the security of our Nation. At this critical
    time, we must keep all lines of communication open. We cannot
    afford to undermine the trust of entire communities nor destroy
    the successes that police departments throughout the United
    States have achieved through community policing.
        If this policy is implemented, it would effectively create
    a class of criminals that would be immune to prosecution.
    Immigrant victims of crime or witnesses would not report crimes
    or seek assistance for fear of being arrested by the police.
    Criminals would not be held accountable for their actions
    because no one will come forward.
        State and local enforcement of immigration laws also
    invites discrimination and racial profiling since local police
    do not now receive adequate training to understand our complex
    and ever-changing immigration laws. In fact, none of the bills
    pending in Congress mandates such training. Local police will
    not be able to distinguish between an immigrant who is here
    legally and another who is not.
        Current law also provides ways to create effective
    partnerships between local law enforcement offices and Federal
    agents. States and localities can enter into memorandums of
    understanding with the Federal Government to confer civil
    immigration law enforcement powers on their local officers
    after extensive training in immigration. Florida and Alabama
    already utilize these MOUs. This MOU policy gives States the
    option and the flexibility to use use of their police in ways
    that meet the real needs of their residents.
        So I commend the chair for calling this important hearing,
    look forward to the testimony. We need to achieve the right
    balance between protecting our country from terrorism and
    respecting the rights of our citizens and immigrants, and I am
    confident we can strike a fair and effective balance without
    mandating State and local enforcement of Federal immigration
    laws. I thank you, Mr. Chairman.
        Chairman Chambliss. Thank you.
        I now turn to Senator Sessions for any opening statement
    you might wish to make.

    STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
                               OF ALABAMA

        Senator Sessions. Thank you, Mr. Chairman, very much for
    having this hearing. The topic that we are having today is one
    that I care deeply about. It is the ability of State and local
    law enforcement to voluntarily aid--to voluntarily aid--the
    Federal Government in enforcement of immigration law, and the
    bill that I have offered and Senator Zell Miller and Larry
    Craig and others have cosponsored is not the clear act referred
    to by Senator Kennedy and does not require State and local law
    officers to do anything. It gives them the ability to do so,
    but it does not require them to do so.
        The bill that I have offered, and it won't be the detailed
    subject, as I understand, of today's hearing, will clarify the
    authority of State and local police to act voluntarily. It will
    ensure that State and local police have access to immigration-
    related information through NCIC, which has not cleared it, not
    today, and will increase Federal detention and removal
    resources to support those local law enforcement officers.
        Just as the Chairman said in his opening comments, many
    times, it is these officers out enforcing traffic regulations
    that come in contact with the most dangerous of criminals. S.
    1906 does not commandeer State and local law enforcement and
    does not require them to do anything.
        I am proud that Alabama, along with Florida, have entered
    into memorandums of understanding with the Department of
    Homeland Security to be extensions and effective extensions of
    their ability to enforce these laws. I think that is a healthy
    thing. But it is a big deal and a complicated procedure and the
    fundamental value of a police officer on the street should not
    be denied simply because they haven't gone to a two-week
    school.
        We need comprehensive reform in immigration, as the
    Chairman said, but I don't believe we will achieve that until
    we have integrity in the system. That means a lot of things.
    One of the things it means is we cannot push aside the 650,000
    State and local officers as we currently do and say to them,
    don't bother with immigration enforcement. It is a signal that
    we have no interest in getting a handle on the terrorists who
    come into our country and no interest in enforcing our laws.
        A lack of immigration enforcement in our country's interior
    has resulted in eight to ten million illegals in this country,
    making it easy for criminal aliens to just disappear within our
    borders. Of those here illegally, the Department of Homeland
    Security has estimated that 450,000 are alien absconders, that
    is, people who are under court order and just absconded and
    disappeared. Eighty-six thousand are criminal illegal aliens,
    people convicted of crimes, subject to being deported, in this
    country and they have disappeared and been released, and 3,000
    of those are from countries designated by the State Department
    as state sponsors of terrorism.
        So why can't we just find and deport these absconders,
    criminal aliens, and terrorist threats? The answer is simple.
    Leaving the job of interior immigration enforcement solely to
    the mere 2,000 Federal interior agents inside our borders
    guarantees failure. The number of illegal aliens outweighs them
    5,000 to one. It is obvious that State and local police, a
    force of 650,000 strong, sworn to uphold the law, with powers
    to arrest mayors and Governors and, yes, United States
    Senators, certainly should be allowed to enforce immigration
    laws and should have the power to arrest those who are
    illegally here and not citizens of the United States.
        We know the American people care about this strongly. I
    have a poll, I just would point out, that came out last March,
    a Roper poll, ``Americans Talk About Immigration.'' Eighty-
    eight percent of Americans agree, and 68 percent strongly
    agree, that Congress should require State and local law
    enforcement agents to notify INS, now ICE, the local law
    enforcement, when a person is here illegally or presented
    fraudulent documentation.
        It is also clear that, additionally, 85 percent of
    Americans agree, 62 percent strongly agree, that Congress
    should pass laws requiring State and local law enforcement
    agencies to apprehend and turn over to INS illegal immigrants
    with whom they come in contact. In fact, they are shocked it is
    not happening now.
        It is clear that the first problem preventing State and
    local law enforcement from participating in immigration
    enforcement is confusion over authority, Mr. Chairman. A few
    years ago, police from Alabama started telling me that they
    have given up on calling INS because INS tells them they have
    to have 15 or more illegals before they would bother to come
    and pick them up. This is the pattern all over America. They
    were basically told also they could not detain people and wait
    for INS to come. So they were told, in effect, no matter who
    you apprehend, to let them go. So I believe that telling police
    this is wrong. It is unwise and we can fix it.
        Only two circuits, the Tenth and Ninth, have expressly
    ruled on State and local law enforcement authority to make
    arrests on immigration law violations. Both of them confirm
    that authority. The only confusion that exists really is dicta
    in a 1983 Ninth Circuit case which addressed whether the
    authority to investigate and make arrest changes if the
    immigration violation is a civil one and not a criminal.
        This confusion was fostered by a Department of Justice
    memorandum in 1996 from the Office of Legal Counsel. However,
    the relevant section of that opinion has since been withdrawn
    by the Department of Justice. While the confusion seems minor,
    the threat of lawsuits and of confusion over authority has, in
    effect, helped paralyze State and local police who are willing
    to participate.
        Problem number two, the Federal agency responsible for
    immigration enforcement told police chiefs in Alabama to let
    them go, mainly because they didn't have the personnel to pick
    them up or the detention space to detain all apprehended
    aliens. A mere 2,000 officers and less than 20,000 appropriated
    detention beds, we have got to have more attention to that
    issue.
        In February of 2003, a DOJ Inspector General report
    entitled ``Immigration and Naturalization Service Removal of
    Aliens Issued Final Orders'' found that 87 percent of those not
    detained before an order of removal was issued were never
    deported--87 percent. Dedicating the Federal resources needed
    to effectively pick up and detain illegal aliens apprehended
    and arrested by State and local law offices is a necessity if
    we are serious about enforcement.
        Problem number three, the first recommendation of the Hart-
    Rudman Commission, the Commission's report entitled ``America
    Still Unprepared, America Still in Danger,'' that bipartisan
    report, their first recommendation was, quote, ``to tap the
    eyes and ears of State and local law enforcement officers in
    preventing attacks,'' and examples you read at the beginning,
    Mr. Chairman, are just what we are talking about. The report
    specifically suggested that ``the burden of identifying and
    intercepting terrorists in our midst could and should be shared
    with America's 650,000 county, State, and local law enforcement
    officers, but they clearly cannot lend a hand in a
    counterterrorism information void,'' close quote.
        The burden could and should be shared with America's
    650,000 State and local officials, but they cannot lend a hand
    in an information void. State and local police are accustomed
    to checking for criminal information in the National Crime
    Information Center database, which is maintained by the FBI.
    They can access it from roadside when they pull a car over or
    to stop a suspect.
        But separately, ICE operates the Law Enforcement Support
    Center, which makes immigration information available to State
    and local police, but it requires a second check, an additional
    check to NCIC by the local police officer. This second check is
    not known by most officers. They don't know how to access it.
    They have no idea who to call and they are not doing so and it
    does not work. It should be in the main system without doubt.
        As part of its Alien Absconder Initiative, ICE is already
    in the process of entering information on the estimated 450,000
    absconders in the NCIC. But as of October 31, only 15,000 of
    those 450,000 had been entered in the NCIC, a number I find
    just unacceptable. And by February of this year, ICE had
    increased the number of illegal absconders in NCIC from 15,000
    to a mere 25,000, a number still totally unacceptable.
        In a letter to me on February 12 of this year, ICE said it
    was committed to using NCIC to its maximum effectiveness as a
    tool for sharing immigration-related information. Therefore,
    entry of alien absconders must rapidly increase and additional
    immigration-related information must be entered into the NCIC.
        I know that there are groups that are opposed to this.
    Essentially, I would conclude that every time a proposal is set
    forth that has any significant capacity to actually work,
    identify and remove people who have violated the laws of the
    United States, those matters draw objections and the objections
    are for a host of different reasons, but they all have one
    goal, to frustrate a system that actually works.
        It is time for us to reform immigration law, as I know the
    Chairman believes, and make it better and allow more good
    people to come to this country who are entitled to this
    country. We are a nation of immigrants. We welcome immigrants
    who want to come here and we can increase that number that is
    coming legally, but at the same time, we need to make clear
    that those who do not follow the law will be apprehended and
    detained and the best course is to come legally rather than
    illegally.
        Thank you, Mr. Chairman, for allowing me to take a little
    extra time to share those thoughts.
        Chairman Chambliss. Thank you.
        We will now turn to Senator Cornyn for any comments you
    have or for an opening statement.

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

        Senator Cornyn. Thank you, Chairman Chambliss. I want to
    also express my gratitude to you for holding this hearing and
    other hearings you have had on related matters pertaining to
    immigration law reform. This is relevant, it is current, and
    the issue is not going away and we might as well come to grips
    with it.
        I am very interested in exploring the issues that are being
    raised in this particular hearing because my professional
    background as a judge and Attorney General has taught me that
    in a nation of laws, the failure to respect any of those laws
    leads generally to the disrespect for all the laws. I don't
    think that law enforcement should have the liberty nor should
    they be denied the resources such that they merely pick and
    choose which laws to enforce and what laws they will ignore. I
    believe that we can and we should enforce all of our laws.
        Now, let me be clear. I don't think we should federalize
    our State and local police forces and that is not what I
    understand this issue to be. What I understand the issue to be,
    and I think Senator Kennedy put his finger on two of those, one
    is the cost and the other has to do with training. To me, those
    are absolutely essential ingredients in doing what this hearing
    suggests might be a viable option.
        I don't believe we should go down the path of unfunded
    mandates that burden already strapped State and local police
    departments. Yet at the same time, it makes sense to me that we
    explore the possibility of having 650,000 State and local law
    enforcement officials, who are by their very nature the eyes
    and ears of the community, work with and not against the
    Federal Government when it comes to enforcing our immigration
    laws.
        As we all know, the Department of Homeland Security, and
    Senator Sessions mentioned this, has about 2,000 interior
    enforcement agents who are simply overwhelmed. They are
    overwhelmed by the 800,000-plus illegal entries in this country
    each year in the late 1990's. As we all know, Mr. Chairman,
    from previous testimony at other hearings, they are overwhelmed
    in almost every sense of the word. They are drowning in a very
    difficult challenge when it comes to enforcing our immigration
    laws and I think we ought to give them the help that they need
    in order to do what America needs, and that is to enforce our
    laws.
        Now, we have heard the argument that any information shared
    by State and local law enforcement authorities with the Federal
    immigration officials will destroy community policing
    initiatives as a crime-fighting tool. Certainly, community
    policing initiatives are vital tools used by law enforcement
    all across the country. But I am simply not convinced that
    voluntary cooperation and information sharing by State and
    local officers with Federal immigration enforcement officials
    will make communities less safe. To the contrary, I think it
    seems almost self-evident that it will make communities more
    safe if it is done the right way.
        So I look forward to hearing today's testimony. I am
    specifically interested to hear how we can ensure that State
    and local governments are not financially burdened if Senator
    Sessions' bill or something like it is enacted, and I am
    concerned by the provisions that eliminate certain SCAAP
    funding because, of course, that has a huge impact on the State
    of Texas. Right now, the Federal Government does a very poor
    job of living up to its responsibilities with the financial
    burdens that are being borne by border States when, in fact, it
    is the Federal Government's responsibility, and this is just
    one area. So I am very interested in hearing what impact this
    type of legislation might have on that State Criminal Alien
    Assistance Program funding.
        And with that, thank you again, Mr. Chairman.
        Chairman Chambliss. Thank you, Senator Cornyn.
        We will now proceed to our panel, and I would tell each of
    you that we have your full statement, which will be entered in
    the record, and we would ask that you summarize that statement.
        Professor Kobach, we will start with you.
        Senator Sessions. Mr. Chairman, could I just make one
    point? I know that several bills have floated similar to this,
    but in the legislation I am offering, there would only be--
    SCAAP monies would only be in jeopardy if the State or locality
    actually stated a policy prohibiting communications between
    Federal and local law enforcement over immigration issues. A
    few may have done that, but none, that I know of, significant
    departments have done that.
        Chairman Chambliss. So noted for the record.
        Professor Kobach?

     STATEMENT OF KRIS W. KOBACH, PROFESSOR OF LAW, UNIVERSITY OF
              MISSOURI-KANSAS CITY, KANSAS CITY, MISSOURI

        Mr. Kobach. Thank you, Mr. Chairman, Senators. As has been
    noted, the 9/11 terrorists were able to enter our country
    undetected. Three overstayed their visas with impunity and all
    moved relatively freely throughout the country without
    effective interference from local law enforcement. It is also
    clear that the effective assistance of State and local law
    enforcement can mean the difference between success and
    failure, not only in enforcing our immigration laws, but in the
    war against terrorism on the domestic front.
        But what I would like to do is briefly summarize the legal
    authority upon which State and local police may act. That is
    the legal authority aside from provisions of delegated
    authority in Section 287(g).
        It has long been recognized that there is this legal
    authority for State and local police to arrest aliens who have
    violated criminal provisions of the Immigration and Nationality
    Act. Where some confusion has existed, as Senator Sessions
    mentioned, in recent years is on the question of whether that
    same authority extends to civil provisions of the INA. This
    confusion was, to some extent, fostered by an erroneous 1996
    opinion of the Office of Legal Counsel of the Department of
    Justice. The relevant provision has since been withdrawn by
    OLC.
        However, the law on this is quite clear. Arresting aliens
    who have violated either the criminal provisions of the Act or
    the civil provisions that render them deportable is within the
    inherent authority of the States, as the Attorney General has
    said, and such inherent arrest authority has never been
    preempted by Congress. This conclusion has been confirmed by
    every court to squarely address the issue. That said, I will
    proceed to offer my personal opinion as to why this conclusion
    is correct and I offer this analysis purely in my capacity as a
    law professor and not as a representative of the Bush
    administration.
        It is well established that the authority of State and
    local police to make arrests for violation of Federal
    immigration law is not limited to those--or Federal law of any
    sort--is not limited to those situations where they are
    exercising delegated Federal power. Rather, such arrest
    authority inheres in the States' status as sovereign entities.
    This is the same inherent authority that exists when, say, a
    State law enforcement officer observes the commission of a
    Federal crime and goes ahead and makes the arrest. That officer
    is not acting pursuant to some delegated Federal power. Rather,
    he is simply exercising inherent power of one sovereign to
    assist another sovereign, and there is abundant case law on
    this point. I would direct the Committee to U.S. v. Di Re and
    Millier v. United States.
        The Ninth and Tenth Circuits have expressed this
    understanding in the immigration context specifically. The
    Tenth Circuit has reviewed the question on several occasions,
    concluding squarely that, quote, ``a State trooper has general
    investigative authority to inquire into possible immigration
    violations,'' end quote. That is from Salinas-Calderon.
        Having established that this inherent authority exists, the
    next legal question is whether such authority has been
    preempted by Congress. In all forms of Congressional preemption
    that our courts recognize, there must be some manifest intent
    of Congress to preempt and displace this existing State
    authority, and the critical starting assumption has to be that
    the Federal Government does not normally intend to deny itself
    any assistance that the States might offer, and that
    presumption is a long-established one from the case of Marsh v.
    United States.
        But beside those presumptions as they are, in 1996,
    Congress expressly put to rest any suspicion that it did not
    welcome State and local assistance in making arrests in
    immigration law. Congress added Section 287(g) of the INA
    providing for these written agreements, but in doing so,
    Congress stated that a formal agreement is not necessary for,
    quote, ``any officer otherwise to cooperate with the Attorney
    General in the identification, apprehension, detention, or
    removal of aliens not lawfully present in the United States,''
    end quote. That is from 1356(g)(10).
        Moreover, the case law supporting the conclusion that
    Congress has not preempted State arrests of aliens for civil
    provisions of the INA is solid and on point. Again, looking at
    the Tenth Circuit, you have the case of U.S. v. Vasquez-Alvarez
    in 1999. I would also direct the Committee to the Fifth Circuit
    opinion in Lynch v. Canatella in 1987.
        Finally, on the subject of preemption, it must be noted
    that if there were a conclusion that somehow the preemption had
    occurred in the criminal arrest authority but not in the civil
    arrest authority, then that conclusion would have to be reached
    through what is called field preemption. But field preemption
    would require a conclusion, or somehow would require us to
    believe that there is a pervasive regulatory scheme in civil
    violations of the Act, but there is not a pervasive regulatory
    scheme in criminal violations of the Act. That is, to put it
    lightly, absurd.
        The criminal and civil violations are woven together. They
    are part of one complete Act and some violations are civil and
    some constitute criminal penalties, or trigger criminal
    penalties. But there is not a separate kind of regulatory
    structure that would lead to such a split preemption
    conclusion, if that makes sense.
        I want to summarize by talking about a few situations in
    which it is critical that State and local police exercise this
    authority. One is observation of suspicious activity that is
    potentially connected to terrorism. I can't give the details of
    actual cases in this testimony, but suffice it to say that I
    can say that I have personally seen in my capacity when working
    in the Justice Department cases where State and local police
    observed suspicious activity and used their inherent arrest
    authority to go ahead and make an arrest on immigration
    grounds. My written testimony gives some examples of how that
    might be constructed.
        The second area where it is critical is in NCIC listings.
    As has already been mentioned, there are several types of
    aliens being listed in NCIC right now. The current number as of
    March 1 is up to 28,000 absconders. The results are pretty
    impressive. When you cast that wide a net, and you basically
    are looking at everyone who gets a speeding ticket, you can
    achieve real results. Of those 28,000 listed, 8,500 have been
    arrested at this point. So it is an effective way of looking
    for people who have made a mockery of our rule of law. People
    have already had their day in court and lost. We have got to
    rely on the NCIC system.
        In addition, NCIC is critical for terrorist-related alien
    violators of our immigration law. The NSEERS system, the
    special registration system, has targeted people who are of
    particularly high risk and their activity leads to believe that
    they may be involved in terrorism. There are over 50, now,
    NSEERS violators who are of such high risk that they have been
    placed in NCIC. That is a critical subset of aliens, as well as
    the deported felons file, which has been in NCIC since the
    Clinton administration. So it is critical to make sure that
    that way of getting information to State and local police
    continues to be effective.
        I want to also note that the interception of alien
    smuggling is another case where this inherent authority, to the
    extent that it can be maximized and can be encouraged by
    Congressional action, should be undertaken. There are many
    documented cases where State and local police intercept a
    truckload of aliens being smuggled across the border, and for
    one reason or another, they do not feel that they have the
    authority to make the arrest. Not only is that, of course, a
    threat to the lives of the aliens being smuggled, but it is a
    huge gap in our law enforcement when there are the eyes and
    ears of law enforcement on the front line and yet in some cases
    they do not feel that they have the authority or the resources
    to back them up in assisting the Federal Government.
        That said, let me just conclude by saying that it is clear
    that there is massive untapped potential to make real headway
    in the war against terrorism and in the enforcement of our
    immigration laws and I think this bill would be a great step in
    tapping that potential and moving forward on this question.
        Chairman Chambliss. Thank you, sir.
        [The prepared statement of Mr. Kobach appears as a
    submission for the record.]
        Chairman Chambliss. Mr. Picolo, we are certainly glad to
    have you here and look forward to your testimony.

    STATEMENT OF E.J. PICOLO, REGIONAL DIRECTOR, FLORIDA DEPARTMENT
                OF LAW ENFORCEMENT, FORT MYERS, FLORIDA

        Mr. Picolo. Thank you very much, Mr. Chairman. As you are
    aware, Florida in July of 2003 entered into the first of its
    kind delegated authority MOU with the then-Department of INS
    for 287(g). That was predicated on our efforts in Florida with
    our Regional Domestic Security Task Forces to work domestic
    security and terrorist-related investigations in our own State.
    The task forces were established by statute just after the 9/11
    atrocities.
        As a result of our frustrations with the Federal system as
    it exists currently, we approached the INS about the
    possibility of the 287(g) authority being delegated to certain
    law enforcement officers in our State and successfully
    negotiated with them an MOU, which was signed in July of 2002
    by then-INS Under Secretary as well as our Commissioner, or
    Governor Jeb Bush.
        Since that time, we have had an active--we trained our 35
    local law enforcement officers. They attended a five-week
    comprehensive training program put on by the INS. They have
    subsequently been retrained, another week-long training program
    to provide some additional refresher training. We have worked
    hundreds of cases throughout our State, made a couple of
    hundred arrests as a result of this MOU with absolutely no
    complaints from any community groups, no complaints from any
    individual that has been arrested regarding any violation of
    rights or anything of that nature. So we are very proud of our
    efforts.
        We have had some problems as a result of the formation of
    Homeland Security with the continuing efforts related to our
    MOU. Quite frankly, when that legislation was passed and that
    new Federal agency was established, it created a situation
    where I think it takes a while for them to organize and
    understand their own mission.
        As a result of that, we lost our supervisory special agents
    at each of our task forces. One of the primary focuses of our
    MOU is every task that we complete under our Federal authority
    is done under the supervisory authority of an ICE special agent
    supervisor. Those individuals have subsequently been pulled
    from our task forces, which essentially means that our MOU is
    not effective. We can't enforce the MOU by policy without the
    INS individual, or the ICE supervisors there.
        We strongly support the continuation of 287(g) and similar
    authority in our counterterrorism efforts.
        Three weeks ago, we met with representatives from ICE in
    our Commissioner's office, along with Collier County Sheriff
    Don Hunter and representatives from ICE in Washington and Tampa
    Bay to work out our differences. These outcomes are still under
    review. The ICE has renewed its commitment to continue our
    project and provide the proactive effort to prevent it from
    becoming simply a stand-by program. Additionally, FDLE and ICE
    have agreed to support another cross-designation class which
    will provide an additional 35 cross-designated officers in the
    State of Florida.
        In closing, Florida strongly supports the continuation of
    our 287(g) cross-designation program. We believe this authority
    provides a strong force multiplier for our Federal partners and
    our collective efforts to limit the possibility of another
    terrorist attack. We remain willing and able to assist our
    Federal partners in these efforts. By remaining committed to
    our use of trained personnel and domestic security-related
    investigative efforts, we are assuring that these highly-
    trained officers will be put to the best use, thereby
    protecting Florida and the nation.
        I look forward to your questions.
        Chairman Chambliss. Thank you, sir.
        [The prepared statement of Mr. Picolo appears as a
    submission for the record.]
        Chairman Chambliss. Ms. Malkin?

      STATEMENT OF MICHELLE MALKIN, INVESTIGATIVE JOURNALIST AND
                       AUTHOR, BETHESDA, MARYLAND

        Ms. Malkin. Mr. Chairman and members of the Subcommittee,
    thank you for the privilege of testifying before you today. I
    approach today's topic from two levels, as a second-generation
    American whose immigrant parents arrived here legally in this
    great country three decades ago and also as an investigative
    journalist who has reported extensively on the consequences of
    lax immigration enforcement. My interest is in seeing the
    failures of immigration enforcement remedied effectively so
    that the American dream remains accessible to those who embrace
    freedom and respect the rule of law.
        There has been much public debate here in Washington over
    the past few weeks about the wall of separation between the CIA
    and FBI because the bureaucratic barricade between agencies
    prevented crucial information sharing about potential terrorist
    threats. But there is another dangerous barricade that impedes
    communications between investigators and undermines our safety
    and security. It is the wall between Federal immigration
    authorities and State and local law enforcement officials.
    Terrorists and criminal aliens alike have benefitted directly
    and indirectly from this barrier.
        When 9/11 hijackers Hani Hanjour and Khalid Almidhar needed
    help getting fraudulent government-issued photo I.D.s, they
    simply hopped into a van and headed to the parking lot of a 7-
    Eleven store in Falls Church, Virginia, and that is where
    scores of migrant day laborers supplied bogus identity papers
    to other illegal aliens from around the world. During my
    research, I visited the 7-Eleven. It is just a stone's throw
    from the Pentagon, where Hanjour and Almidhar deliberately
    crash-landed American Airlines Flight 77.
        Well, the parking lot was, as usual, filled with so-called
    undocumented day laborers and the local cops that I interviewed
    suspect that most of these men are here illegally and that they
    continue to facilitate trade in fake I.D. documents, but nobody
    arrests them, and this is an all too familiar scene. Public
    officials talk tough about the need for improved cooperation
    among local, State, and Federal authorities to secure the
    homeland, and yet several areas of the country remain safe
    havens for criminal aliens and as magnets for immigration
    outlaws with far more nefarious aspirations.
        The overwhelming majority of illegal aliens, of course,
    have no connection to terrorism, but they are breaking the law,
    and one of the key lessons of 9/11 was that our continued high
    tolerance for massive illegal immigration gives terrorists and
    criminal aliens deadly cover. Remember, more than half of the
    48 Islamic radicals convicted or tied to recent terrorist plots
    in the U.S. over the past decade either were themselves illegal
    aliens or relied on illegal aliens to get fake I.D.s.
        The dangerous public safety impact of this other wall
    reaches beyond terrorism. Last spring, I reported on the case
    of David Montiel Cruz, also known as Enrique Sosa Alvarez. He
    was an illegal alien from Mexico who dragged a 9-year-old girl
    from her San Jose, California, home in broad daylight and he
    faces trial later this summer for kidnapping and raping her
    over 3 days. This case stands out as a textbook example of the
    continued failures of interior immigration enforcement.
        According to the San Jose P.D.'s official policy manual,
    officers may not, quote, ``initiate police action when the
    primary objective is directed towards discovering the alien
    status of a person,'' unquote. Translation: San Jose cops are
    prevented from proactively contacting the Feds if they suspect
    violations of immigration law in the course of their duties.
    Quote, ``Our department is very lenient,'' unquote, when it
    comes to illegal aliens, San Jose P.D. Spokeswoman Katherine
    Unger told me. ``We don't do anything on immigration,'' she
    lamented. It is not, you know, politically correct. It is
    frustrating.
        It is important to note that this other wall is not just a
    one-way obstruction. In untold instances, cops have reached out
    to the Feds only to be ignored or rebuffed. A couple examples.
        On Memorial Day weekend, 2002, with the nation on high
    alert, NYPD officers contacted the then-INS and attempted to
    turn in seven illegal aliens from the Middle East who had been
    arrested with false I.D.s near a major tunnel. The agency
    ordered the furious cops to release the men, who were all
    admitted illegal aliens.
        And just this week, four illegal aliens suspected of felony
    crimes walked free--walked free--in White County, Arkansas,
    after the Feds explained to local law enforcement that they
    cannot automatically expel the men just because they are here
    illegally. Quote, ``I had to hand this guy his car keys and
    allow him to walk out the door,'' Detective Randy Rudisill
    said. ``He is not even supposed to be in this country and he
    admitted he was here illegally, but we can't do a thing about
    it. Our hands are tied.''
        Even if every State were to enter into cooperative
    agreements with the Feds to train the nation's 600,000-plus
    State and local law enforcement officers to enforce immigration
    law, little would change without an effective system of
    detention and deportation that puts an end to the standard
    procedure of catch and release. This policy undermines homeland
    security and has cost lives, and in my written testimony, I
    cite a number of examples of that. The bottom line is that
    increased enforcement and collaboration cannot succeed without
    greatly expanding the Federal Government's 20,000-bed detention
    capacity.
        What happens when the wall between Federal immigration
    authorities and local law enforcement officers is surmounted?
    In at least one case, the decision likely saved untold lives. A
    year and a half ago, I reported on the extraordinary
    circumstances surrounding convicted D.C.-area snipers Lee Malvo
    and John Mohammed.
        On December 19, 2001, Bellingham, Washington, Police
    Detective Al Jensen called the Border Patrol for assistance
    during a domestic dispute involving Malvo, his mother, and John
    Mohammed. The detective suspected that Malvo and his mother
    were illegal aliens and the Border Patrol confirmed their
    unlawful status and processed them as deportable aliens. Malvo
    and his mother were fingerprinted and photographed and later
    released pending deportation proceedings, against the
    recommendation of the Border Patrol.
        As we all now know, Malvo and Mohammed went on to carry a
    bloody rampage that terrorized the greater Washington, D.C.
    area and took the lives of ten innocent people. The toll
    probably would have been higher if not for Police Detective
    Jensen's decision to call the Border Patrol and have Malvo
    processed as an illegal alien. His prints were taken by the
    Border Patrol and formed in the former INS, now ICE database
    called IDENT and they were found at an Alabama liquor store
    crime scene. Those prints were critical in unraveling the
    sniper case.
        Now, neither Detective Jensen nor the Border Patrol agents
    could have foreseen the havoc that Malvo helped create, but in
    the course of just doing their jobs together, one local cop and
    two Federal immigration officers may have averted an even
    greater public disaster.
        I think this case underscores the importance of basic
    routine cooperation between local and State police and Federal
    immigration authorities. Police officers are sworn to uphold
    the law and to enforce it when they have reason to believe that
    the law is being broken. Local cops don't sit back and watch
    bank robbers escape because they lack jurisdiction over a
    Federal crime. A State trooper wouldn't look the other way, one
    hopes, if he spotted someone breaking into a U.S. Postal
    Service mailbox or committing arson in a national forest. Just
    because immigration law enforcement is not a local cop's
    primary responsibility doesn't mean that he must or should
    ignore indications that these Federal laws are being broken.
        S. 1906 would help break down this other wall by affirming
    the inherent authority of States and their political
    subdivisions to apprehend, arrest, detain, or transfer illegal
    aliens to Federal custody. It would increase criminal penalties
    for illegal entry into the U.S., improve information sharing,
    and it would address the Federal detention space crunch.
        I think that these steps all reflect a fundamental
    principle that must be adopted to make homeland security
    meaningful, namely that immigration law breaking must carry
    real consequences in a post-September 11 world. Thank you.
        Chairman Chambliss. Thank you, Ms. Malkin.
        [The prepared statement of Ms. Malkin appears as a
    submission for the record.]
        Chairman Chambliss. Professor Harris?

    STATEMENT OF DAVID A. HARRIS, BALK PROFESSOR OF LAW AND VALUES,
     AND SOROS SENIOR JUSTICE FELLOW, UNIVERSITY OF TOLEDO COLLEGE
                          OF LAW, TOLEDO, OHIO

        Mr. Harris. Thank you very much, Mr. Chairman and members
    of the Committee. I appreciate very much the opportunity to
    speak to you today about this important legislation.
        Over the past year, I have had the opportunity to travel
    the country interviewing police officers for a new book I am
    doing. I have interviewed police chiefs, captains, lieutenants,
    many, many patrol officers, and I have been really surprised at
    the one theme that has jumped out at me time after time after
    time, and that is this. Please do not get us saddled with the
    job of doing enforcement of immigration law. This is a
    constant, recurring theme for local and State police, and I am
    privileged to be here today to see if I can try to give voice
    to why local and State police do not want this responsibility
    and why they feel it is more properly a Federal responsibility.
        Point number one, and it goes directly to what Senator
    Cornyn was raising in his statement. I want to come right to
    that, and that is this. There is probably no single innovation
    or program in policing that has been more successful or more
    widely adopted than community policing. Even police departments
    that do not have a community policing program have adopted
    wholeheartedly its core concept, and that is the police cannot
    do the job of making the streets safe alone.
        They need the community with them. They need a relationship
    with the community. They need a partnership with the community.
    Why? Because even the dumbest criminals don't usually do their
    business in front of the police, so the police need
    information. They need intelligence. They need people to tell
    them where the criminals' business is going on and who is doing
    it. It is that simple.
        If they want that information, they have to have
    relationships of trust with every community that they protect
    and serve. Now, forging those kinds of relationships is very
    difficult under the best of circumstances. It is doubly
    difficult for immigrant communities to forge such relationships
    with police departments. You have barriers of language. You
    have differences in culture. Police have been diligent, have
    done a great job building those bridges under some very
    difficult circumstances.
        In those immigrant communities, and when I say immigrant
    communities, I am not just talking about the big cities. I am
    talking about cities of all sizes, towns all over the country.
    The fastest-growing immigrant communities in this country are
    no longer in the Southwest, in Texas and in Florida and
    California. They are in places like Georgia. They are in places
    like Arkansas. They are all over this country.
        So police departments everywhere face these issues, and
    when they go into immigrant communities, some of the people in
    those communities are illegal. That is a fact and it is a fact
    we cannot get around, and police know that their success in
    working with these communities and getting information and
    making the streets safe depends on working with all members of
    those communities.
        If the people in those communities don't trust the police,
    if they fear them because they think that the police are
    working with immigration and have an interest in deporting
    them, those people will not report crimes. They will not offer
    assistance. They will simply act out of the basic human emotion
    of fear, and that will cut off the flow of information to the
    police.
        I agree very strongly that we should look at local and
    State police as our eyes and ears in the community. If we want
    those eyes to see things and ears to hear things, they must be
    in touch with the people they serve, whether those people are
    legal or illegal.
        That is why local and State police officers, to a person
    that I spoke to, said over and over, please, don't put us down
    this path. They say, I want to serve everybody in my community.
    I want to protect everybody. I don't care what the status of a
    person is, if a woman is, if she has been raped. I don't care
    what the status is of a victim of domestic violence. I want
    those people made safe. That is my job and I am going to do it.
        Two things happen when the police officer doesn't get
    information and doesn't get contacted out of fear of
    deportation. Two things happen. Number one, the victim is not
    served. Number two, and this is very important, the predator
    remains on the streets to strike somebody else, and that is not
    a cost that anybody wants to pay.
        Two other points kept coming up in my conversations with
    police officers. One was resources. They are simply stretched
    to the limit. They have all kinds of new responsibilities with
    homeland security. They have many things on their plates. To
    give them a new job now with no new resources to do it under
    the threat of losing Federal funds if they don't decide to
    voluntarily cooperate in a time of the tightest State and local
    budgets in a generation, there is no choice involved here,
    really. They are going to have to go along with this and they
    don't want to be forced to do that. It will take resources away
    from their other priorities, the priority, the bread-and-butter
    priority of making the streets safe.
        Last but not least, they had another concern. That concern
    is training. Training is important here because immigration law
    is incredibly complex, incredibly complex. I was very
    interested to hear what Mr. Picolo said about the training that
    his men got under the MOU, five weeks plus another week of in-
    service. That is the way we have to go if we want this done
    right. Without the training, we are sending our officers out
    there into a potential disaster, and the losers will be the
    police because it is their relationship with the public that
    will be undermined.
        Thank you very much for the opportunity to speak to you and
    I look forward to your questions.
        Chairman Chambliss. Thank you very much, Professor.
        [The prepared statement of Mr. Harris appears as a
    submission for the record.]
        Chairman Chambliss. Mr. Picolo, let me start with you. Your
    287(g) was entered into, your MOU was entered into in July of
    2002, correct?
        Mr. Picolo. Yes, sir.
        Chairman Chambliss. If you had had--
        Senator Sessions. Mr. Chairman, you might note that MOU is
    a memorandum of understanding.
        Chairman Chambliss. I am sorry.
        Senator Sessions. I didn't define that, either, when I was
    talking.
        Chairman Chambliss. This is a town of acronyms and we tend
    to get wrapped up in that sometimes, so thank you, Senator
    Sessions.
        The memorandum of understanding that you entered into was
    in July of 2002. If you had had that exact MOU in place in July
    of 2001 when Mohammed Atta was stopped that second time for a
    traffic violation and when a bench warrant was issued, what
    likely would have happened as a result of that MOU being in
    place?
        Mr. Picolo. I think we would have had much better
    communication between our local law enforcement agencies and
    the Regional Domestic Security Task Force. That is the
    mechanism that we use to investigate domestic security and
    terrorist events in Florida. Virtually all of our local law
    enforcement agencies in Florida now have at least a liaison, if
    not a member actively assigned, to one of these task forces. So
    we communicate regularly with them and whenever there is
    someone identified that is of interest to a local law
    enforcement officer, that is one of our primary
    responsibilities as we go out and investigate that issue and
    determine if that is someone we need to be more interested in
    and need to pay more attention to.
        Chairman Chambliss. Ms. Malkin, I agree with you that
    information sharing is a critical aspect of not just
    immigration law, but particularly the war on terrorism, and I
    have been a strong advocate since my House days of trying to
    improve information sharing both vertically and horizontally
    with our law enforcement as well as other related entities.
        I am sure you are probably familiar with the Heritage
    report that has come out recently and has been critical of the
    legislation that is proposed and the utilization of the NCIC,
    saying it would be an overload on the NCIC if we put all of
    these names into there. Give me your reaction to that. You have
    had some experience with NCIC. What do you think about that?
        Ms. Malkin. I don't think it would be an overload. I mean,
    we live in the most technologically advanced, technologically
    sophisticated society in the world. I think putting the
    brightest minds to that task is not out of the realm of the
    impossible.
        I also think that the human toll with regard to failures to
    do this kind of information sharing has to be exposed. Here in
    Washington, we have been aware of these kind of failures ever
    since the days of the railway killer, Angel Resendez. Again,
    the IDENT database played a big part here because, I mean, if
    you are going to appropriate money to these sophisticated
    databases, there ought to be good information in them. From my
    interviews with local cops, and I have done a lot of interviews
    myself across the country, they have been clamoring for useful
    information in these databases.
        In the Malvo case, which I mentioned, I think is very
    relevant and germane because those fingerprints of Lee Malvo
    were in IDENT but they were not in the NCIC. Had they been in
    the NCIC, the delay that it took before Malvo's prints were
    identified led to a couple of other people being slain who
    might otherwise be alive today because of that.
        There is so much information that still needs to be put in
    the databases, as well, including visa overstayers and the
    absconders, and it is going slowly, but it is going. Again, I
    don't think it is an impossible task.
        Mr. Kobach. Mr. Chairman, may I comment on that question,
    too?
        Chairman Chambliss. Certainly.
        Mr. Kobach. When I was at the Justice Department, I worked
    extensively with CJIS, which oversees the NCIC system. There
    are millions and millions of records in NCIC. Every single want
    and warrant that any State or local jurisdiction has and wants
    other jurisdictions to know about is tappable through NCIC, and
    it is not like our home PC where we are running out of RAM
    space. There is plenty of space there. We have already got
    111,000 deported felon files in the NCIC and now we have got
    these 28,000 absconders and less than 100 NSEERS violators. The
    immigration portion is a drop in the bucket and we could make
    that drop ten times larger and there would be no problem of
    overloading the system.
        Ms. Malkin. And if I just may make one final comment on
    that, of course, nobody ever talks about the problems with
    overload when it comes to registering, for example, law-abiding
    gun owners. If we can do that, if we have the capacity to do
    that, certainly we should have the capability of registering
    people who are breaking the law.
        Chairman Chambliss. Professor Kobach, the Heritage report
    also criticized the proposed legislation on the basis that it
    would tend to put more of a burden upon local law enforcement
    officers and take away, as Professor Harris said, their ability
    to do their bread-and-butter, day-to-day issues. I share that
    concern and I want to make sure that if we move forward with
    this, that we don't take away from our local law enforcement
    officials their primary obligation of enforcing criminal laws
    within their local communities. What is your reaction to that
    report and this criticism?
        Mr. Kobach. My reaction is that if we were trying to
    displace their primary mission of enforcing garden-variety
    criminal laws in their communities, that would be a problem.
    But that is not what the objective of this bill or similar
    bills are. The objective is to make it a secondary mission and
    an entirely voluntary mission. If they don't want to do it,
    they still don't have to. But there are a lot of police who are
    extremely frustrated that they can't get more involved, and I
    have to disagree strongly with Professor Harris.
        As counsel to the Attorney General, I spoke on many, many
    occasions to police organizations around this country and I
    have continued my interviews since I have left the Justice
    Department because I am really frustrated by this. I think this
    is one of the biggest myths that has arisen on this issue.
    There is not one bit of statistical evidence out there that
    anyone has presented that I have ever heard of what percentage
    or what number of crimes are being reported by illegal aliens.
    I am glad Professor Harris is writing a book on this and I hope
    he is able to find that statistic because his book will be much
    stronger if he can give us some numbers.
        I think this is a myth. When I talk to police officers, and
    I try to say, do you have any reports, can you give me any
    numbers, how many criminal cases have been based upon reports
    from aliens, legal or illegal, in your communities, they laugh
    at me, especially with the illegal part. The point is, if you
    are an illegal alien in the United States, you avoid all
    contact with law enforcement, period. They don't know the
    niceties of whether it is a State authority or a local
    authority or a Federal authority. The smart thing for you to do
    is to avoid all contact with law enforcement.
        So it is another myth that we are getting some massive
    community assistance in policing from the illegal aliens that
    have anything to fear. Now, the legal aliens, those alien
    communities, absolutely. They can come forward and they have
    nothing to fear. But I just think that there is not a lot of
    evidence here.
        I would also point out that the Major County Sheriffs
    Association, which is the organization of the sheriffs of the
    100 largest counties in America, has gone on record saying they
    want greater cooperation and they are frustrated by those
    instances in which there isn't adequate communication and
    cooperation, especially those instances where they have someone
    they would like to turn over to the INS and the INS says, let
    them go.
        And in my conversations with several police officers, this
    is one theme that came out quite often, too. The officer
    doesn't want to be the guy that let the obviously illegal alien
    go who went on to rape someone or commit a murder or commit a
    robbery. He doesn't want to be the guy who let him go. The
    police officers, they have a strong instinct of where there are
    certain apparent violations of the law, an individual may be
    involved in other more serious violations of the law. And when
    they cannot act upon, when they don't have the tool in their
    pocket to enforce and make an arrest on immigration law, many
    of them have this fear that they are going to be the police
    officer that made the mistake and let someone go who goes on to
    do a much more serious crime.
        So I have a very different perspective on what police
    officers are saying and I guess I would just like to see the
    numbers, if there really is this massive amount of reporting by
    illegal aliens, because I don't see it.
        Senator Sessions. Mr. Chairman, just for the record, the
    legislation I offered, the Homeland Security Act, does not
    require police to do anything. The CLEAR Act, which the
    Heritage Foundation evaluated as originally proposed in the
    House, did have mandates on local police. So I think I just
    want to suggest that the Heritage report was not focused on the
    voluntary proposal I have offered.
        Chairman Chambliss. Good point.
        Professor Harris, I want to give you equal time. Do you
    have anything to add to your initial statement on that,
    relative to that?
        Mr. Harris. Yes, sir. Thank you, Mr. Chairman. Well, Mr.
    Kobach and I do have very different perspectives on this. I
    have seen active programs in place in cities such as Chicago,
    cities such as--you know, just all over the country, the
    objectives of which are to let the community as a whole, not
    just the legal residents but everybody, know that the police
    are there for them. This sometimes goes on quietly. This
    sometimes goes on with public relations campaigns. And it has
    been very successful in a number of places around the country.
        What police officers, from chiefs down to patrol officers,
    said to me unprompted many, many times is you never know where
    information is going to come from. There is no way to predict
    who will be the witnesses to a crime, whether that person will
    be legal or illegal. There is no way to predict who the victims
    will be of crime except that if you push people out of the
    circle of protection, if people feel that they cannot access
    the police, they can't get to them, that they have something to
    fear from the police, they are actually more likely to become
    victims. That is a common occurrence.
        Unless we are very, very conscious of what we are doing
    here, we are going to send people farther away from the
    authorities. We are going to send them--make them more hesitant
    to come to the police. We are going to make them more fearful
    when they come to the police and that just isn't in anybody's
    interest, because like I said, they will stop communicating.
        I don't think it is true at all that no illegal aliens are
    communicating with police. That is simply not true. Talk to
    police officers. You will see. And what they have to say is
    valuable. If you want those eyes and ears in the community, we
    have to open them to everybody. That is the long and short of
    it.
        Chairman Chambliss. Thank you. Senator Kennedy?
        Senator Kennedy. Thank you very much, Mr. Chairman.
        The provision which is included in S. 1906, to which
    Senator Sessions refers, says that after 2 years from
    enactment, any State or local that has a statute, policy, or
    practice that prohibits local officers from enforcing
    immigration laws or cooperating with the Federal immigration
    law shall not be federally reimbursed for incarceration of non-
    citizens and the State and local municipal reimbursements funds
    that would have gone to these will be reallocated to
    jurisdictions that are in compliance with the Act.
        So it would suggest--I don't know whether, and I don't want
    to spend a lot of time with this, that this is a little bit
    different than just being voluntary. If they are not going to
    have a problem, there is going to be a risk or it is going to
    raise serious doubts in the minds of the police chiefs in those
    areas, and I think that is the matter of concern. Maybe I don't
    understand it correctly or I read it wrongly, but that is the
    basic kind of concern, whether there is going to be a
    requirement or something else.
        I think we have heard about interesting programs,
    particularly in Florida, on how this function can be done and
    be done correctly, and I think it is a rather compelling story
    that has been outlined for the Committee.
        Mr. Kobach, I was interested in your comments about the
    roles of police departments and the attitude of policemen. I
    have the letters from three departments in Kansas that oppose
    the legislation, Kansas City, Lenexa, and Overland Park. I
    understand these are cities that are in the district you hope
    to represent in the Congress.
        The Chief of Police in Kansas City writes that they have
    established good relationships with their minority communities,
    but if this bill becomes law, they say it will have a
    devastating effect on how we provide law enforcement. The Chief
    of Police in Lenexa writes that his city, like many other
    jurisdictions, is short on resources and manpower. This bill
    would magnify the problem, force them to make cuts in other
    areas. Oakland Park's Chief of Police has a similar concern,
    writing that ``this bill would be detrimental to all who live,
    work, and visit here,'' and he says he wants all to know that
    the police are available to protect them, no matter who they
    are and where they come from.
        Why do the police departments in your own back yard believe
    the policy that you support will jeopardize their ability to
    keep your own community safe?
        Mr. Kobach. I thank the Senator for providing that
    communication. The Police Chief from Overland Park, I used to
    work very closely with because I was a City Councilman at one
    time in that jurisdiction.
        I think it depends on how the question is asked. If you
    frame the question, we want you to take a part of your mission
    and devote to enforcing immigration law, you will always get
    the same answer from resource-conscious police chiefs. No. We
    don't want an additional mission foist upon us.
        But what we are talking about here is a situation where the
    arrest has already been made. The traffic stop has been made.
    The police officer is now deciding what to do. The resources
    have been expended. The only additional resource is the cost of
    the phone call to the INS LESC, the Law Enforcement Support
    Center.
        So it is not as if we are asking them to go out on a new
    mission and devote more investigatory resources. So I think,
    like a lot of polling, it depends on how you ask the question
    and I think you get very different answers.
        The other point I would mention is to your point about how,
    well, it is not voluntary in this current bill. I am not sure
    if the Committee is aware, but actually under U.S. law already,
    it is impermissible for a city to have in place a policy that
    prevents sharing information with the Federal Government. This
    is 8 U.S.C. 1644. Notwithstanding any other provision of
    Federal, State, or local law, no State or local government
    entity may prohibit or in any way restrict from sending or
    receiving to the Immigration and Naturalization Service
    information regarding the immigration status, lawful or
    unlawful, of an alien in the United States.
        As you know, many municipalities are simply violating
    Federal law flagrantly by creating so-called sanctuary
    policies, and as I understand it, the provision in this bill,
    in S. 1906, would simply add some teeth to a Federal law that
    has been utterly ignored by some municipalities and say, look,
    if you are going to keep ignoring Federal law and put policies
    in place to block your police officers from voluntarily calling
    the feds, then look, you are going to lose some SCAAP funds,
    and I think that is a completely reasonable--
        Senator Kennedy. You are not here just to advocate the
    repeal of the law. As I understand your statement, you are
    saying that if you are not going to do it and to move ahead in
    enforcement, they are going to lose local funds.
        Mr. Kobach. As I understand it, the provision in S. 1906
    will say if you have something on your books in your city
    ordinances that says you are not going to comply with this
    Federal requirement, then you are going to lose SCAAP funds,
    and I don't think that is forcing them to undertake a mission
    and expend resources.
        Senator Kennedy. It says that it prohibits local enforcers
    from enforcing immigration laws or cooperating with Federal
    immigration law. There is something on that. It shall not be
    federally reimbursed.
        Let me ask, we had these three prominent conservatives,
    Grover Norquist, David Keane, Bob Barr, who also wrote these.
    It is amazing the company I am keeping these days.
        [Laughter.]
        Senator Kennedy. They wrote--
        Chairman Chambliss. And that is in the record, too,
    Senator.
        Senator Kennedy. That is in the record. They wrote that the
    bill will set a dangerous precedent. They talk about an
    unmanageable burden on local law enforcement, and the critics
    say the mechanism already exists to foster Federal law
    enforcement cooperation when appropriate.
        What is your own background in law enforcement?
        Mr. Kobach. Serving as counsel to the Attorney General of
    the United States.
        Senator Kennedy. But you haven't--served as a law
    enforcement officer or police.
        Mr. Kobach. Also as a member of the Public Safety Committee
    of a large municipality which oversees--
        Senator Kennedy. Your total law enforcement is as a
    counsel, is that correct?
        Mr. Kobach. Yes. I haven't carried a gun in law enforcement
    duty, if that is what you are asking.
        Senator Kennedy. Well, no. You don't have to necessarily to
    be involved in other forms of law enforcement. I am just trying
    to get some sense of your own background in law enforcement.
        Mr. Kobach. Sure. Lots of contact, oversight, not walking
    the street as you might be implying.
        But on the unmanageable burden point, if I might jump in
    there, again, I think the--in many ways, the burden occurs
    right now without this bill because some municipalities, some
    local police will go ahead and try to enforce right now and
    they will go ahead and make a detention in the hopes that the
    Federal Government will act. And what is happening now in some
    cases is that the Federal Government either says, well, let
    them go and doesn't reimburse them for that detention expense,
    or does ultimately take them but doesn't reimburse adequately
    with adequate SCAAP funds. So I think the burden occurs now
    when you have local law enforcement in good faith trying to
    enforce Federal law and not getting adequate assistance.
        Senator Kennedy. I am impressed by the Florida and Alabama
    programs. I don't want to take a lot of time of the Committee
    on this, because I have just one final question. It seems that
    the police and law enforcement officers have a different
    opinion from Mr. Harris.
        I have the statements from Paul Evans, who is from my own
    State of Massachusetts--I will include these--from the
    California Police Chiefs, from President Rick Terbach. It is
    the strong opinion that California police, in order for local
    and State law enforcement to be effective partners, not be
    placed in the role of detaining or arresting individuals solely
    on the charge of immigration.
        From Chicago, Police Department Tom Needham, former General
    Counsel and Chief of Staff. ``It would be virtually impossible
    to do it effectively if witnesses and victims, no matter what
    their residency status, had some reluctance to come forward for
    fear of being deported.''
        Los Angeles County Sheriff's Department, Sheriff Leroy
    Baca, ``I am responsible for the safety of the largest
    immigrant community. My department prides itself in having a
    cooperative, open relationship. This bill would undermine that
    relationship--talking about the CLEAR Act, in fairness.''
        Miami Police Department, New York Police Department, Chief
    Michael Collins, Philadelphia Police Department, Andy Graber.
    ``If they are otherwise law abiding, we will not tell the
    Federal Government of their status. We are afraid immigrants
    would not report crimes.'' Seattle Police Chief, and the list
    goes on.
        It may be that they just don't want it, but we have seen
    the examples both in Florida and Alabama, evidently, where they
    are getting the training, they are getting the support, they
    are getting the information where they are willing to take this
    on and there has been a positive response to it. Again, I think
    it underlines it.
        Let me just wind up here, because the hour is going on. Mr.
    Picolo, I understand the issue here is whether the State and
    local police are equipped to take on the larger new burden of
    immigration enforcement without the training, supervision, and
    support you receive from the Federal Government under the MOU.
    In talking about the MOU, Governor Jeb Bush said, ``I would
    have a lot of trepidation if every police officer was going to
    be a sworn INS officer and our duties end up with local law
    enforcement becoming the immigration cops of the country.''
    This is the Governor of Florida that is saying that.
        The statement clearly argues against broad legislation to
    expand the authority, certainly without the kind of careful
    attention that they have given in the State of Florida in the
    development of the training and the programs which developed, I
    guess, under the State. Your comment just finally?
        Mr. Picolo. That is the official position of the State. The
    Governor does support the limited INS authority, at least at
    this point with the legislation that exists. He does not
    support the broader authority.
        Mr. Harris. Senator, may I?
        Senator Kennedy. Yes, just briefly and then my time--I
    guess I do have another minute. Go ahead.
        Mr. Harris. I just wanted to say that your comments are
    very important. You know, the idea that the policy comes out of
    some kind of misguided political correctness, I think, is
    really insulting to police officers.
        What this is, police officers are practical people. They
    are pragmatic. They want to know what works and they know what
    works. They have been on those streets. They have been in those
    communities. They know that they have to work with the people
    there no matter who they are. That is why they don't want to be
    involved in this. That is why they want it done, if at all,
    with the Florida model.
        Senator Kennedy. Thank you very much, Mr. Chairman. My time
    is up.
        Chairman Chambliss. Senator Sessions?
        Senator Sessions. Thank you, Mr. Chairman. I will just
    offer for the record a list here of about 50 law enforcement
    groups that support the CLEAR Act. This is the one that has the
    mandates in it. The National Sheriffs Association, Law
    Enforcement Alliance of America, the Illinois Association of
    Chiefs of Police, the Iowa Association of Chiefs of Police
    Officers, Connecticut Association of Women Police, the Southern
    States Benevolent Police Association, and it goes on and on,
    agency after agency, that support the CLEAR Act, the one that
    had the mandate in it.
        I would also offer a letter from 16 experienced immigration
    law officers, a very thoughtful letter. I think it is important
    to make it a part of the record. They say, ``We strongly
    support S. 1906. We urge the Senators to cosponsor the bill.
    Failure to act on S. 1906 only helps law breakers, forces both
    Federal and all State and local law enforcement officers to
    fight with one arm behind our backs and leaves a gaping hole in
    the defense of this Nation and the enforcement of our laws.''
        The National Sheriff's Association said, quote, ``Passage
    of this legislation will settle the question of jurisdiction by
    codifying and affirming local law enforcement's ability, when
    properly trained, to enforce immigration law.''
        The National Fraternal Order of Police says the FOP
    strongly supports the efforts of Senator Sessions to enhance
    the security of our Nation and will work closely with him to
    craft legislation to that end.
        And there are a lot more. The police officers I know, and I
    know a lot of them personally. They are friends of mine. I was
    Attorney General and United States Attorney for nearly 17
    years. Those are my best friends, and they are not telling me--
    I will tell you, I think Mr. Kobach is correct. If you say, we
    are going to mandate you to do something, they are going to say
    no, and they should. You mandate me to do something, I want to
    be paid for every bit of it and I am still not sure I want to
    do it, and I don't blame them.
        But to tell them that we are going to allow them the
    option, when they are out and made an arrest on the highway or
    somebody is wrecked or been DUI that they can't even have a way
    to participate, I think is quite different, and that is why you
    have the support there.
        I think that the concern has floated with the CLEAR Act
    that had a mandate in it, as originally proposed, that did do
    some of that. It probably would not be successful.
        Let me ask you, Mr. Picolo, this, and I think it is
    important to get straight. A memorandum of understanding in
    Florida, that was pretty close to a cross-designation, what we
    would call a deputization, was it not?
        Mr. Picolo. Absolutely. That is exactly what it is.
        Senator Sessions. So your law officers that went through
    that training and participated in that MOU had all the powers
    of a Federal INS officer, or at least those that were delegated
    to them?
        Mr. Picolo. Exactly, though it did specifically focus on
    domestic security and counterterrorism investigations solely.
        Senator Sessions. Yours was more narrow than the Alabama
    MOU.
        Mr. Picolo. That is correct.
        Senator Sessions. Ms. Malkin makes the point, I think it is
    of some value, that if a police officer observes a criminal in
    the act of committing a Federal crime, they can act, as Mr.
    Kobach cited the authority, is not that correct as you
    understand it?
        Mr. Picolo. Yes, sir.
        Senator Sessions. So to me, you know more about grassroots,
    I know you know that, it seems to me there are two different
    things. One is you can have a memorandum of understanding and a
    deputization as I have done on drug task forces and you are
    probably familiar with. You designate a local sheriff officer,
    cross-designate them with Federal authority and vice-versa.
    That is a big step. But it is different, is it not, if a police
    officer who has not been deputized is out on the interstate and
    gets a hit on an illegal alien through NCIC or some other
    factor? They don't have to be deputized to make an arrest
    there, do they?
        Mr. Picolo. No, sir, not to my knowledge.
        Senator Sessions. Mr. Kobach, you have researched that. And
    by the way, thank you for your extraordinary testimony and the
    amount of legal research you put into it. I think it was a good
    history and good background for all of us in the fundamentals
    of immigration law. Did I say anything incorrect?
        Mr. Kobach. You stated it correctly. If the alien's name
    and date of birth are on NCIC, then by virtue of that listing,
    there exists probable cause to believe that an immigration
    violation has occurred and so the officer is completely within
    the law in making an arrest.
        Senator Sessions. Since there is no way to prosecute in
    State court a Federal immigration law, the officer has to turn
    him over to somebody who can, is that correct?
        Mr. Kobach. Yes. We don't generally ask State law
    enforcement to play any role in the prosecution of immigration
    violations or in the processing of the administrative
    violations, if we are not actually prosecuting the time.
        Senator Sessions. I think that is the way the system, what
    we are talking about, creating a system in which a local law
    officer who stops a Mohammed Atta is not basically told to let
    them go, don't even bother to check. That is what is happening
    today. Then you have to have a system to get them turned over
    and transmitted to Federal. You have created a group of State
    officers that will help transport them to the Federal
    officials, and Alabama has done that, too, which is helpful.
    But I just don't think a major memorandum of understanding is
    necessary for an average law officer to do his duty out on the
    street.
        Mr. Kobach, you mentioned that we have gotten 28,000 names
    out of the 450,000 absconders put in NCIC. It is breathtaking
    to me it takes this kind of time. It really should not, in my
    view. But of that number, once they have been put in there,
    8,000 have already been picked up.
        Mr. Kobach. Yes.
        Senator Sessions. I think that is a dramatic thing.
        Mr. Picolo, isn't it true that today, if somebody skips
    bail, is not arrestable on an arrest warrant, and they go out,
    the police officer may make a search at their house, but if
    they have moved and absconded from the territory, about all
    they do is put it in the NCIC on the expectation that, sooner
    or later, this guy is going to get picked up again and there
    will be a hit and he can be brought back to that jurisdiction.
        Mr. Picolo. That is exactly what happens, yes, sir.
        Senator Sessions. And NCIC is the most historic change in
    law enforcement, I guess in history almost, would you agree?
        Mr. Picolo. Yes, sir. I have been in the business for 29
    years now and it has existed my entire career. It has always
    been a tool that I have used.
        Senator Sessions. It is almost breathtaking to think that
    we are not using it with regard to non-citizen illegal aliens,
    wouldn't you agree with that?
        Mr. Picolo. Absolutely, and again, that is one of the core
    frustrations that led us to the 287(g) agreement to begin with.
        Senator Sessions. Mr. Harris, do you see anything wrong
    with putting in the NCIC the names and identifications of
    people who have been arrested, ordered deported, who have
    absconded, who have committed crimes and been ordered deported?
    Do you have any objection to that?
        Mr. Harris. Senator, I keep thinking of that incident six
    or so months after the terrible events after 9/11 in which two
    of the hijackers who were dead were contacted by the INS and
    given permission to stay, or something like that.
        The problem is not with using NCIC. It is with the records
    that we want to put in them. If the records themselves are
    inaccurate, incomplete, if they are not kept up to date, and I
    have to say the INS has been absolutely notorious for this,
    everybody agrees, we will have a system full of incomplete, out
    of date stuff that will not actually be useful. We will have to
    comb through the junk to find the gems. And in any system of
    handling information, it is just as important what you don't
    put in as what you do put in. That would be my hesitation. If I
    knew that what the INS had to offer to put in was really up to
    date and fixed, that, I think, would present a whole different
    set of questions.
        Senator Sessions. Well, the National Crime Information
    Center is a confidential system that is available only for law
    enforcement. It is an abuse to access it for any other reason,
    but they do it every day for every kind of crime. You get a DUI
    and you don't show up for court--
        Mr. Harris. Yes, sir.
        Senator Sessions. --your name is in there.
        Mr. Harris. Yes, sir.
        Senator Sessions. Perfection is not guaranteed in this
    life.
        Mr. Harris. No. Nobody looks for perfection.
        Senator Sessions. And I can't imagine why it would be more
    difficult to enter in an absconder from an immigration hearing
    than it would be to enter a person who didn't show up for his
    court date for a DUI. Mr. Kobach?
        Mr. Kobach. Yes, if I can jump in there. Part of the reason
    why the entering of data is going so slowly into NCIC regarding
    absconders is because right now, the ICE is scrubbing the
    records, as they put it, looking to comb everyone very
    carefully to se if the individual has since left the country
    and there is some record of him leaving, or if, in very, very
    few cases--this would be less than one in 100--that the
    individual has gotten a status adjustment and is now here
    legally.
        In the case of someone who has left, there is no harm done
    by putting that record in. It is never going to be triggered.
    And in the case of someone, the very, very minuscule number of
    cases where someone has actually gotten a status adjustment,
    then you might have an arrest which the moment they make a call
    to the LASC, the LASC can say, well, actually, they got a
    status adjustment. You can let them go. So they might be
    detained for a few minutes extra. But the cost is minimal, so I
    share your frustration with the slowness of the adding of data.
        I would also elaborate on your point earlier about Mohammed
    Atta and when he was in the custody of that officer in Broward
    County, Florida. If we had this bill in place, I think things
    would have been different. This bill, in combination with what
    the ICE has been doing with the NSEERS system, where
    individuals coming from particular countries or holding certain
    profiles overstay their visas, that also dumps those names into
    NCIC right now and it is unclear whether Mohammed Atta would
    have triggered that or not.
        If you add the bill S. 1906, and especially the provision
    requiring known overstays to go into NCIC, that officer would
    have had a hit when he typed in Mohammed Atta's name and date
    of birth in his squad car computer. That might have caused the
    plot to unravel. Who knows. Maybe he was just one of the 19 and
    maybe it would have gone on without him.
        But the point is, if we could go back in time and do
    everything we could to try to prevent that from happening, I
    would certainly think that we would try to do this, get as much
    information to State and local police through NCIC as possible,
    and I don't see any strong legal or policy objection to doing
    so.
        Senator Sessions. Thank you, Mr. Chairman.
        Chairman Chambliss. Senator Cornyn?
        Senator Cornyn. Thank you, Mr. Chairman. Mr. Chairman, it
    seems to me that we have come to the point as a result of the
    various hearings that you have chaired in the immigration
    reform debate dealing with various aspects of it where I think
    it has become increasingly clear that we have two choices to
    start with. One is to do something and one is to do nothing.
    Clearly, I am on the do something side and I think it is
    important as a result of this hearing and others that you have
    had to determine exactly what that something is.
        But I don't want any of us to be under the illusion that
    doing nothing is free. Obviously, there are a lot of costs
    associated with it. The Federal Government has done a lousy job
    across the board and particularly in foisting the costs of
    illegal immigration onto the State and local government. Last
    year, the Federal Government provided $250 million in SCAAP
    funding for criminal aliens and that is the State Criminal
    Alien Assistance Program, which is supposed to reimburse the
    cost of detention and law enforcement related to these aliens,
    but that is about a third of the documented costs to State and
    local governments. Texas got $20 million, and I should tell
    you, that is a fraction of the costs that have been incurred by
    State and local government in my State.
        You add on to there unanticipated costs, like health care
    costs of people when they are in detention, which is
    uncompensated and performed by the local taxpayer and the
    State. I had to get that off my chest.
        But with that, I want to ask Professor Harris and perhaps
    others of you about community policing and reimbursement for
    costs, payment of costs and training, which I think are all
    legitimate issues that we need to figure some way to deal with.
        One of the things that I read, and Professor Harris, maybe
    we can start with you, is while community policing is
    important, and I would grant you that, I agree with you on
    that, that a lot of the violence and crime being committed is
    simply unreported at all by people who are reluctant to call
    law enforcement authorities, whether they be State, Federal, or
    otherwise. And so I know it is hard for us to get a handle on
    how much is occurring because it is not being reported. It is
    hard to quantify what you don't know or what is not being
    reported.
        But a lot of the crime, it is my suspicion--I think this is
    probably true--is being committed by members of that community
    against each other, and so there is sort of a double-whammy
    there. So rather than only looking at the trust, which is
    important, between law enforcement and the community, I am
    wondering whether it is the community itself, let us say in
    this instance illegal immigrants, who are suffering the most,
    or how you would put that in the balance of deciding how we
    deal with this problem.
        Mr. Harris. Yes, Senator. It is clearly the community
    itself that suffers the most. You are quite correct that many
    crimes do go unreported. A surprising number of crimes go
    unreported. It always surprises me when I look at those
    statistics.
        The community itself suffers the most when predators roam
    the streets, and they generally roam in their own communities.
    That is why when you have immigrant communities, it is doubly
    difficult and doubly important to make the efforts to have
    connections with people so that they will work with the police.
    It is not the natural inclination of many in immigrant
    communities to work with police because many of them come from
    countries in which police are corrupt, in which it can't mean
    anything good when the police officer comes to your door or
    stops your car. And building that kind of trust so that
    immigrants in general will come to see that working with the
    police is very much in their interest is a very difficult task.
        I think it only becomes more difficult if we add other
    reasons to fear this police. This is why, for instance, police
    in your own State, in Austin, Texas, have made very concerted
    and strong efforts to connect with their immigrant communities
    to impress upon them that they want people to come forward and
    they want people to do things to prevent the crime before it
    happens.
        They want to have drug dealing reported to them. They want
    to have every robbery reported to them. They don't want these
    cases to fall through the cracks and they will do what they
    have to do, the police tell the community, to make them safe,
    because every time they don't make them safe, every time a
    crime is not reported, adding any additional reasons not to
    report crimes simply makes it more difficult for the police to
    do. It adds more victims within that community, outside that
    community. Making the streets safe is always the top priority
    for local police, and community policing has, frankly, been
    popular because it works that way, because it actually shows
    real results over time. It gets police where they want to be.
    It brings crime down in the course of connecting communities
    with their officers.
        Senator Cornyn. I will go to Mr. Kobach in just a second to
    respond to that same question, but let me just say, Professor
    Harris, since you mentioned Austin, it always concerned me that
    when we call ourselves a nation of laws, when communities like
    Austin and others had day employment facilities where obvious
    immigrants, and who knows how many of them are here legally
    versus illegally, are waiting to be hired for day labor and
    what kind of mixed message we are sending to the community as a
    whole. We are a nation of laws, but we only respect some of
    those laws.
        Mr. Harris. That is very true.
        Senator Cornyn. How do you address that?
        Mr. Harris. It is a very, very good and penetrating
    question, Senator, because what it points out is that the
    immigration problem--and we have a huge immigration problem in
    this country--the immigration problem is a problem of economics
    as much as anything else. The reason that people go and hire
    day laborers, some legal and some not, is because, frankly, it
    pays. They find it a good thing. It is good for their business.
    The people want to work. They might work for less.
        And until we address some of those basic questions of
    economics, I don't have any wish to make our discussion more
    complicated, but simply relying on law enforcement will only
    take us a certain distance. It is like many other problems. If
    you have only one tool, a hammer, everything will look like a
    nail. Unless we go beyond thinking of this just in law
    enforcement terms, we will not make any kind of progress.
        It is not a good thing for society when laws are not
    honored. But what we need to do is we need to think how is the
    best way to bring this whole system in conformity with law.
        Senator Cornyn. Mr. Kobach?
        Mr. Kobach. Yes, Senator Cornyn. Thank you. I would have
    two responses. One, with respect to community policing, those
    communities that have gone the farthest in the direction of
    accommodating or taking a hands-off policy toward illegal
    aliens are, of course, those communities that have formally
    adopted the so-called sanctuary policies, where they formally
    prohibit their police officers from communicating with the
    Federal Government or formally prohibit their police officers
    from asking the questions.
        To take Professor Harris's words, it is the community that
    suffers, I would say exactly. There has been a lot of
    documentation in Los Angeles, which has had a sanctuary policy
    for a long time. Right now, 95 percent of all outstanding
    warrants for homicides in Los Angeles are for illegal aliens,
    95 percent. What it does is it creates a haven where those
    aliens who are involved in other illegal activity know that
    they won't be bothered.
        There are numerous reports from police officers who say,
    look, we know that these gang members have left. They have been
    deported already. We see them back. We know that they are
    illegal. We aren't allowed to make any arrest on that basis. We
    have to wait until we have evidence of some other crime. Now,
    they know that there is an immigration violation occurring, a
    criminal immigration violation, by the way, to reenter after
    deportation, occurring right in front of them, a continuing
    violation, but they can't do anything about it.
        Consequently, the gangs know this and they know that they
    are going to be able to reenter with impunity. And another
    statistic that I just found shocking is that 60 percent of
    L.A.'s 2,000-member 18th Street Gang, which is a particularly
    violent drug trafficking gang, 60 percent is composed of
    illegal aliens, it is estimated. The aliens see this, and it is
    indeed the community that suffers when the police's hands are
    tied.
        And that leads me to my second point, and that is, really,
    if communities follow these sanctuary policies or if the
    Federal Government doesn't act to clarify and say, look, you
    can act and we want to encourage your city councils to allow
    you to act, then you have a tool taken out of the tool box. You
    look at some of the cases that the Tenth Circuit and Ninth
    Circuit have adjudicated. Usually, the case arises in a
    situation like this.
        The police is watching the group of aliens because he is
    trying to make a drug bust. He is trying to pursue some other
    investigation and he doesn't yet have enough information to
    make an arrest based on that, but he is getting close. But he
    then comes across information that the alien is here illegally.
    Well, sometimes it makes more sense in law enforcement to build
    the quickest case you can, to use that tool, which is an
    effective and fast tool and say, well, we know we have an
    immigration violation here. We can get the person out. We can
    stop this drug ring on that basis, and that is exactly the kind
    of situation that led to those cases in the Tenth Circuit.
        It is kind of like Al Capone. It would have been harder to
    build the case on the racketeering charges, but tax evasion was
    easy. Well, similarly, it is sometimes hard to build the case
    on drug trafficking, but immigration is easy. We are taking
    that tool away from police officers and we can make our
    communities safer if our police officers have more tools.
        I would just like to beg the Committee's pardon. I am going
    to have to depart early, and I thank you for the opportunity to
    testify.
        Senator Cornyn. My time is up and so am I. Thank you.
        Chairman Chambliss. Mr. Picolo, there was a recent AP story
    where it was reported that sheriffs on the Florida Domestic
    Security Task Force oppose issuing driver's licenses to illegal
    aliens. Can you shed any light on that, particularly with
    reference to the security concerns that may be present in that
    thought process?
        Mr. Picolo. Yes, sir. The sheriff that has raised the
    highest concern, Sheriff Don Hunter, is in my region and was
    just in Tallahassee Monday on it. The bill was introduced
    approximately three weeks ago and we are nearing the end of our
    legislative session. The primary concern was regarding the
    documentation requirements to secure such a license.
        It is, quite frankly--we quite frankly have very little
    confidence in the source documents that many of these aliens
    possess and the authenticity of the source documents that many
    of these aliens possess. Some of the other source documents,
    such as matricular consular, we have very little confidence
    that those types of source documents would be accurate
    reflections of who we are actually issuing a driver's license
    to, and until those kinds of concerns can be addressed, I don't
    think the sheriffs in Florida are going to support this
    legislation.
        Chairman Chambliss. Thank you. Senator Sessions, anything
    else?
        Senator Sessions. I wanted to ask Ms. Malkin about the
    Malvo situation. I know that that fingerprint in Montgomery,
    Alabama, played a role in his apprehension, John Mohammed. But
    you mentioned that the print went into the IDENT system but not
    to NCIC. Would you explain for those who are not sophisticated
    in that what that means and why that was important?
        Ms. Malkin. The IDENT system was used by the legacy INS,
    and I believe ICE now, to fingerprint and photograph suspected
    illegal aliens and Malvo's two index fingers were recorded into
    the system and those were the only records on file of his
    prints. So when the local authorities in Alabama were trying to
    identify the fingerprint at the Alabama liquor store scene
    where apparently Malvo and Mohammed had committed a robbery,
    they couldn't find anything, and that is because they were
    looking in the NCIC database. I think that case just
    underscored the need to merge those two databases, and as
    Professor Kobach, I think, mentioned, that effort is going on
    now.
        Senator Sessions. And one more question. You mentioned the
    San Jose situation. I appreciate your writing. It is superb,
    and you articulate this well. How would you articulate the
    mentality of the average police officer in the San Jose Police
    Department with regard to their conflicted responsibilities of
    trying to enforce the law and then being told what they can't
    do? What did you learn from that?
        Ms. Malkin. Absolute frustration. I mean, it was
    extraordinary that a spokesperson of a police department would
    be as candid as Ms. Unger was with me. I think it is a little
    bit too convenient to dismiss and pooh-pooh the politically
    correct culture and the effect that it has on morale of these
    police departments, particularly in sanctuary cities like Los
    Angeles, New York, San Jose, Portland, Seattle.
        I have interviewed dozens of police officers who want to
    cooperate, who would like not to have that sort of Sword of
    Damocles hanging over their head, that if they were to
    proactively contact Federal Homeland Security Department
    officials, that they might suffer negative consequences, and
    these are people who work day in and day out with the victims
    of massive illegal immigration and law breaking, and as has
    been said, in many cases, the victims of those crimes are
    illegal aliens themselves.
        Now, there is no empirical evidence that knowing that they
    could be turned in will lead them not to cooperate with law
    enforcement. I mean, I just cited the Malvo case. This is not a
    sanctuary city and certainly Malvo's mother knew that there was
    a risk that they could be turned in and they suffered the
    consequences of that risk.
        I personally and candidly believe that it is not a bad
    thing for law breakers, and immigration law breakers in
    particular, to feel some sort of fear that they might suffer
    the consequences of their law breaking. I mean, this is the
    problem. This is the problem with before September 11, and
    unfortunately afterwards, is that we think that immigration law
    breakers should be exempt. And I think getting a handle on it
    and starting to get a handle on our immigration chaos means
    starting to enforce the law uniformly and consistently and
    without apology.
        Senator Sessions. One brief question. With regard to the
    part of the legislation I have offered that says you could lose
    your SCAAP funding, which isn't a lot of money, but lose that
    funding if you have an overt policy against enforcing or
    coordinating with INS, what about these sanctuary cities? I
    mean, most people in America don't know there is a sanctuary
    city. Can you tell us what the cities you have mentioned and
    what it means to be a sanctuary city?
        Ms. Malkin. Well, basically, you are creating safe havens,
    not just for your garden-variety otherwise law abiding illegal
    aliens but for terrorists and criminal aliens, as well, and we
    saw that in New York City.
        Senator Sessions. The cities don't allow enforcement, or
    what is it that makes it--
        Ms. Malkin. I talked about the San Jose Police Department
    and its policy, and that is not just in police departments but
    also in cities, as well. Professor Kobach had mentioned Los
    Angeles, where Special Order 40 has been in place for a long
    time. A lot of the city employees that I have talked to
    basically think of it as a gang order, that they cannot
    proactively contact Federal immigration authorities to let them
    know if they suspect someone of being an illegal alien.
        Senator Sessions. Thank you. Thank you, Mr. Chairman.
        Chairman Chambliss. Thank you, and to each of our
    witnesses, thank you very much for being here. This has been
    very enlightening, been very informative. You folks are the
    experts. That is why we have got you here. We value your
    opinions very highly, and as we move through this process, we
    very likely will be back in touch with you formally or
    informally to continue a dialogue.
        The record will remain open for 7 days for any additional
    statements or materials. This hearing is now adjourned.
        [Whereupon, at 4:52 p.m., the Subcommittee was adjourned.]
        [Questions and answers and submissions for the record
    follow.]
        [Additional material is being retained in the Committee
    files.]

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