[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



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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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