[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]



     NEW ``DUAL MISSIONS'' OF THE IMMIGRATION ENFORCEMENT AGENCIES

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

                                HEARING

                               BEFORE THE

                      SUBCOMMITTEE ON IMMIGRATION,
                      BORDER SECURITY, AND CLAIMS

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 5, 2005

                               __________

                           Serial No. 109-32

                               __________

         Printed for the use of the Committee on the Judiciary


    Available via the World Wide Web: http://www.house.gov/judiciary


                                 ______

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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  ADAM SMITH, Washington
MIKE PENCE, Indiana                  CHRIS VAN HOLLEN, Maryland
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, Chief of Staff-General Counsel
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

        Subcommittee on Immigration, Border Security, and Claims

                 JOHN N. HOSTETTLER, Indiana, Chairman

STEVE KING, Iowa                     SHEILA JACKSON LEE, Texas
LOUIE GOHMERT, Texas                 HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   ZOE LOFGREN, California
ELTON GALLEGLY, California           LINDA T. SANCHEZ, California
BOB GOODLATTE, Virginia              MAXINE WATERS, California
DANIEL E. LUNGREN, California        MARTIN T. MEEHAN, Massachusetts
JEFF FLAKE, Arizona
BOB INGLIS, South Carolina
DARRELL ISSA, California

                     George Fishman, Chief Counsel

                          Art Arthur, Counsel

                 Luke Bellocchi, Full Committee Counsel

                  Cindy Blackston, Professional Staff

                   Nolan Rappaport, Minority Counsel


                            C O N T E N T S

                              ----------                              

                              MAY 5, 2005

                           OPENING STATEMENT

                                                                   Page
The Honorable John N. Hostettler, a Representative in Congress 
  from the State of Indiana, and Chairman, Subcommittee on 
  Immigration, Border Security, and Claims.......................     1
The Honorable Sheila Jackson Lee, a Representative in Congress 
  from the State of Texas........................................    51
The Honorable Steve King, a Representative in Congress from the 
  State of Iowa..................................................    57
The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia..........................................    64
The Honorable Dan Lungren, a Representative in Congress from the 
  State of California............................................    66

                               WITNESSES

Mr. Michael Cutler, former INS Senior Special Agent
  Oral Testimony.................................................     3
  Prepared Statement.............................................     6
Mr. T.J. Bonner, President, National Border Patrol Council
  Oral Testimony.................................................     7
  Prepared Statement.............................................    10
Ms. Janice Kephart, former September 11 Commission Staff Counsel
  Oral Testimony.................................................    15
  Prepared Statement.............................................    16
Mr. Richard Stana, Director of Homeland Security and Justice 
  Issues, U.S. Government Accountability Office
  Oral Testimony.................................................    23
  Prepared Statement.............................................    26

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement and biography of Eugene R. Davis, Retired 
  Deputy Chief Border Patrol Agent, U.S. Immigration and 
  Naturalization Service.........................................    71
Prepared Statement of the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas.............    73
Prepared Statement of the Honorable Elton Gallegly, a 
  Representative in Congress from the State of California........    74
Map of ``9/11/2001 Deaths by State of Residence,'' submitted by 
  Mr. Michael Cutler.............................................    75

 
     NEW ``DUAL MISSIONS'' OF THE IMMIGRATION ENFORCEMENT AGENCIES

                              ----------                              


                         THURSDAY, MAY 5, 2005

                  House of Representatives,
                       Subcommittee on Immigration,
                       Border Security, and Claims,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:35 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable John 
Hostettler (Chair of the Subcommittee) presiding.
    Mr. Hostettler. The Subcommittee will come to order.
    The first two Subcommittee hearings of the year examined in 
detail how the immigration enforcement agencies have inadequate 
resources and too few personnel to carry out their mission. The 
witnesses mentioned the lack of uniforms, badges, detention 
space, and the inevitable low morale of frontline agents who 
are overwhelmed by the sheer volume of incoming illegal aliens. 
If this were not enough, these ``immigration enforcement'' 
agencies also face internal confusion resulting from dual or 
multiple missions in which immigration has all too often taken 
a back seat. Sadly, contrary to Congress' expectations, 
immigration enforcement has not been the primary focus of 
either of these agencies, and that is the subject of today's 
hearing.
    The Homeland Security Act, enacted in November 2002, split 
the former Immigration and Naturalization Service, or INS, into 
separate immigration service and enforcement agencies, both 
within the Department of Homeland Security. This split had been 
pursued by Chairman Sensenbrenner based on testimony and 
evidence that the dual missions of INS had resulted in poor 
performance.
    There was a constant tug-of-war between providing good 
service to law-abiding aliens and enforcing the law against 
law-breakers. The plain language of the Homeland Security Act, 
Title D, creates a ``Bureau of Border Security,'' and 
specifically transfers all immigration enforcement functions of 
INS into it. Yet when it came down to actually creating the 
two: new agencies, the Administration veered off course. 
Although the service functions of INS were transferred to 
USCIS, the enforcement side of INS was split in two, what is 
now Immigration and Customs Enforcement, or ICE, to handle 
interior enforcement, and Customs and Border Protection (CBP) 
to guard our borders.
    ICE was given all Customs agents, investigators, 
intelligence and analysis-from the Treasury Department, as well 
as the Federal Protective Service to guard Federal buildings, 
and the Federal Air Marshals to protect our airplanes, and 
finally the INS investigators.
    CBP was given all Treasury Customs inspectors at the ports-
of-entry, Agriculture Inspector from the Department Of 
Agriculture, and INS inspectors.
    At no time during the reorganization planning was it 
anticipated by the Committee that an immigration enforcement 
agency would share its role with other enforcement 
functions,such as enforcement of our customs laws. This simply 
results in the creation of dual or multiple missions that the 
act sought to avoid in the first place.
    Failure to adhere to the statutory framework established by 
HSA has produced immigration enforcement incoherence that 
undermines the immigration enforcement mission central to DHS, 
and undermines the security of our Nation's borders and 
citizens.
    It is not certain on what basis it was determined that 
customs and agriculture enforcement should become part of the 
immigration enforcement agency, except to require Federal 
agents at the border to have more expertise and more functions.
    It is also unknown on what basis the Federal Air Marshals 
should become part of this agency, especially since it has been 
revealed that the policy is not to apprehend out-of-immigration 
status aliens when discovered on flights. If the mission of the 
Department of Homeland Security is to protect the homeland, it 
cannot effect its mission by compromising or neglecting 
immigration enforcement for customs enforcement.
    The 9/11 terrorists all came to the United States without 
weapons or contraband--Added customs enforcement would not have 
stopped 9/11 from happening. What might have foiled al Qaeda's 
plan was additional immigration focus, vetting and enforcement. 
And so what is needed is recognition that, one, immigration is 
a very important national security issue that cannot take a 
back seat to customs or agriculture. Two, immigration is a very 
complex issue, and immigration enforcement agencies need 
experts in immigration enforcement. And three, the leadership 
of our immigration agencies should be shielded from political 
pressures to act in a way which could compromise the Nation's 
security.
    While I am grateful for the service and good work of the 
heads of our immigration agencies--some of whom are leaving 
presently for other experiences in Government--I would urge the 
Administration in the future to place the leadership of the 
immigration agencies in the hands of those experienced in 
immigration matters.
    Mr. Hostettler. At this point, I will turn to other Members 
of the Subcommittee for opening statements.
    Mr. King, no statement at this time?
    At this time I would like to turn to members of our panel 
and introduce them.
    Michael Cutler began working for the former Immigration and 
Naturalization Service in 1971 as an immigration inspector 
assigned to JFK National Airport in New York. Throughout his 
career, he has been an immigration inspector, an immigration 
adjudicator, and became a special agent in 1975. He has been 
invited to testify before Congress and the 9/11 Commission on 
many occasions by both the Majority and Minority because of his 
broad experience in immigration enforcement over several 
decades. He is also a frequent commentator on immigration 
matters in such programs as Lou Dobbs, Fox News, numerous radio 
programs and regularly appears on Radio WIBA in Madison, 
Wisconsin, on Up Front with Vicki McKenna. Michael Cutler 
graduated from Brooklyn College of the City University of New 
York in 1971 with a B.A. In communications arts and science.
    Our second witness will be Mr. T.J. Bonner, head of the 
National Border Patrol Council, which represents more than 
10,000 frontline Border Patrol employees. Mr. Bonner, a 27-year 
veteran Border Patrol agent, is in a unique position to tell us 
today about the current state of our immigration enforcement 
agencies, the effect that policies have on morale, and Border 
Patrol's ability to accomplish the immigration enforcement 
mission, and employees' assessment of whether they have been 
given proper mission direction and priorities.
    Ms. Janice Kephart was counsel to the immigration team of 
the National Commission on Terrorist Attacks upon the United 
States, or the 9/11 Commission. Prior to that she served as 
counsel to Senate Subcommittee on Technology, Terrorism and 
Government Information, chaired by Senator John Kyl. Ms. 
Kephart has been the author of numerous articles on immigration 
and terrorism, and of a book entitled, The Enterprise of 
Terror: The Structure of al-Qaeda and Radical Islamic Groups in 
the United States. She also has been a guest on major media 
shows such as Lou Dobbs.
    Richard M. Stana is Director of Homeland Security and 
Justice Issues at the Government Accountability Office. During 
his 29-year career with GAO, he has directed reviews on a wide 
variety of complex military and civilian management issues. Mr. 
Stana earned a master's degree in business administration with 
a concentration in financial management from Kent State 
University. He is also a graduate of Cornell University's 
Johnson School of Management Program on Strategic Decision 
Making, and Harvard University's JFK School of Government 
Program on Leadership and Performance.
    If the witnesses would please rise to take the oath, and 
raise your right hand.
    [Witnesses sworn.]
    Mr. Hostettler. Let the record reflect that all witnesses 
answered in the affirmative.
    Without objection, all of your written testimony will be 
made a part of the record. If you could summarize that within 5 
minutes. We have a series of lights, no bells, no whistles, but 
lights to inform you of the time that you have left in your 
testimony.
    Once again, thank you for being here today.
    Mr. Cutler, you are recognized.

  TESTIMONY OF MICHAEL CUTLER, FORMER INS SENIOR SPECIAL AGENT

    Mr. Cutler. Thank you, Mr. Chairman.
    Chairman Hostettler, Ranking Member Jackson Lee, 
distinguished Members of Congress, members of the panel, ladies 
and gentlemen, I welcome this opportunity to provide testimony 
today on the critical issue of the dual missions of the 
immigration enforcement agencies.
    While my prepared testimony will focus on ICE, it's my 
understanding that the inspections program of CBP is similarly 
hobbled in its ability to enforce the immigration laws.
    For decades our Nation has had the reputation of being the 
can-do Nation; if we could dream it, we could accomplish it. 
Our Nation's entry into both world wars ended with victory. 
When President John F. Kennedy challenged our scientists and 
engineers to land men on the moon and return them safely to the 
Earth, in less than a decade we again rose to the challenge.
    Today our Nation is challenged by many problems, and the 
one issue that impacts so many of these other issues, the 
enforcement and the administration of the immigration laws, 
eludes our purported efforts at solving it.
    For decades the immigration crisis--and it is, indeed, a 
crisis--has grown more significant, and its repercussions have 
increased exponentially. We are waging a war on terror and a 
war on drugs. The immigration component of this battle, of 
which not only the lives of our citizens, but the survival of 
our Nation itself is on the line, appears to be insoluble. I am 
here today to tell you that we can control our Nation's 
borders, and we can effectively administer and enforce the 
immigration laws from within the interior of the United States.
    In order to gain control of our borders and our immigration 
programs, we need to see it as a system; we also need to 
understand that the interior enforcement program is critical to 
gaining control over our Nation's borders.
    Nearly half of the illegal aliens do not enter the country 
by running the border, but rather by being admitted through a 
port-of-entry and then subsequently violating their terms of 
admission. Special agents are desperately needed to not only 
seek to arrest illegal aliens, but to conduct field 
investigations to uncover immigration fraud to restore 
integrity to the benefits program which has been historically 
plagued with high fraud rates. This is especially troubling as 
we wage a war on terror. The 9/11 staff report on terrorist 
travel made it clear that this dysfunction of bureaucracy aided 
the terrorists who wrought so much damage upon our Nation.
    The fact is that many of the managers of ICE appear more 
focused on traditional Customs-oriented investigations than 
they are on enforcing the Immigration and Nationality Act to 
safeguard our Nation from terrorists and criminals who have 
become adept at hiding in plain sight by making use of gaping 
loopholes and deficiencies in the immigration bureaucracy that 
go undetected by the law enforcement agency that is supposed to 
enforce these laws.
    Since the merger of legacy INS and legacy Customs into ICE, 
the new ICE special agents are no longer even being given 
Spanish language training, even though it's been estimated that 
some 80 percent of the illegal alien population is, in fact, 
Spanish-speaking. It is impossible to investigate individuals 
you are unable to communicate with, yet this critical language 
training program has been eliminated from the curriculum of new 
ICE agents. I have to believe that this represents more than a 
simple oversight on the part of the leaders at the Academy; it 
underscores an absolute lack of desire to enforce the critical 
immigration laws.
    If anything, our agents should be getting additional 
language training as we seek to uncover aliens operating within 
our Nation's borders who are a threat to our well-being. 
Strategic languages such as Arabic, Farsi and Urdu should be 
added to the curriculum, along with Chinese, Korean and other 
such languages; yet at present the curriculum not only fails to 
mandate any foreign language training, it doesn't even offer 
any foreign language training.
    Identity documents are the lynchpins that hold the 
immigration program together, yet incredibly, while other law 
enforcement agencies provide in-service document training to 
their personnel to help them recognize altered or counterfeited 
identity documents, ICE does not. Immigration law training is 
not as effective as it needs to be.
    Besides the extreme lack of resources that have been the 
focus at previous hearings, we need to make certain that the 
people in charge of enforcing the immigration laws have a true 
understanding of the laws and have a clear sense of mission 
that many key managers appear to lack. At present, nearly every 
field office of ICE is headed by a Special Agent-in-Charge who 
came from the U.S. Customs Service and not from the former INS. 
The immigration laws are highly complex and require that the 
executives who are charged with leading the enforcement effort 
have a thorough understanding of the laws that they are 
responsible for enforcing. They should have real-world 
experience at investigating and aiding in the prosecution of 
criminal organizations that produce fraudulent documents, 
promote fraud schemes to circumvent the immigration laws, 
engage in large-scale human trafficking or the smuggling of 
criminal or terrorist aliens into the United States. They 
should also have real-world experience and understanding of the 
ways in which proper enforcement of the immigration laws can 
synergistically act as a force multiplier when ICE agents team 
up with law enforcement officers from other law enforcement 
agencies.
    The effective enforcement of immigration laws can also help 
to cultivate informants to facilitate not only investigations 
into immigration law violations, but into other areas of 
concern, including narcotics investigations, gang 
investigations and terrorism investigations.
    The current lack of leadership that is experienced in 
immigration law enforcement, the lack of effective training and 
the previously examined lack of resources have been disastrous 
for the enforcement of the immigration laws, thereby imperiling 
our Nation and our people.
    It is vital that there be real accountability and real 
leadership where immigration is concerned. While Customs and 
Immigration were both border enforcement agencies, the border 
is where their similarities begin and end. I would, therefore, 
strongly recommend that the law enforcement officers charged 
with enforcing the immigration laws have a dedicated chain of 
command with a budget and training program that focuses on 
immigration. Certainly they can and should work cooperatively 
with the former Customs enforcement agents, but they need a 
separate identity in order to make certain that the current 
``Customization'' of immigration law enforcement stops 
immediately for the security of our Nation. The enforcement of 
our immigration statutes needs to be the priority, and not an 
afterthought.
    I look forward to your questions.
    Mr. Hostettler. Thank you, Mr. Cutler.
    [The prepared statement of Mr. Cutler follows:]

                Prepared Statement of Michael W. Cutler

    Chairman Hostettler, Ranking member Jackson Lee, distinguished 
members of Congress, members of the panel, ladies and gentlemen. I 
welcome this opportunity to provide testimony today on the critical 
issue of the dual missions of the immigration enforcement agencies. 
While my prepared testimony will focus on ICE, It is my understanding 
that the inspections program of CBP is similarly hobbled in its ability 
to enforce the immigration laws.
    For decades our nation had the reputation of being the ``can do'' 
nation. If we could dream it, we could accomplish it. Our nation's 
entry into both World Wars ended with victory. When President John F. 
Kennedy challenged our scientists and engineers to land men on the moon 
and return them safely to the earth within less than a decade, we again 
rose to the challenge. Today, our nation is challenged by many 
problems. The one issue that impacts so many of these other issues, the 
enforcement and administration of the immigration laws, eludes our 
purported efforts at solving it. For decades, the immigration crisis, 
and it is, indeed, a crisis; has grown more significant and its 
repercussions have increased exponentially. We are waging a war on 
terror and a war on drugs. The immigration component of this battle, in 
which the lives of not only our citizens, but the survival of our 
nation itself is on the line, appears to be insoluble. I am here today 
to tell you that we can control our nation's borders and we can 
effectively administer and enforce the immigration laws from within the 
interior of the United States.
    In order to gain control of our borders and our immigration 
program, we need to see it as a system. We also need to understand that 
the interior enforcement program is critical to gaining control of our 
nation's borders. Nearly half of the illegal aliens did not enter the 
country by running the border, but rather by being admitted through a 
port of entry and then subsequently violating the terms of their 
admission. They stay longer than the period of time for which they were 
admitted, they seek unauthorized employment or they commit felonies. 
Special agents are desperately needed to not only seek to arrest 
illegal aliens, but to conduct field investigations to uncover 
immigration fraud to restore integrity to the benefits program which 
has been historically plagued with high fraud rates. This is especially 
troubling as we wage a war on terror. The 911 Staff Report on Terrorist 
Travel made it clear that this dysfunctional bureaucracy aided the 
terrorists who wrought so much destruction upon our nation. The fact is 
that many of the managers of ICE appear more focused on traditional 
Customs-oriented investigations than they are on enforcing the 
Immigration and Nationality Act to safeguard our nation from terrorists 
and criminals who have become adept at hiding in plain sight by making 
use of gaping loop-holes and deficiencies in the immigration 
bureaucracy that go undetected by the law enforcement agency that is 
supposed to enforce these laws.
    Since the merger of Legacy INS and Legacy Customs into ICE, the new 
ICE special agents are no longer being given Spanish language training 
even though it has been estimated that some 80% of the illegal alien 
population is, in fact, Spanish speaking. It is impossible to 
investigate individuals you are unable to communicate with. Yet, this 
critical language-training program has been eliminated from the 
curriculum of the new ICE agents. I have to believe that this 
represents more than a simple oversight on the part of the leaders at 
the academy. It underscores an absolute lack of desire to enforce the 
critical immigration laws. If anything, our agents should be getting 
additional language training as we seek to uncover aliens operating 
within our nation's borders who are a threat to our well being. 
Strategic languages such as Arabic, Farsi and Urdu should be added to 
the curriculum along with Chinese, Korean and other such critical 
languages. Yet at present, the curriculum not only fails to mandate any 
foreign language training, it doesn't even offer any foreign language 
training.
    Identity documents are the lynchpins that hold the immigration 
program together, yet incredibly, while other law enforcement agencies 
provide in-service document training to their personnel to help them 
recognize altered or counterfeit identity documents, ICE does not.
    Immigration law training is similarly not as effective as it needs 
to be.
    Besides the extreme lack of resources that has been focused on at 
previous hearings, we need to make certain that the people in charge of 
the enforcement of the immigration laws have a true understanding of 
the laws and have a clear sense of mission that many key managers 
appear to lack. At present, nearly every field office of ICE is headed 
by a Special Agent-in-Charge who came from the United States Customs 
Service and not from the former Immigration and Naturalization Service. 
The immigration laws are highly complex and require that the executives 
who are charged with leading the enforcement effort have a thorough 
understanding of the laws that they are responsible for enforcing. They 
should have real-world experience in investigating and aiding in the 
prosecution of criminal organizations that produce fraudulent 
documents, promote fraud schemes to circumvent the immigration laws, 
engage in large-scale human trafficking or the smuggling of criminal or 
terrorist aliens into the United States. They should also have real-
world experience and understanding of the ways in which proper 
enforcement of the immigration laws can synergistically act as a force 
multiplier when ICE agents team up with law enforcement officers from 
other federal agencies as well as local and state police departments. 
The effective enforcement of immigration laws can help to cultivate 
informants to facilitate not only investigations into immigration law 
violations, but violations of laws in many other areas of concern 
including narcotics investigations, gang investigations and terrorism 
investigations.
    The current lack of leadership that is experienced in immigration 
law enforcement, the lack of effective training and the previously 
examined, lack of resources have been disastrous for the enforcement of 
the immigration laws, thereby imperiling our nation and our people.
    It is vital that there be real accountability and real leadership 
where immigration is concerned. While Customs and Immigration were both 
border enforcement agencies, the border is where their similarities 
begin and end. I would therefore strongly recommend that the law 
enforcement officers who are charged with enforcing the immigration 
laws have a dedicated chain of command with a budget and training 
program that focuses on immigration. Certainly they can and should work 
cooperatively with the former Customs enforcement agents, but they need 
a separate identity in order to make certain that the current 
``Customization of immigration law enforcement'' stops immediately for 
the security of our nation. The enforcement of the immigration statutes 
needs to be the priority and not an after-thought.
    I look forward to your questions.

    Mr. Hostettler. Agent Bonner.

  TESTIMONY OF T.J. BONNER, PRESIDENT, NATIONAL BORDER PATROL 
                            COUNCIL

    Mr. Bonner. Thank you, Chairman Hostettler and other 
distinguished Members of the Subcommittee.
    On behalf of the 10,000 frontline Border Patrol employees 
that I represent, I would like to present some of the concerns 
that we have about the dual enforcement mission of the Border 
Patrol and the other immigration agencies.
    Long before the passage of the Homeland Security Act, or 
even the debate over that, this Subcommittee and other Members 
of Congress were talking about the problems in the former 
Immigration and Naturalization Service and the dual mission 
that it had, a mission of service and enforcement. And, in 
fact, about 6 years ago I testified in front of this 
Subcommittee supporting a bill that would have separated 
enforcement from service within what was then the Immigration 
and Naturalization Service.
    The Homeland Security Act achieved that goal. It split 
enforcement from service, and, as you noted, Mr. Chairman, it 
called for the creation of a bureau of border security. 
Unfortunately the Administration took it one step further and 
split the enforcement bureaucracy into two different bureaus, 
the Bureau of Customs and Border Protection and the Bureau of 
Immigration and Customs Enforcement. This, in our view, was a 
serious mistake. It created the One Face at the Border 
Initiative where we expected employees to be experts in two or 
even three disciplines, immigration and customs in all cases, 
and in some cases agriculture.
    If there were truth in advertising in some of these 
Government initiatives, this one should have been called One 
Hand Tied Behind Our Back, because it minimized our 
effectiveness by at least 50 percent, and this affects the 
Border Patrol just as much as it does the other agencies. While 
on its face it may seem that the Border Patrol is the least 
affected, we are very dependent on ICE for our detention needs.
    The mess that we have down in south Texas right now, where 
I was speaking to one of our agents down there, is at any given 
time in south Texas 80 percent of our resources are tied up in 
processing people from countries other than Mexico. While we 
have 20 percent of our resources out on the line, 80 percent of 
them are in the office processing people just to give them a 
piece of paper that allows them to go wherever they want in the 
United States, with a promise to show up within about 6 months. 
And, of course, over 90 percent of these people never do show 
up. This is simply unacceptable.
    The other part that we rely upon ICE for are interior 
enforcement and work site enforcement. We are not authorized--
although we are authorized by law to deal with these issues, we 
are not authorized by policy to deal with these issues. This 
results in millions of people coming to the United States 
looking for and getting jobs. If we are serious about 
controlling illegal immigration, we need to crack down on the 
root cause of people coming to this country, and that root 
cause is employment. We have to turn off the employment magnet. 
H.R. 98 would do that, and I would urge this Committee to look 
carefully at that legislation or ideas similar to it so that we 
can discourage people from coming into this country in search 
of employment. We need to get the word out to illegal aliens 
that it does them no good to come in. Whether they come in 
illegally, or come in legally and overstay their welcome, it 
will do them no good because no one will offer them a job 
because they are afraid of the consequences, the employers are 
afraid of the consequences. We need to take that step if we 
want to control illegal immigration.
    Mr. Cutler brought out the fact that the former Immigration 
and Naturalization Service enforcement entities have been 
``customized.'' That's a word that you hear when you talk to 
any Border Patrol agent, or any former INS person. You have 
Customs managers who are trying to fit round pegs into square 
holes and make everything work in the old Customs way. This is 
not sound public policy. As Ralph Waldo Emerson sagely noted in 
1841, ``A foolish consistency is the hobgoblin of little minds, 
adored by little statesmen and philosophers and divines.'' In 
essence, what they are trying to do is make everything the same 
when, in fact, there are major differences between immigration 
and customs enforcement.
    And my recommendation is that we fix this problem. This can 
be undone the same way that it was done, through the 
administrative reorganization authority granted within the 
Homeland Security Act. What needs to happen is a separate 
organization that would handle all of the immigration 
enforcement, and within that you would have the Border Patrol, 
immigration inspections, detention and removal, immigration 
investigations, and a separate organizations for customs. This 
would allow these officers to specialize. There was an old 
advertising slogan, I believe, from Kentucky Fried Chicken: We 
do one thing right. And if you allow these agents to 
specialize, they can do it right, they want to do it right, but 
they need the tools to do it right, they need the resources to 
do it right, they need the policies that enable them to do it 
right, and they need the laws that are enforceable to go out 
and to do it right.
    I would welcome your questions, and thank you for your 
time.
    Mr. Hostettler. Thank you, Mr. Bonner.
    [The prepared statement of Mr. Bonner follows:]

                   Prepared Statement of T.J. Bonner



    Mr. Hostettler. And as an aside, I want to thank you for 
agreeing to come and testify for this Subcommittee on such 
short notice. Just to inform the panel and the record, we had a 
witness that had to back out at the last minute because of 
certain personal concerns, and you, Agent Bonner, were willing 
to step forward. Thank you for doing that.
    Mr. Bonner. I am happy to do so.
    Mr. Hostettler. Ms. Kephart.

  TESTIMONY OF JANICE KEPHART, FORMER SEPTEMBER 11 COMMISSION 
                         STAFF COUNSEL

    Ms. Kephart. Thank you, Chairman Hostettler, and Ranking 
Member Jackson Lee and Mr. King, for holding this hearing and 
giving me the opportunity today to discuss with you DHS border 
enforcement functions in light of my 9/11 Commission work on 
terrorist travel.
    We are all here today because September 11th taught us that 
all elements of our complicated border apparatus must be 
brought to bear if we truly seek to stop foreign terrorists 
from entering and staying in the U.S.
    From my vantage point of spending 15 months devoted to 
figuring out how the 9/11 terrorists conducted their travel 
operation into the U.S. so easily, it is clear to me that we 
must put old thinking aside when it comes to immigration issues 
if our ultimate goal is truly effective border security. We 
must seek a long-term plan that incorporates all we know about 
terrorist travel. We must start from the fact that foreign 
terrorists carefully plan their attempts to enter and stay in 
the U.S. based on a relatively sophisticated understanding of 
our border security.
    Terrorists will use any infiltration tactic if it will 
work, from hiding in a ship's hull, or car trunk, to 
fraudulently seeking legitimate U.S. visas or passports. These 
terrorists do not just represent al Qaeda; Hamas, and Hezbollah 
and lesser-known terrorist organization operatives also engage 
in all varieties of immigration fraud.
    Once in the United States, terrorists seek legal status. 
They resist removal through sham marriages, claims of political 
asylum, and applications for naturalization. In one case a 
terrorist even managed to stay in the U.S. when his spouse won 
the visa lottery. They seek U.S. and State-issued 
identifications to establish themselves in communities and 
travel more easily. And wherever a vulnerability exists, from 
visa issuances to admission standards at our ports-of-entry, to 
our physical borders, to our immigration benefits adjudication 
system, a terrorist will take advantage of it.
    Terrorists move throughout our border system in a 
continuum, taking advantage of every legal and illegal means 
possible. However, our current border system is less reflective 
of that continuum now than it was prior to 9/11. Prior to 9/11, 
the seven elements of our immigration system were split amongst 
three departments and three agencies. Today those same elements 
are split amongst three departments and six agencies. To add to 
the confusion, immigration enforcement and Customs were merged 
together and then split in a manner that made little sense in 
practical application. And while it made some sense to merge 
custom and immigration functions at ports-of-entry, that merger 
does not necessarily transfer to the interior.
    Why did all this happen? After 9/11, lawmakers and the 
Administration hurried with the solution, applying pre-9/11 
solutions, where economic security was a priority, to a post-9/
11 world, where national security is the priority. We also 
failed to deal with the underlying problems that have 
traditionally plagued our immigration system, and those 
failures still exist today. They include, first, a lack of 
commitment to enforcing immigration law. Not only do the 
complexities and gray areas of immigration law make it 
difficult to enforce, but also enforcing the law is nearly 
impossible where strong special interests with diametrically 
opposed viewpoints prevent forward momentum. We must rise above 
special interests and provide Americans with the security that 
they deserve.
    Second, critical intelligence on terrorist travel 
indicators still is not being declassified and distributed to 
our frontline officers 3\1/2\ years after 9/11. One specific 
indicator present on five passports used by three 9/11 
hijackers remains unknown today to immigration personnel. To 
make matters worse, very few in the ranks of immigration have 
security clearances necessary to acquire critical classified 
information now being collected on terrorist travel.
    Third, and perhaps most importantly, we lack an overarching 
policy where rules, guidelines and resources are allocated in a 
manner that encourages legal immigration to this country and 
discourages illegal immigration. We have also failed to give 
our border system the clout it deserves and desperately needs 
to be effective. Expertise in policymaking, with access to 
tough decisionmakers has also been lacking.
    In today's world, every element of the border system must 
be viewed primarily for its enforcement function and 
application of the rule of law. Only then will we begin to 
infuse the integrity into the system to deter terrorists in 
illegal entry and encourage legal entry.
    In conclusion, we all know that terrorists are creative, 
and they are adaptable, yet we have the ability to counter them 
by being adaptable in our thinking ourselves and provide our 
frontline officers with a job that they are all eager to do and 
capable of doing. My written testimony lays out a series of 
recommendations which I believe can help us go further in 
taking border security out of rhetoric and into reality.
    Thank you.
    Mr. Hostettler. Thank you, Ms. Kephart.
    [The prepared statement of Ms. Kephart follows:]

                Prepared Statement of Janice L. Kephart

                              INTRODUCTION

    Good afternoon and thank you for the opportunity to discuss 
terrorist travel and immigration enforcement with you today. My 
testimony is based on my work as a counsel on the 9/11 Commission 
``border security team,'' as an author of the 9/11 staff report, 9/11 
and Terrorist Travel, and a 380 page report on the current state of 
terrorist activity in the United States I conducted as a consultant. At 
the Commission, I was responsible for the investigation and analysis of 
the INS and current DHS border functions as pertaining to 
counterterrorism, including the 9/11 hijackers' entry and acquisition 
of identifications in the United States. My current work includes a 
study of terrorist travel tactics in the United States, specifically 
focusing on the abuse of our immigration system by 118 indicted and 
convicted terrorists.
    Please note that the views I present here today are my own, and do 
not necessarily reflect those of the 9/11 Commission. I want to thank 
both Chairman Hostettler and Ranking Member Jackson Lee for holding 
this important hearing. I also wish to applaud Congress for passing the 
National Intelligence Reform Act of 2004. That Act contained many 
valuable terrorist travel provisions born of the 9/11 Commission's 
recommendations. I look forward to seeing the national terrorist travel 
strategy and the implementation of the new passport rules for all 
visitors come to fruition as required by the Act. It is the hope of 
many of us who are working on this important topic that this 
Subcommittee and Congress as a whole will continue to exercise their 
oversight authority on the important issue of terrorist travel and 
overall border security, ensuring that our Government continues to 
implement the lessons learned as a result of the tragic events of 
September 11, 2001.
    From the outset, let me make it clear that I, like many, consider 
the benefits and wealth of human potential that immigration brings to 
this country to be one of our greatest strengths as a nation. However, 
I also believe that we owe it to all Americans to maintain the 
integrity of our borders. To do so, we must scrutinize effectively 
those who seek to come here. September 11 has taught us that secure 
borders are a matter of national security.
    We will not have secure borders until we enforce the laws already 
in place; until we properly train, equip and support our first line of 
defense; and until we are prepared to share more information with 
frontline personnel. Nor will we have full immigration reform until we 
understand the extent of our vulnerabilities and devise a long term 
plan to fix the border system, so that policy priorities can be set and 
executed with political credibility; clarify and streamline our complex 
immigration laws where necessary; and allocate and account for funds 
and other resources appropriately; and restructure our border system to 
reflect the importance and mission of our immigration apparatus.
    Today I plan to discuss with you whether the current structure of 
our border security system accomplishes its most important 
responsibility: to provide security for U.S. citizens and legal 
residents of the United States from foreign visitors who seek to do us 
harm. To understand why structure matters, we must first gain an 
understanding of how foreign terrorists are exploiting the 
vulnerabilities in our border system, why these vulnerabilities exist, 
and then why the structure of the border system matters. Based upon 
these findings and analysis, recommendations follow.

                   U.S. BORDER SYSTEM VULNERABILITIES

    Despite good initiatives by the administration, such as the 
deployment of U.S. VISIT to international airports, weaknesses in the 
U.S. border system still exist. Terrorists will continue to 
successfully enter the United States because we still lack adequate 
technologies; integrated information systems that house biometric 
travel histories of visitors and immigrants; and specialized training 
in terrorist travel tactics. As noted in 9/11 and Terrorist Travel, 
front line immigration officers are not adequately trained to detect 
fraudulent travel stamps in passports, terrorist indicators in 
passports, or behavioral cues. Indeed, as a staff member for the 9/11 
Commission I had access to more information about the techniques that 
terrorists use to gain unlawful entry in the United States than 
frontline officers.
    Without repeating the content and findings of 9/11 and Terrorist 
Travel, terrorists will use any infiltration tactic if it works, from 
hiding in a ship's hull or car trunk, to seeking legitimate visas, to 
entering into a sham marriage that will gain them access to either a 
visa waiver, or, better yet, a U.S. passport. These terrorists do not 
just represent Al Qaeda; Hamas and Hizballah and lesser-known terrorist 
organization operatives also engage in all varieties of immigration 
fraud.
    Once in the United States, they seek legal status and resist 
removal through sham marriages, claims of political asylum, and 
applications for naturalization. They seek U.S. and state issued 
identifications to establish themselves in the community and travel 
more easily. They take advantage of amnesty and temporary worker 
programs, and in one case even managed to stay in the United States 
when a spouse won the visa lottery.
    Terrorists move through our border system in a continuum. However, 
our current border system is even less reflective of that continuum 
than it was prior to 9/11.
    To understand where we are today and why, we need to look back at 
our border system prior to 9/11 and the creation of DHS. We must 
understand why our border system failed prior to 9/11, and why it is 
still struggling today. We must first take a look at the variety of 
operational border missions that will likely always make up the U.S. 
immigration system.

        THE U.S. IMMIGRATION SYSTEM PRIOR TO THE CREATION OF DHS

    Even prior to 9/11, our immigration system was failing to provide 
the basic requirement of good government-value. The result was a 
constant chorus that our immigration system was ``broken'' and 
``laughable''. Value was measured in the level of security we perceived 
the immigration system to provide. However, security was defined as one 
of economic, not national, security. The debate raged over the economic 
value of illegal workers to our system while it was widely recognized 
the Citizenship USA program put in place to facilitate legal 
immigration was an embarrassing failure. There was also increasing 
concern that illegal populations worsened drug and crime problems. The 
inability of the government as a whole to address these issues resulted 
in a freezing of resources to address the problem. A mere 2,000 
interior enforcement agents had the impossible job of dealing with an 
estimated 6 million illegal aliens. Our immigration system was failing 
to provide even economic security.
    No role in counterterrorism prior to 9/11. I know from personal 
experience as a counsel to the Senate Judiciary Committee in the late 
1990s that before 9/11 INS employees considered their agency to have no 
role in counterterrorism. When posed the question, I was simply told, 
``That's the FBI's job.'' I responded: ``Well then who is to keep 
terrorists from entering the country?'' I was given no answer.
    Only after public hearings on foreign terrorist activity in the 
United States on the five year anniversary of the first World Trade 
Center bombing and insisting that the INS take part in those hearings, 
did the INS set up a National Security Unit. That unit never had more 
than a half dozen full time employees. They worked in a virtual 
information vacuum, seeking information from the FBI and field where 
they could. The INS' intelligence unit was considered of so little 
value that the INS Commissioner had decided years prior that daily 
briefings were a waste of time. This failure was just one manifestation 
of a woefully inadequate border system.
    Overly complex immigration laws. Another way in which our 
immigration system was failing to provide value was that immigration 
rules were immensely complex, hard to understand, and even harder to 
apply. Inspectors at ports of entry, border patrol agents, immigration 
agents, immigration benefits adjudicators, and immigration attorneys 
and judges were all stymied by rules that were fuzzy and time-consuming 
to implement. Why? For decades, immigration rules were constantly built 
upon the latest crisis. Wholesale review of the efficiency, fairness, 
and functionality of these laws never took place. Concern over reprisal 
often led to more lax enforcement--both for those inspecting visitors 
coming into the country and in our immigration courts. All of this 
contributed to poor morale and a burgeoning immigration problem: those 
seeking to come here and stay knew there were plenty of legal and 
illegal loopholes to facilitate remaining in the United States 
indefinitely. Those working in immigration were demoralized. The 
problem worsened.
    Lack of effective policies. We also failed to be holistic and 
proactive in our immigration policies. Where policies existed, they 
were divergent: at the ports of entry and in immigration benefits, it 
was all about customer service. However, interior enforcement was about 
rounding up illegal aliens, sanctioning employers not playing by the 
rules, and issuing removal orders to criminal aliens. The conflict 
between enforcement and customer service once more resulted in a 
constant push me--pull you policy-making. No real forward momentum was 
created. There was another problem as well: a lack of efficiency in 
supervision at ports of entry, where duplicative hierarchies existed 
for both customs and immigration inspectors. Many sought a combined 
force.
    Poor use of funding. The immigration system also failed to provide 
value in its use of appropriated funds. Congress became so frustrated 
with ad hoc technologies and no real movement towards completion of new 
immigration benefits technologies that in the late 1990s Congress 
chastised the INS in its conference reports, denying needed resources 
until the INS could show accountability for monies previously provided. 
During this time, the student tracking and entry-exit systems were 
started and, for different reasons, never came to fruition. Any money 
that was appropriated went disproportionately to the Border Patrol, but 
the problems of illegal immigration seemed to ebb and flow depending 
upon where resources were physically allocated on the border. 
Meanwhile, the State Department's Consular Affairs was suffering near 
annual cutbacks. Immigration agent resources remained level despite a 
growing illegal population, and the immigration inspector workforce 
grew slightly, but not in proportion to the burgeoning number of 
foreign visitors.
    Throughout the 1990s, hearings were held constantly on Capitol 
Hill. Topics included the porous southwest border, the slow processing 
of naturalization applications, and the inadequacy of immigration law 
enforcement. The debate raged: maybe the structure isn't right. For 
years, two sets of solutions were proposed: (1) break up INS into its 
enforcement functions and benefits functions and/or (2) merge Customs 
and INS together.
    In testimony before the 9/11 Commission in January 2003, former INS 
Commissioner Jim Ziglar told us in lengthy testimony about the severe 
challenges he faced when he was asked by newly elected President Bush 
to restructure the INS and reduce immigration benefits backlogs. In 
early August 2001, Commissioner Ziglar took office. On September 10, 
2001, he had a business plan for restructuring the INS ready for 
review, in part based on the work of the prior INS Commissioner, Doris 
Meissner. In early 2002, as Commissioner Ziglar still attempted to move 
forward with restructuring, especially in light of the events of 9/11 
(as he told me during interviews), he undertook to determine what it 
would take for the INS to actually fulfill its mandate. He provided the 
following testimony:

        We concluded that the INS annual budget would have to grow from 
        $6.2 billion in FY 2002 to approximately $46 billion by FY 2010 
        . . . assuming Congress and the administration actually desired 
        that the mandates be fulfilled. It was also assumed immigration 
        laws would remain static. . . . It was concluded that in order 
        to carry out the enforcement mandates of the Congress and 
        administration, past and present, the INS would need 
        approximately the following:

              27,960 Investigators/Special Agents (compared to 
        the 2,000 employed at the time of the study), a 14-fold 
        increase

              31,700 Border Patrol Agents (compared to 10,000)

              21,500 Immigration Inspectors (compared to 5,000)

              15,600 Deportation Officers (compared 650)

              1,440 Attorneys (compared to 770)

              110,000 detention beds (compared to 21,107)

              and a vast increase in office space, support 
        staff, vehicles, computer equipment, etc.

These numbers speak for themselves.

                  THE IMMIGRATION SYSTEM MOVES TO DHS

    Prior to 9/11 and the creation of DHS, the seven elements of our 
immigration system were buried in bureaucracy at two main locations: 
the INS at DOJ and Consular Affairs at the State Department. The U.S. 
Coast Guard supported the INS at sea. After 9/11, the dismantlement of 
the INS became inevitable--the years of discussion about its break-up 
finally seemed to be grounded in something real, as if the wholesale 
splitting up of functions into completely separate bureaus would have 
increased our national security prior to 9/11. Of course it would not 
have, as the INS was not considered to have a role in national security 
prior to 9/11.
    Today, we have severe fragmentation, with those seven elements 
split between three departments (DOJ, State, and DHS) and within DHS, 
in four different agencies: CBP, ICE, USCIS, and the Coast Guard. There 
is no policy shop under the Secretary to pull disjointed elements 
together. If Secretary Chertoff creates such a policy shop, that alone 
will significantly upgrade policy cohesion throughout DHS border 
functions.
    The current DHS structure has combined pre 9/11 solutions to a post 
9/11 world. Border functions now at DHS represent acceptance of pre 9/
11 views: that enforcement and customer service missions require 
wholesale bifurcation, and government efficiency requires the combined 
forces of the INS and Customs Service.
    These presumptions are inaccurate; they fail to reflect current 
national security realities.



    First, in a post 9/11 world, all immigration functions have at 
their foundation national security. The top priority of the immigration 
system therefore must be enforcement of the law and assuring adequate 
but efficient security vetting of applicants throughout all facets of 
our immigration system. Until we accept that all elements of our 
immigration system have a significant role to play in the war on 
terror, our immigration system will not optimize the value--that of 
security--it must provide to Americans.
    Second, while a good argument remains that ports of entry have both 
an immigration and customs mission, it does not necessarily translate 
that interior enforcement of immigration and customs laws achieves 
maximum effectiveness by a joining of those law enforcement functions. 
While there is limited and justified overlap of some immigration and 
customs enforcement operations, especially where aliens are committing 
crimes over which customs personnel would traditionally have 
jurisdiction (and vice versa). However, there is nothing preventing 
joint task forces for such operations from being equally efficient. 
Moreover, traditional immigration investigations against employers 
violating immigration law, immigration benefits fraud, SEVIS and, 
eventually, U.S. VISIT violators, need to remain a priority. They 
should find equal weight with traditional Customs investigations, and 
not be subsumed.
    Perhaps most importantly, what seems to be lacking in our analyses 
of providing a border system with value is new thinking. We must 
consider that immigration activities--whether enforcing the law or 
providing a benefit at or within our borders--all require overarching 
cohesive policies, resources and interconnected information resources 
to make it work. However, that does not mean that we should wait to 
shore up our immigration system while we tackle the complex and 
difficult policy, budgetary and legal questions that have traditionally 
burdened our immigration system. We can, and should, begin redressing 
some of its severe deficiencies in interior enforcement now. I believe 
we can do so without negatively impacting long range planning of our 
immigration system.

                 STRENGTHENING IMMIGRATION ENFORCEMENT

    To rebuild public confidence, our nation must create a strong and 
intelligent border screening system that is effective both at keeping 
terrorists out of the United States and in facilitating legitimate 
travel and immigration services. The system will never provide a 
perfect result. Some terrorists will get through, despite our best 
national effort. In that case, the public needs to know that border 
authorities investigate the reasons for the infiltration and make 
necessary changes to further strengthen the system.
    In pursuit of this objective, the rule of law matters. The process 
of intercepting terrorists and detecting them through their violations 
of immigration law is properly a domain of national security and 
demands highly focused law enforcement efforts by trained, dedicated 
professionals. Terrorists represent a lethal threat. But a border and 
immigration system with consistent and systematic enforcement is much 
harder for terrorists to penetrate. A United States whose borders and 
immigration system are governed by the rule of law, moreover, sends a 
message of justice that is itself a deterrent to terrorists.
    To promote public confidence in the rule of law, it is critical to 
reform our immigration system. We cannot afford the vulnerability of 
the borders, the lack of internal regulation, the gaps in our 
enforcement system, and the continued corrosion of the rule of law 
caused by the presence of 10 million illegal aliens. The underlying 
condition of our immigration system is that there is a dearth of 
predictable and consistent enforcement.
    We must insist upon people entering lawfully and abiding by the 
terms of their admission as a fundamental basis of our immigration 
system, and desist from viewing immigration violations as mere 
technicalities. On the other hand, demands for ``catch-up'' enforcement 
of immigration law, while appealing to some, threaten the availability 
of resources to develop and sustain a significant, dedicated, and 
targeted counterterrorism effort at the borders. Quite simply, there 
will not be a sound and secure border security system or an optimal 
deterrent policy against terrorists until we have an immigration policy 
and system that operates more realistically, efficiently, and according 
to the rule of law.
    First, reform should include simplifying the law and standardizing 
its application in the field. Our 9/11 investigation showed that 
mistakes by inspectors at the ports of entry resulted in part from the 
inordinate complexity of immigration laws. While the standard of 
decision-making at the ports of entry, in enforcement, and in 
immigration benefits proceedings can be enhanced by national standard 
operating procedures and specialization, Congress and the President 
also hold responsibility for simplifying the laws.
    Second, the U.S. government should adopt a counterterrorism 
immigration enforcement strategy that brings all relevant federal, 
state and local entities to the table. All of our law enforcement 
agencies have a role to play in denying terrorists the ability to enter 
and remain in the United States. These efforts need to be coordinated, 
robust and matched to the expertise of each agency. To be successful, 
such a strategy should include comprehensive training in the nuances of 
immigration law and the resources to implement the law equitably and 
fully. It also requires intelligence (and training) on terrorist travel 
methods and watchlisting that is available to our border officials in a 
timely manner.
    Specifically, DHS should invest in the ability of state and local 
law enforcement to detect terrorists among immigrant communities by 
providing training, real-time access to federal expertise, the 
necessary security clearances, and other resources as needed. 
Currently, only two states, Alabama and Florida, have or are receiving 
training from federal immigration authorities on immigration 
enforcement relevant to their jurisdictions. I welcome the news that 
more states and communities are recognizing the value they can provide 
to this effort. They can help find terrorists and criminals in the 
United States when they examine travel documents in the normal course 
of their duties. State and local law enforcement should be encouraged 
to use the DHS Law Enforcement Support Center (LESC) to access 
databases and experts on travel documents.
    Third, DHS and the Justice Department should propose adoption of 
tougher anti-fraud laws in the United States, where document and other 
forms of illicit travel facilitation are linked to terrorists and 
punishments and sentences do not fit the crimes.
    Fourth, special consideration must also be given to the consular 
officers and immigration inspectors, agents, and benefits adjudicators 
who have the opportunities to detect and intercept terrorists as 
discussed above. Up to now, they have not been considered critical 
assets in the war against terrorism even though they are responsible 
for determining who enters and who remains in the United States. They 
need to be given an enhanced role in any counterterrorism immigration 
strategy. This includes providing appropriate security clearances for 
certain personnel at ports of entry and elsewhere as needed.
    Fifth, all these reforms must be adopted under an overarching 
policy that encourages legal immigration and discourages illegal 
immigration. We are capable of maximizing security and efficiency 
throughout the immigration system while minimizing privacy intrusions. 
As we build efficient security at the perimeter of our borders by 
facilitating entry of those we deem legitimate and denying entry to 
those we do not, pressure on interior enforcement will eventually 
become more manageable.

       CREATING A DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

    One potential way to provide the immigration system with the 
political backbone it deserves is to consider a long-term plan of 
providing the immigration system with its own structure. By creating a 
Department of Immigration and Border Protection, fragmentation is 
minimized and enforcement and benefits operations act to support each 
other. If we consider that we, as a country, can adopt policies and 
laws that encourage legal immigration and discourage illegal 
immigration all upon a foundation of biometrically based travel 
histories and secure background checks, then we divest ourselves of the 
notion that we have to fragment our operations into boxes that only 
incite unnecessary turf and resource allocation wars. CBP and ICE are 
remnants of old thinking. We need immigration enforcement functions to 
stay together where it makes sense, and that is the case where 
detention and removal, anti-smuggling, and overall immigration 
enforcement is merely an extension of border inspection and patrol 
functions.
    The bureaucracy that houses the U.S. border system should be the 
Department of Immigration and Border Protection. Right now, immigration 
services, (CIS) immigration enforcement (CBP and ICE), and border 
policy (BTS) are all co-located at DHS. Visa issuance remains at the 
State Department. It is not the fragmentation of these agencies that is 
the entire problem, however. Instead, the main problem is one of 
accountability and access to information. There is no one who answers 
directly to the President solely on border issues, nor has direct 
access to the top tiers of intelligence.
    Instead, the creation of DHS has replicated one of the problems of 
legacy INS: too many layers of bureaucracy between the president and 
those on the front lines of immigration policy-making and information 
gathering. This problem is documented in 9/11 and Terrorist Travel.
    Today's DHS Secretary not only has to deal with an overly complex 
set of border, immigration and customs enforcement, and immigration 
benefit issues, but wholly new arenas for the government such as 
information assurance and infrastructure protection. This inevitably 
means that the DHS Secretary (like all previous parent organizations of 
immigration agencies) has a multitude of responsibilities, only a 
handful of which are critical to border security. No one thoroughly 
knowledgeable or directly responsible for the border system is 
available to answer questions at a cabinet meeting or listen to 
critical intelligence briefings. Consider the following factors:

          Accountability and access to the President are keys 
        to having the right information from the right people to make 
        border security effective. Border security never has been 
        effective in this country.

          U.S. immigration policies inform our foreign policy 
        and affect the world's view of the United States. Immigration 
        has always been central to shaping our identity as a nation. A 
        Department of Immigration and Border Protection would reflect 
        that importance.

          Immigration issues and laws are immensely complex, 
        politically and legally, and require a tremendous amount of 
        expertise to deal with them effectively.

          Well-honed border policies have become a top priority 
        for national security.

          About 40 percent of DHS employees, or about 40,000 
        personnel, are in a border-related agency or directorate. That 
        is more than the year 2000 Congressional Budget Office numbers 
        for the Department of State (27,000); the Department of Labor 
        (16,000); Department of Education (5,000); Department of Energy 
        (16,000); and the Department of Housing and Urban Development 
        (10,000).\1\
---------------------------------------------------------------------------
    \1\ Congressional Budget Office. ``A CBO Paper: Changes in Federal 
Civilian Employment: An Update.'' May 2001.

    As described in 9/11 and Terrorist Travel, ever since their 
inception, immigration services have been treated poorly in the 
---------------------------------------------------------------------------
hierarchy of government bureaucracies:

        Although the nation's growth depended on successive waves of 
        immigrants, the Bureau of Immigration never seemed quite 
        important enough to become its own department, with its own 
        secretary reporting directly to the president of the United 
        States. In fact the bureau was something of an administrative 
        orphan. Over the century its name and bureaucratic home changed 
        repeatedly, and increasing numbers of confusing statutes 
        created conflicting jurisdictions in both immigration services 
        and enforcement.\2\
---------------------------------------------------------------------------
    \2\ 9/11 and Terrorist Travel, p. 90.

---------------------------------------------------------------------------
    The endnote to that paragraph reads:

        In 1895, the Bureau of Immigration was created and placed under 
        the Secretary of the Treasury. In 1903, the bureau moved to the 
        newly created Department of Commerce and Labor, taking the name 
        the Bureau of Immigration and Naturalization in 1906. When the 
        Department of Labor was created in 1913, the bureau moved with 
        it. In 1933, these functions were consolidated to form the 
        Immigration and Naturalization Service under a commissioner. In 
        1940, the Service was transferred to the Department of Justice 
        where it remained until March 2003. See ``History of 
        Immigration and Naturalization Agencies,'' 8 U.S.C. 'Sec. 1551. 
        In addition, there are at least 150 statutes providing the 
        legislative history of immigration.\3\
---------------------------------------------------------------------------
    \3\  9/11 and Terrorist Travel, Chapter 4, endnote 126, at pp. 238-
239.

    With rumors that CBP seeks to absorb ICE, interest in shifting the 
BTS policy shop into the office of the DHS Secretary, and infighting 
between CIS and ICE, and ICE and CBP, many bureaucratic issues remain 
to be resolved. Perhaps placing these border functions in a standalone 
department would allow desperately needed reforms to be put in place, 
including strategic planning for budgets and resources that could 
finally make the U.S. border system enforceable and effective.

                               CONCLUSION

    Terrorists are creative and adaptable enemies. The 9/11 hijackers 
probed our defenses, found our weakest points, and ruthlessly exploited 
them. To counter the threat, we must be aware of new trends in 
terrorist travel. We must be more flexible in our efforts to counter 
them.
    We must upgrade our border system now. Our current system sets the 
bar far too low for terrorists trying to enter the United States. 
Fortunately, our frontline officers are extremely dedicated, talented, 
and eager to do everything they can to protect this country. Now they 
need the tools and the authority to do their job. Better training, 
government-wide integrated databases, standardized procedures, 
biometrics, the latest technology, and the authority to trust their 
hard-earned instincts, will empower these dedicated officers to keep 
our country safe.
    The thousands of dedicated officers responsible for visa issuance, 
entry, and immigration adjudications have an overwhelming task: to 
identify, out of the millions who seek entry into this country each 
year, the few who represent a danger to the United States. Keeping our 
borders open to well-meaning legal immigrants, who contribute to our 
economy and society, while keeping out and removing terrorists and 
others seeking to harm us, should be a top priority. The 
recommendations in this testimony can make our borders more secure by 
ensuring that policy decisions have the support from the President and 
key issues of enforcement are not mired in unnecessary turf and 
resource battles.

    Mr. Hostettler. Mr. Stana.

 TESTIMONY OF RICHARD STANA, DIRECTOR OF HOMELAND SECURITY AND 
     JUSTICE ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE

    Mr. Stana. Thank you.
    Mr. Chairman, Ms. Jackson Lee, and Members of the 
Subcommittee, I am pleased to be here today to share our views 
on management challenges relating to immigration enforcement 
activities at ICE and CBP as this Subcommittee considers 
potential structural changes in these bureaus to address dual-
mission issues. GAO has conducted numerous reviews of both 
specific programs and overall management in these bureaus, and 
at INS which proceeded them. I would like to make a few points 
that may provide the Subcommittee with insights as potential 
changes to the structure of ICE and CBP are considered.
    First, ICE and CBP face a number of management challenges 
similar to the ones that existed in INS. The challenges at INS 
included a lack of clearly defined priorities and goals; 
difficulty in determining who to coordinate with, when to 
coordinate and how to communicate; and inadequately defined 
roles which resulted in overlapping responsibilities, 
inconsistent program implementation, and ineffective uses of 
resources. In 1999 and 2001, I testified on these management 
issues before this Subcommittee when consideration was being 
given to restructuring INS as a way of addressing these 
challenges. My 2001 testimony in particular concluded that 
while restructuring may help address some of these issues, the 
new organization would still need to address the management 
issues head on. I concluded that unless this was done, 
enforcing our immigration laws, providing services to eligible 
aliens and effectively participating in government-wide efforts 
to combat terrorism would be problematic regardless of how the 
immigration function was organized. In March 2003, the 
enforcement functions of the INS were transferred to the new 
DHS and placed in ICE and CBP. In 2004, we reported that many 
of the same management challenges we found in INS still existed 
in the new bureaus, but mostly in ICE.
    My second point is in evaluating solutions to ICE and CBP 
challenges, including potential structural changes, 
policymakers should ask several key questions. The first 
question is whether ICE and CBP have an effective management 
framework in place. This includes considering whether the 
mission is clearly defined and articulated, the strategic 
planning process is comprehensive and focused on the mission, 
the organization structure supports the mission and strategy, 
performance measures are suitable for gauging progress, and 
leadership and accountability mechanisms are in place. Our work 
showed that ICE and CBP have made some progress, but much 
confusion still exists about roles, mission, responsibilities, 
performance measures and accountability. Reorganizing the 
bureaus now before the mission and strategic plans are fully 
developed and operational could further disrupt the mission and 
operation of these bureaus. More needs to be done to ensure 
that each element of the framework is put in place. If it isn't 
done in proper sequence, mission, then planning, then 
structure, this could result in a case of ready, shoot, aim.
    The second question is whether the processes and systems 
are in place to support the framework and to resolve problems 
as they arise. As I alluded to in my 2001 testimony, moving 
boxes around an organizational chart alone cannot be expected 
to resolve problems without policy, guidance, communication and 
information sharing. These are management problems, not 
necessarily structure problems, and the solutions lie mainly in 
work processes that are clearly understood and followed, 
communication channels and organizational crosswalks that link 
related activities, and information systems that accurately 
report on program status and results. Again, some progress is 
being made, but many problems persist, and they continue to 
affect mission performance.
    The third question is what effect are the transformation 
and integration activities at DHS having on ICE and CBP? It is 
important to recognize that the management challenges in these 
two bureaus exist in the larger context of the creation and 
evolution of DHS, which is the largest reorganization of the 
Federal Government in over 50 years. Despite real and hard-
earned progress, DHS still has significant challenges to 
overcome in all of the management areas, including providing 
focus for management efforts, including strategic planning, and 
managing its human capital. Resolving these challenges at the 
top levels might help address similar challenges in ICE and 
CBP, or it might not. Given that it can take 5 to 7 years until 
change initiatives are fully implemented and cultures are 
substantially transformed, it is an open question whether this 
is the right time for a major restructuring of ICE and CBP.
    In closing, the proposals to merge certain ICE and CBP 
functions to resolve dual-mission issues are well-intentioned 
and are gaining some momentum, but I would like to inject a 
word of caution here. Let's look before we leap. Exactly what 
problem are we trying to fix? Reorganizing an agency or 
function to better align it with its mission and strategic plan 
is desirable and should be done. However, reorganizing mainly 
to address underlying weaknesses in supporting processes and 
systems, such as a lack of coordination and cooperation among 
units, or a lack of guidance relating to operational 
activities, might not be productive. As we have seen, mainly 
reorganizing these immigration and Customs functions at DHS 
without fixing the underlying processes and systems has not 
resolved the long-standing management challenges we saw in INS. 
At the same time, ICE and CBP may not be able to resolve some 
of these challenges on their own if they are affected by a 
higher level of DHS-wide management problems.
    Mr. Chairman, this concludes my statement. And I would be 
pleased to respond to any questions that you or other Members 
of the Subcommittee may have.
    Mr. Hostettler. Thank you, Mr. Stana.
    [The prepared statement of Mr. Stana follows:]

                 Prepared Statement of Richard M. Stana



    Mr. Hostettler. At this point the two of us may engage in a 
rather lengthy set of questions.
    First of all, Mr. Stana, your final point begs the 
question, when you talk about management versus structure and 
ask us to go slowly with regard to restructuring these 
organizations--which is not exactly something we are talking 
about this time, merely investigating the problems that we have 
as a result of these two structures--but when you say 
management versus structure, and you talk about management, is 
that a diplomatic way of talking about policy with regard to 
policy and the aggressive nature or lack of aggressive nature 
in enforcing our immigration laws? Because it seems like if 
your mission was to enforce the immigration laws, then your 
management policy would be such that you would structure an 
organization to meet that mission. And I guess it's a question 
of is it the chicken or the egg. So is it an issue of policy 
and our desire or lack of desire to enforce the immigration 
laws?
    Mr. Stana. I would put it this way: I think it is more of a 
matter of what is the mission of ICE and CBP. Being in DHS, 
whose mission is to enhance national security and to fight 
terrorism, they are taking their cues from the broader 
organization. So when we talk about ICE not doing some things 
now in the interior enforcement of immigration policies, it's 
understandable. The ICE mission is now national security and 
antiterrorism. So what's happening is, at ICE and CBP, they are 
fulfilling that mission by, for example, in work site 
enforcement, by targeting their efforts to trophy targets, 
whether they be nuclear power plants, airplane tarmacs and so 
on. They are not going to the food processing plants like they 
used to because the mission of DHS is national security and 
antiterrorism. If we wanted a fundamental shift to bring the 
mission back to what it was in INS, and that is to enforce 
immigration law and to provide benefits to eligible aliens, 
then that would require a fundamental shift of structure. But 
that is not what the DHS mission is right now. That is number 
one.
    Number two, when I talk about management challenges, I 
guess a shorthand way of looking at it is problem areas, 
problem areas that are not directly linked to how the 
organization is structured. Whether or not, for example, the 
Air Marine Unit that was in ICE was transferred over to CBP to 
line up the mission and the structure to better accomplish that 
mission.
    It's an open question whether putting ICE and CBP 
together--or the interior enforcement people together with the 
Border Patrol is going to fix the bed space problem, because 
ICE can't even get bed space. That is a whole different issue. 
What we are talking about with management is the organizational 
crosswalks so that when ICE calls Border Patrol and says, I 
need bed space, is there someone who answers the phone who 
understands what their role is in helping out in the total 
mission of the agency? Is it clearly communicated who is 
supposed to do what, what their particular mission is down in 
the working levels? Is it understood that when you pick up a 
report that's generated by a financial system or a human 
capital system that says, I spent this many hours on this 
function, that it is accurate and reliable and can be used to 
spot problem areas? Those are management functions and 
management challenges.
    Mr. Hostettler. But if our desire is to foil illegal 
immigration, for example, doesn't that establish a management 
model? And I am asking that rhetorically because I want to go 
to Ms. Kephart and say, in your experience with the 9/11 
Commission--is the Customs function, would that have helped us 
to foil what happened on 9/11? Putting Customs into the mix 
with immigration, would that have helped us?
    Ms. Kephart. Well, I have, perhaps, a slightly interesting 
answer to that question.
    First of all, one of the reasons you see Customs only in 
one page of this staff report called 9/11 and Terrorist Travel 
is because there was so little information that I was able to 
uncover from the Customs agency about their contact with the 
hijackers that I had very little to say.
    That being said, let me comment on that. All the hijackers 
came in. They needed to have Customs declarations, and let me 
make a comment about that. We only were able to get a handful 
of those Customs declarations because Customs only kept them 
for 6 months, and they are only on paper; otherwise they are 
destroyed. I believe that is still the case today. It is not an 
electronic information system the way the INS entry records 
are, however poor that system with the immigration service was.
    Second of all, only a few of them filled out those Customs 
declarations, so once more we had very little information to go 
on because immigration inspectors weren't required to check the 
Customs records coming through because that is a Customs 
function. But remember, at airports of entry, prior to 9/11, 
you had passengers from airplanes being checked 100 percent by 
INS, and 5 percent were being checked by Customs Service. So 
nobody was really looking at those Customs declarations, so I 
couldn't really draw any conclusions from those.
    The one thing I will say in thinking about the Customs 
function is that if you all will recall, Mohammed al-Qahtani 
from August 4, 2001, was the so-called 20th--one of the 20 
terrorists that tried to get in in Orlando, Florida. The 
inspector who stopped him was featured at our hearing on the 9/
11 Commission, et cetera. When I interviewed that inspector in 
depth, one of the things that I asked him about was, he did 
everything you could possibly do to determine that the behavior 
of this person was not right and that he should not be let in, 
but the one thing he did not do was check the man's luggage. 
Now we know that because that was a customs function, he really 
wasn't permitted to do that. But goodness knows, if on August 
4, 2001, he had checked his luggage and we knew that Mohammad 
Atta was waiting upstairs for him, and there was contact 
information in that luggage--perhaps--perhaps that information 
would have been passed on. We don't know, but at that time, 
immigration service would not have passed that information to 
the FBI, but who knows what was in that luggage? And we will 
never know because he voluntarily removed himself that day at 
the great request of that inspector.
    So I can say that Customs would not have stopped it, but 
their reporting was so poor. The one other comment I will make 
is there were 6 secondary inspections of the hijackers. Two of 
those were Customs. The reporting on those inspections was so 
poor that I was unable to really draw any conclusions. So that 
is about what I can say about Customs. I don't think it would 
have stopped it. In the end, they are passengers, they are 
people, they were not cargo, so that is the bottom line for 9/
11.
    Mr. Hostettler. Thank you.
    The Chair now recognizes the gentlelady from Texas for 
purposes of an opening statement and for questions.
    Ms. Jackson Lee. Mr. Chairman, I will yield to Mr. King and 
take my questions following him. Thank you, sir.
    Mr. Hostettler. The Chair recognizes the gentleman from 
Iowa, Mr. King.
    Mr. King. I thank the gentleman, and the gentlelady from 
Texas as well. And I appreciate the testimony of the witnesses 
here today, those on short notice and those on longer notice.
    Curiosity arises. First, Ms. Kephart, the situation that we 
have today with ICE on duty at airports, access now to the 
entry documents as well as the luggage, do you consider that 
resolved?
    Ms. Kephart. Ooh. I hope it's resolved. I haven't been out 
to an airport recently to see how things are working. When I 
was on the Commission, there was much resistance at the few 
airports I was able to go to for Customs agents to actually 
work and do immigration-related work.
    To the extent that they are still doing their old Customs 
work, I think that they are. To the extent that they are 
actually checking luggage to a greater extent, I don't know 
that they are. I didn't check on that, so I can't relate.
    Mr. King. And Mr. Stana, you referenced in your testimony 
that the mission for ICE is national security and not 
immigration enforcement. And can you reference a policy 
statement that establishes that?
    Mr. Stana. I wouldn't say it is either/or. What I would say 
would be immigration in the context of national security. I 
would just reference that to the DHS strategic plans and then 
the ICE--well, ICE doesn't have a strategic plan in final form 
yet, but in their interim plans and CBP plans, they mention the 
nexus to national security. It doesn't preclude immigration 
efforts.
    Mr. King. And is there any directive on the part of 
Congress that you know of that DHS would be reacting to in 
order to promote that kind of a policy, or do you believe that 
is an internal conclusion?
    Mr. Stana. I think what they are doing is taking the 
mission that was given to them statutorily and interpreting it 
in that way. I would point out, though, that of all the 
agencies that are mentioned in the homeland security 
legislation in 2002, only one was abolished, and that was INS, 
for whatever reason. And I know some of us have been in 
hearings for years and years and years, it goes back past the 
Jordan Commission--talking about how to deal with INS, and 
apparently one solution was just to dissolve it.
    Mr. King. And certainly that is the case. But back to this 
point again. If I'm going to track this down to find out where 
the divergence in the philosophy that I have versus the one 
that's being implemented, I probably can't go to a statute and 
identify that.
    Mr. Stana. Well, what you would find is the Department of 
Homeland Security has a mission, to protect the Nation from 
terrorism and so on. And as any agency would do, they would 
further define that in a mission statement and in a strategic 
plan. And in the mission statements and strategic plans, the 
national security and antiterror missions are emphasized 
throughout. It doesn't preclude them from working on 
immigration programs and immigration enforcement certainly, 
it's just that they try to do that in the context of national 
security and antiterrorism.
    Mr. King. One would draw from this that the mindset is more 
toward national security than toward immigration enforcement?
    Mr. Stana. Well, where the two interests intersect, I don't 
know if there would be a competing priority, but I think the 
top priority of the agency is going to be homeland security, 
national security and antiterrorism.
    Mr. King. Thank you, Mr. Stana.
    And, Mr. Cutler, in your background on these issues, could 
you talk a little bit about--and you would have, I would think, 
relationships with a lot of active agents out today. Could you 
talk about the legacy agents, and let us know--have a lot of 
them--have they left enforcement and found other endeavors, and 
do you have any idea what is left from those legacy agents?
    Mr. Cutler. Well, the problem you're addressing is a 
critical one, it's institutional memory, and there is very 
little left in the way of institutional memory.
    Forgive me, I wanted just to clear one point that--when I 
was listening to that prior question.
    Mr. King. Please do.
    Mr. Cutler. We can't look at immigration enforcement and 
say, well, we're just going to go after illegal aliens, or 
we're just going to go after terrorists. Sleepers, which, as 
you know, Robert Mueller, the head of the FBI, talked to the 
Senate Intelligence Committee at a hearing back in February, 
talked about his concerns about sleeper agents. Sleeper agents 
aren't people that just simply come into the country and dig a 
hole in the ground like a cicada and hide there for a year or 
two waiting for a phone call; they are people that hide in 
plain sight.
    If it's employment that draws the bulk of the illegal 
aliens across the border; it's immigration fraud that enables 
them to stay here and hide in plain sight. And if we don't 
address that issue, and if we are told that there's still no 
real mission statement 3\1/2\ years into what's been billed as 
a war on terror, it gives me cause for pause.
    And if you go to the ICE website, the Homeland Security 
website, what is amazing to me--because I just checked it 
yesterday, because you would think that the home page of any 
organization would be where you set forth your number one, 
number two, number three priority. Well, there wasn't a single 
thing on that Website that related back to the enforcement of 
immigration law other than an I-9 and the fact that they've 
gone to electronic I-9s. Now, if this is supposed to be 
homeland security, I have yet another reason not to go to sleep 
this evening.
    And I think you're trying to do the right thing, I think 
you all are, but so many of your colleagues--I have to tell you 
as a New Yorker, as someone who has been working closely with 
the 9/11 Families For a Secure America, it leaves me shaking my 
head. New York has 40,000 cops and enough jail space that if 
they find somebody breaking the law, they find a place to lodge 
them. We have 2,000 special agents to cover the entire United 
States of America; we sit here quibbling over 143 new agents or 
500 new agents. We have no jail space. We have a catch and 
release program, but we want more technology on the border. The 
technology is great, but if the Border Patrol responds to the 
alert, and they have a warm body in custody they can't hold on 
to, why do we bother in the first place?
    You know, as an agent I've had the occasion where I've 
chased somebody five or six blocks, dodged garbage cans that 
the guy was hurling at me as he was trying to get away from me, 
tackled him, rolled around on the ground, tore up my clothes, 
got bruised and the whole 9 yards, and the guy lied for a half 
hour about who he was, and then in the end my boss said, Mike, 
I'm sorry to tell you this, but there is no room at the inn. So 
that guy went home that day; not home to his home country, but 
home to his apartment in Queens.
    Now, we sit here talking about mission statements, we sit 
here talking about fighting a war on terror. You know, if you 
go into neighborhoods that have large numbers of illegal 
aliens, there is an infrastructure that springs up to support 
those folks. It's mail drops, it's money wire services, it's 
document vendors. We've shortened the investigations of 
terrorists--I have arrested terrorists in my career, and they 
make use of these facilities. These are the facilities that 
people who are trying to hide in plain sight make use of. These 
are the facilities that are used by dish washers, drug 
traffickers and terrorists.
    And if we look at this and say, well, we're going to ignore 
the enforcement of the immigration laws unless we have a bona 
fide terrorist, that we come back to the madness that we saw 3 
weeks or 4 weeks, or whatever it was, after 9/11 when a van 
with 8 Pakistani nationals was pulled over by the Triborough 
Bridge and Tunnel Authority police officers in New York. These 
guys had fake ID, and yet immigration didn't want to respond 
because the FBI came out and said, well, their names don't show 
up on a watch list. What names? They had false identification.
    If you don't go after illegal aliens, people who come here 
proffering false identity documents, and if we don't train the 
agents, as I alluded to in my testimony, so they can detect 
fraudulent identity documents, then, goodness gracious, how do 
we plan to protect America? Because the terrorists who attacked 
us on 9/11, Congressman, didn't come here on 9/10, they were 
here for months, and they were hiding in plain sight. And if we 
allow a situation where we fail to address immigration 
enforcement in general terms--you know, the only analogy I can 
make, and I'll be brief because I know I'm past my time, but if 
you have a problem with mildew in your bathroom, it's okay to 
wipe the walls down, but the better thing to do is to get to 
that leaky pipe that's creating that environment that's 
conducive to the growth of mildew.
    If you want to get to illegal aliens who are involved with 
crime and who are involved with terrorism, then you need to get 
to the ability that they have to hide in plain sight, and that 
means you need a vibrant, effective, robust interior 
enforcement mission, plus good Border Patrol people on the 
border helping us from all aspects. You can't stop a boat from 
sinking if you just go after two of the holes in the boat and 
allow the other five to keep leaking.
    We've got to see this as a system, and we need mission 
statements. And we're 3\1/2\ years into a war on terror, and I 
don't go to sleep feeling any safer from the immigration 
perspective whatsoever, to be perfectly honest with you.
    I know I went off the question a bit, but I feel these are 
points that are really vital to make. And the people that still 
work there--last thing, I have to say it before I forget this. 
I spoke to an inspector who said to me right now they are only 
getting about a quarter of the number of referrals to secondary 
for fraudulent documents, because the way they're evaluated, no 
one cares what they do with these folks. The only way you can 
get fired at the airport is to let somebody in who's on the 
watch list; then you're probably going to lose your job. So if 
someone comes in with an altered passport or a phony passport 
and succeeds in getting over, so to speak, they're in, and all 
they want is to be here. They want a 5-minute head start on the 
other side of the door so they can then blend into our society, 
and with no special agents backing up the inspectors at the 
airports, we've got a precarious situation.
    So now with this multipurpose agent, multipurpose inspector 
out there, they're not going after the fraud the way they used 
to, they're not going after interior enforcement, how is that 
protecting the homeland?
    Mr. King. Mr. Cutler, I'm glad I asked you that question. 
And I would yield back----
    Mr. Cutler. I'm sorry.
    Mr. Hostettler. The Chair now recognizes the gentlelady 
from Texas.
    Ms. Jackson Lee. I thank the Chairman very much.
    Mr. Stana, I think you've been on this issue for some time 
now. And I would ask in my remarks--Mr. Chairman, first of all, 
I'm going to ask unanimous consent to submit my statement in 
its entirety into the record, and I will comment very briefly 
from my statement, and then pose some questions.
    Ms. Jackson Lee. But I did want to acknowledge that Mr. 
Stana has been on this issue.
    It's interesting, when you think of yourself as a new 
Member of Congress, when you authored a report in 1997, and I 
was already here. So obviously it's in my own mind.
    But 1997 was far ahead of 2001 in terms of the new focus on 
terrorism. And I think, Mr. Chairman, what I'm going to 
suggest, it might be unique if this Subcommittee and this 
Congress, chaired by the distinguished gentleman from Indiana 
and, more humbly, the lady from Texas, would be able to finally 
give some guidance, some legislative guidance, some collective 
guidance to this question of dealing with the management 
problems. In 1997, Mr. Stana, GAO, offered the light that INS 
itself was confused or management problems were severe, I don't 
want to mischaracterize the report, way before the 
establishment of the Department of Homeland Security. So in 
essence, the Department of Homeland Security was burdened 
further by the lack of the fix for the INS at that time.
    I think the question would be how we approach it, but I do 
believe a thorough study--and I am going to ask you questions 
where that report is, is it dusted off, is it the same report 
from 1997, are you in the midst of a new report--to share with 
the Chairman and myself that we might be able to--because, Mr. 
Chairman, frankly, dumping a new order, if you will, so that 
dumping the entities back together, I think our witnesses, Mr. 
Bonner, who lives this every day and represents thousands of 
hard-working Border Patrol agents and others who are working 
every day to do their job, and Mr. Cutler, injured on the job, 
knows firsthand the difficulty of doing the job.
    And I will raise some questions with the other witnesses. 
But the management problem is so non-partisan, apolitical, that 
frankly, I believe that would be one of the more starry moments 
of this Subcommittee if we could work on this question, even 
though our jurisdiction of course--there is Homeland Security, 
but I would venture to say--I serve on the Subcommittee on 
Management on the Homeland Security Committee and I would 
venture to say we might welcome that kind of collaborative 
effort to deal with that.
    Let me just recount, since I am on my statement, that in 
2003 the DHS split up the U.S. Customs Service and border 
security and reconfigured them into two bureaus, the Bureau of 
Customs and Border Protection and the Bureau of Immigration and 
Customs Enforcement. The basic responsibility of CBP is to 
prevent illegal persons and goods from crossing the border. ICE 
is responsible for tracking down these persons and goods if 
they get past CBP. But the reorganization has resulted in some 
coordination problems; for instance, the training for daily 
border security operations is not working well. Supervisors 
from one legacy agency at a port-of-entry have not received the 
training to answer technical questions of inspectors from 
another legacy agency. Inspectors often are told just to do 
things the way they used to do them. I think we had a 
representative here a couple of weeks ago that said that even 
with supplies or equipment-there were no badges-and there are a 
number of other issues.
    Today on the floor of the House, we made some attempt to 
give you some relief, Mr. Bonner. You know, I want 2,000 
individuals ready for you and 800 for ICE. And we were able to 
give you 500 and that is not what I thought we should be 
focusing on, but I think the main issue is that GAO reported 
that INS lacked clearly-defined priorities and goals and that 
its organizational structure was fragmented, both 
programmatically and geographically.
    Many of you know--and I will put the entire statement into 
the record, but I think it is important to note, let me finally 
say on the statement--additionally, field managers had 
difficulty determining whom to coordinate with, when to 
coordinate, how to communicate with one another because they 
were unclear about headquarters officers' responsibilities and 
authority.
    Mr. Cutler, I want to acknowledge as well the very 
important point in your statement about the idea to expand the 
Case Act to include fraudulent document operations, because 
fraud is a major problem, but I also want personnel to be 
staffed. And since I have just introduced the Save America 
comprehensive immigration reform bill, I would like to be able 
to include that language in that.
    I am not posing a question for you just yet, but I want to 
thank you for your services, Mr. Bonner, and Ms. Kephart for 
her work on the 9/11 Commission.
    Let me go to Mr. Stana because I will say as I have always 
said, the backdrop of my offer to the Chair to work on this 
management, that means we have to put our heads together with 
our staff and either work with--look at what you have developed 
over the time. But I always say, Mr. Chairman, as you know, 
that immigration does not equate to terrorism and I continue to 
say that. It is even more emphasized since these problems arose 
in terms of management issues before 9/11.
    Maybe if we had begun to look holistically at immigration 
and enforcement, we would have had maybe some opportunity at 
prevention. I am not second guessing. The 9/11 tragedy stands 
on its own. But I think we have the responsibility to be able 
to separate the two and understand that immigration enforcement 
doesn't always equal to catching terrorists, but it is 
something important to do, and that the enforcement issues, I 
think, would be strengthened by an immigration policy that all 
of our law enforcement can frankly understand.
    My bill, of course, that I have just introduced tries to 
order those who are here undocumented and tries to ferret out 
those individuals that are criminals and doing criminal acts, 
doing any number of things, but it does the good stuff that we 
do in immigration, reuniting families and otherwise.
    Mr. Stana, help us out, if you would, and I want to ask Mr. 
Bonner and Mr. Cutler a question, but tell us from the '97 
report where we are today. Have we acted on what GAO has 
suggested that we need to do?
    Mr. Stana. Well, you're raising some very good points. As 
you know over the years, we have reported on all kinds of 
problems at the former INS and now with ICE and CBP, and I 
don't want my remarks to be considered as an endorsement of the 
status quo, because the status quo has its problems. When INS 
was dissolved, as you know and you just pointed out again, 
without dealing with the management problems that underlay a 
lot of the other issues, it just made it all the more difficult 
for ICE and CBP to get on top of these things. It has been 
about 3 years since ICE and CBP have been around and frankly 
they have made some progress.
    I wouldn't give them a grade, but there is so much more 
that has to be done. These problems are persisting. Agents in 
the field don't know exactly what they are supposed to do with 
whom. There was an issue not all that long ago where CBP was 
preventing controlled deliveries across the border, drug cases 
that ICE was setting up because CBP thought it was their duty 
to stop drugs from getting into the country. The ICE agents 
wanted to see where the drug buys were going and to what 
organization in order to take down the bigger fish. ICE and CBP 
weren't coordinating.
    Ms. Jackson Lee. Say this again, because this is not a 
negative comment on people who are on doing their job. At the 
border illegal entities were coming across or attempting to 
come across and ICE had an operation inside?
    Mr. Stana. ICE wanted CBP to let those shipments go through 
because ICE wanted to follow the shipments to the larger 
organization in the country, and take down the organization 
rather than one individual. The Border Patrol felt it was their 
duty to stop the drugs at the border, and so it was just a case 
where the two weren't aligned.
    When I speak about management challenges, it sounds wonky, 
but here is a live example. I sympathize with what Mr. Cutler 
was saying. The fact is that interior enforcement was never 
fully funded. I think everybody knew that. If you put the 
organizations back together, there would be resource fights 
again. And you recall in the old days with work site 
enforcement, I think maybe INS put a couple hundred agents on 
that per year to go after the millions of illegal aliens 
unauthorized to work who somehow found employment.
    So simply putting the organization back together again and 
dealing with some of the higher level issues is not going to 
solve the kinds of problems that we are discussing today. You 
have to get down into the weeds and understand how people are 
doing the work, where their problems are, put the right number 
of resources to it, come to a national commitment to deal with 
these programs and go forward.
    Ms. Jackson Lee. Let me get Mr. Cutler and Mr. Bonner 
quickly. Mr. Bonner, management problems. I understand from 
your testimony you are talking about--I think you are talking 
about leaving them as they are, but correct me if I am wrong, 
but tell me what your focus is, but more importantly this whole 
question of management and coordination. And Mr. Cutler, could 
you follow? Mr. Bonner, thank you for your service.
    Mr. Bonner. Thank you. Actually I'm suggesting that you 
blow up CBP and ICE and start over and have a separate entity 
for immigration, call it what you will, pick a name, 
Immigration Enforcement Agency, I don't care, as long as all 
the immigration people are in that same chain of command so you 
don't have----
    Ms. Jackson Lee. So you don't have external and internal?
    Mr. Bonner. Your enforcement people, whether it's in Peoria 
or in San Diego or in Maine, they're all on the same page under 
the same chain of command and they have the same mission and 
the resources can be allocated within there to make sure you 
don't have these disconnects like we have in south Texas where 
thousands of people every month are let go into the country 
because they happen to be from countries other than Mexico and 
there is no funding to hang on to these people.
    I think that it's more than just a management problem. It 
is a structure problem. We can't rely on having King Solomon to 
head up this agency and to manage something that really can't 
be managed, but that he can somehow get it to work because of 
his extraordinary wisdom. We have to rely on a good structure 
in order to make it happen and we don't have that structure.
    Ms. Jackson Lee. Mr. Cutler, are you going to give me a 
brief answer?
    Mr. Cutler. I used to call the ideal situation the Bureau 
of Immigration Enforcement because the inspectors at the border 
along with the Border Patrol, interior enforcement working as 
Janice Kephart, said, is a continuum, understanding there is no 
clear line where the interior ends and the border begins and 
vice versa. But we need to make management accountable for 
attrition rates. Even before this happened, we had a horrific 
problem in many offices and nobody at headquarters said, from 
what I understand there is $200,000 to recruit and train each 
new agent and it is a major expense not only in money but time 
and effort to bring people up to speed and then they left. So 
management felt they weren't being made accountable because 
this was the hot potato that nobody on the political side 
wanted to address.
    That's why I'm gratified to be here because we have to 
address this issue. Making it--closing our eyes won't make it 
go away and I'm glad that you folks are taking it on head on, 
and I appreciate what you're doing with the fraud program that 
you are putting forward.
    Ms. Jackson Lee. Would you echo or support my offer to my 
Chairman that this Committee might be able to shine the light 
of day giving some guidance as to how this can be fixed?
    Mr. Cutler. I think it's fixable. I appreciate that you 
folks want to work together to see that done. The bottom line, 
I tell people when I come here I testify as an American and not 
as a Republican or Democrat, and that's why I have been called 
by both sides.
    Ms. Jackson Lee. Thank you, Mr. Chairman.
    Mr. Hostettler. We will move to a second round of 
questions. And Mr. Stana, I think you have, to a certain 
extent, hit the nail on the head with what we are discussing 
today when you gave the account of what happened at the border 
with regard to Customs. If you have an entity such as CBP, 
Customs and Border Protection and another entity, Immigration 
and Customs Enforcement, you have a customs function at two 
various locations and the agents are multi-tasking. Why would--
if you had an entity that is purely concerned with immigration 
law enforcement, such as border protection and interior 
enforcement in one entity, then they would be concerned at the 
border with enforcing the immigration laws with no 
consideration whatsoever or concern at the border with regard 
to customs enforcement. And so there would not have been any--
because you would have had an immigration entity and you would 
have had a customs entity and there would have been no 
misunderstanding about what they were supposed to be doing at 
the border vis-a-vis the interior of the country. It seems to 
me they worked perfectly. It just so happens that because they 
have different missions within Customs and they are separated 
from each other as a result of the Administration's plan, that 
that is what caused the problem. The structural problem gave 
birth to the management problem, that if we in fact had an 
immigration enforcement entity, once again not concerned with 
customs, and a customs entity that could coordinate everything 
from overseas to the border to the interior of the United 
States, that we wouldn't have had that problem whatsoever.
    Mr. Stana. Let me clarify, the individual who was trying to 
stop the drugs at the border was a Border Patrol agent who came 
from legacy INS and immigration. This particular example 
wouldn't be the best case of that. It might be useful to talk 
about----
    Mr. Hostettler. Border Patrol or ICE? They both have 
customs.
    Mr. Stana. Oh, no. In the mid to late 1990's, I remember 
being on night operations outside of El Paso and the Border 
Patrol there was routinely picking up people with packages of 
drugs. It's not that that is just a Customs function. It was 
also an immigration/Border Patrol function to interdict drugs 
in that manner.
    Mr. Hostettler. But because they were violating immigration 
laws, correct?
    Mr. Stana. They were crossing the borders and violating 
immigration laws but also happened to be carrying a package.
    Mr. Hostettler. I will grant you that when you are 
enforcing immigration law and there is a weapon of mass 
destruction you won't turn your head to that, or drugs or 
whatever, but that was ancillary to the enforcement of the 
immigration laws. And I don't--I can't see how it can be 
suggested that with dual missions, that an agent is going to 
say okay, today do I enforce the customs law with regard to 
this particular sting operation, I'm not sure.
    And I'll turn to Mr. Bonner and Mr. Cutler. Am I thinking 
too simply about this situation where if we call on individuals 
to enforce the immigration law that there will not be this 
confusion as to what hat the agent should be wearing or the 
inspector or agent should be wearing with regard to what law to 
enforce and what mission to fulfill? Am I right or am I wrong 
on that?
    Mr. Bonner. Beyond that, Mr. Chairman, what happens when 
you have a single entity where the Border Patrol used to have 
its own investigative branch called the anti-smuggling unit. We 
would work hand and glove with those agents, and when they had 
a controlled load that they did not want us to intercept at the 
border or at one of our traffic checkpoints they would clearly 
communicate that to us and say ``let this one go. You are going 
to see this type of car coming through, just wave it on 
through,'' and we would do that and they would be able to 
follow through. But that level of cooperation and coordination 
just does not exist any more because ICE and CBP are in 
different chains of command. So when you go and say, ``we need 
some help here,'' they say ``what's in it for me?'' And you 
have nothing to offer them.
    Mr. Cutler. Mr. Chairman, a couple of weeks ago I testified 
before the Homeland Security Committee about the issue of 
separate CBP and separate ICE, and what I said then is what 
I'll say today. We have created a bureaucratic boundary between 
the two agencies that are supposed to reinforce our Nation's 
border. They need to work under one roof with coordination so 
there is no foul-up where one hand doesn't know what the other 
hand is doing.
    And I want to make reference to something. I have asked 
that your folks prepare a map. It's back up with additional 
fatalities that we didn't list the last time. That's the map of 
all the people who perished on 9/11, including the people 
killed at the Pentagon and in Pennsylvania. My request to you 
as I had mentioned last time, I would greatly appreciate it. I 
believe the folks that have been working with it, the 9/11 
Families for a Secure America, would appreciate having it put 
on permanent display as a memorial to the people who were 
killed and as a reminder to our elected representatives that it 
was the entire Nation that was attacked on that day.
    The other visual that I wanted you to have is a stack of 
books and it not nearly a complete law library. These are all 
the books or part of the books that constitute the laws being 
enforced by Customs as well as Immigration, and we can add to 
that court decisions. And if we did all of that, you would need 
a bookcase. There are far too many laws with far too much 
complexity and far too much writing on the proper adjudication, 
Administration and enforcement of those laws to allow one 
person to try to become the expert on all of this.
    Representative Jackson Lee alluded to the fact that I was 
injured in the line of duty. I wound up needing knee surgery. 
Today it is not enough you go to a surgeon, you go to an 
orthopedic surgeon. And it's not enough you go to an orthopedic 
surgeon, you go to an orthopedic surgeon who is experienced in 
knee surgery. If it works in the medical field, I think we need 
to see it the same way in law enforcement.
    We need to know that the people who take the lead in doing 
immigration law enforcement are people who are oriented to 
doing a thorough, effective job where they can stay up to speed 
on everything from documents, if we get the training that they 
desperately, desperately need; that they understand the impact 
of what they're doing. They can work in conjunction with other 
people.
    I was part of the Drug Task Force for about a decade. We 
worked closely with the FBI, DEA and ATF. It was a team effort. 
We all went out on the same surveillances. But as soon as we 
did our dynamic entry, as soon as the door came down and we did 
the arrests, DEA was concerned with seizing the narcotics, I 
was concerned with seizing documents and so forth.
    We need to work that way today. We have to have 
specialists. This isn't the one-size-fits-all that's going to 
work. We need people that really and truly are kept up to speed 
on immigration law. You know as Chairman of the Subcommittee, 
this law evolves on a continuous basis. The only way to have 
people who are well versed and understand the implications of 
what they're doing is to have people dedicated to immigration 
enforcement, and I can't emphasize that enough. It would be a 
tremendous asset for the entire law enforcement community if it 
was done that way.
    Mr. Hostettler. The Chair recognizes the gentleman from 
Iowa, Mr. King.
    Mr. King. Thank you, Mr. Chairman. Sitting here listening 
to this testimony, I began to cast my mind across this country 
and think what it must have been like when we enforced our 
immigration laws, when there wasn't a safe harbor neighborhood 
and an enclave for an immigrant to go to and how difficult it 
might have been to plan to go to a nation where you didn't have 
somebody open the door for you at the border, at the enclave 
all the way through the pipeline. And maybe we have 8 million, 
10 million, 12 million. I, in fact, believe there are more than 
12 million illegals in this country today. We are talking about 
OTMs as part of this equation and trying to focus more on OTMs 
than Ms. We are talking about how ICE has a conflicting mission 
and the price of that has been the ``I'' so that we can focus 
our resources from immigration enforcement to customs 
enforcement; how it is a split duty on our borders as well with 
our Border Patrol.
    I look at this thing from this broad perspective and it 
would be this, that--and I'm going to direct my first question 
to Mr. Bonner, but if we could somehow wave this magic wand, 
and I don't mean back up to where we were before, but if we 
could enforce effectively our immigration laws successfully at 
our borders and domestically, internally, if we could somehow 
get to this point where we could approach 100 percent 
effectiveness in our enforcing immigration, how much easier 
then might it be to address the customs issue and the terrorist 
issue? And in fact, I would make it more specific and that 
would be of the terrorists that we know in this country and we 
have some history with. If we had been successful in enforcing 
our immigration laws would any of those terrorists be in our 
country today and, if so, under what circumstances? Mr. Bonner 
first.
    Mr. Bonner. I believe that if we were able to effectively 
deter people from coming into the country, those who are coming 
for economic reasons, otherwise law abiding, which isn't to say 
that breaking our immigration laws is some peccadillo, it is a 
violation, but leaving that aside, taking those people out of 
the equation would allow Border Patrol, immigration inspectors, 
and criminal investigators to focus on the criminals and the 
terrorists, who are a very small percentage and would make it 
very easy to identify those people coming across the border, my 
guess is they would stop trying, by and large, coming in 
illegally because they would stick out like a sore thumb. And 
they would try to blend into the ports-of-entry where with 
increased resources I believe that we could be very successful 
in keeping those people out of the country. And as we go along, 
we are taking steps, the Congress is taking steps to crack down 
on document fraud so that it is harder to get a visa to come 
into the country. And we need to continue those efforts, but I 
believe working synergistically between all of these elements, 
we actually could not only control illegal immigration, but we 
could make this country much, much safer.
    Just look at it now. With millions of people coming across 
the border illegally every year, even if it is a one in a 
million shot, you have to figure three or four terrorists come 
in every year just from the sheer numbers of people coming in, 
and that is a scary thought because it only took 19 people to 
carry out the attacks of 9/11.
    Mr. King. I have made the statement in the past that I 
believe the effect of our policy results in a catch and release 
program of maybe as many as six times or even more times before 
we adjudicate for deportation. Those are resources of officers 
that are doing what I call in my business the equivalent of 
digging a hole and filling it back up again with the level of 
productivity that we get out of that. So maybe we are using 
one-sixth of our enforcement officers or one-seventh of our 
enforcement officers, their time, their money, taxpayers' money 
and the resources.
    How much more effective could we be if we could adjudicate 
and had the ability to process it first time as opposed to the 
sixth or seventh time that we pick them up?
    Mr. Bonner. That is part of the solution. I think the 
single most important thing we can do is to turn off the jobs 
magnet because that is why most of the people are coming in 
here in the first place, and the employers are the only ones 
who have anything to lose in this whole equation. A person who 
is making $4 a day, even if you had the bed space and money to 
incarcerate them, you would be doing them a favor because they 
are not getting three square meals a day now and in some cases 
they don't have a warm place to sleep at night and you would be 
providing that for them.
    I think a much more effective use of the resources is to go 
after the employers. Make it simple for them to figure out who 
has a right to work in this country, and if they choose to 
ignore that law take out a big club and hit them hard with it.
    Mr. King. What do you think about the effect of eliminating 
the Federal deductibility for wages and benefits paid to 
illegals if we have a safe harbor for the instant check program 
on the I-9 information and sent the IRS in to do an audit and 
be able to collect the taxes that would be due on that Schedule 
C line item as well as the interest and the penalty?
    Mr. Bonner. I think that is an interesting concept. I think 
H.R. 98, I think that is the real solution of saying look, it 
is illegal. We have given you a way to figure out if this 
person is in this country legally or not and send out 
enforcement officers to enforce that law and put those 
companies out of business, $50,000 fine per illegal alien per 
violation. That is a strong message and needs to be sent to the 
employers and you would get compliance much the same way as we 
have compliance with the Tax Code now. People are honest on 
their taxes because they fear the negative consequences of 
cheating on their taxes. A few high profile cases every year 
causes the rest of the country to fall into line, and that is 
how you could enforce employer sanctions.
    Mr. King. Could I ask unanimous consent to allow Mr. Cutler 
to answer that question?
    Mr. Hostettler. Without objection.
    Mr. Cutler. I agree with what you want to do with the tax 
law. I think it's a great idea. Again, and I hate to keep 
harping on it, that is why fraud is so critical because the 
Gordian knot that would enable an alien to circumvent all of 
this is to get a green card based on a fraudulent marriage, for 
argument's sake. Then he could work and the employer doesn't 
have a problem and he is here and hiding in plain sight. That 
is why we need to see all of these issues addressed properly.
    I never heard anyone talk much about immigration benefit 
fraud. The GAO in 2002, February, 2002 issued a report that 
said it was rampant and pervasive, and that is how the bad guys 
get to hide in plain sight. There are simple solutions to some 
of these problems. I don't know if you realize this, but when 
an alien naturalizes he or she can take any name on the day of 
naturalization that he wants.
    If we didn't know that, for example, Osama bin Laden was a 
terrorist, he could naturalize and say, you know, John Smith is 
a great American name. I want to be known as John Smith. From 
that day forward he becomes John Smith and his U.S. passport 
will only have the name John Smith on it. If he is wanted in 
Germany for mass murder or France for mass murder, he walks in 
with a U.S. passport that says he is John Smith, he will be 
able to slip right through.
    We need to look at that and say if we naturalize somebody 
we need to put all of the names that that person was known by 
on their passport. If an alien applies for a benefit from 
Immigration, they should fill out a questionnaire just like 
they do when they become a resident. Have you ever been 
arrested or have you ever committed a crime, have you ever 
trafficked in drugs, have you ever contributed money to a 
terrorist organization? If they say yes, they are deportable. 
If they say no and it can be proved they have lied, you can 
prosecute them.
    This doesn't cost anything. We need to get smart in what we 
are doing. Not only a matter of money, but a matter of 
strategy. Strategy will take leadership and take people at the 
top who understand how the law can be used effectively and then 
we can really help to make America a much safer country.
    Mr. Hostettler. The Chair recognizes the gentlelady from 
Texas, Ms. Jackson Lee.
    Ms. Jackson Lee. Thank you. Mr. Bonner, we posed a line of 
questioning to Mr. Stana who focused, without giving a grade to 
the DHS and without critiquing staff and your offices that work 
hard every day, this whole idea of management problems. If we 
were to begin to focus hearing after hearing, it doesn't answer 
the concern. And I still have in the backdrop of this problem, 
the lack of management definitions, if you will, the 
overlapping responsibilities, inconsistent program 
implementation, and I don't know whether it is ineffective use 
of resources, but I think you noted not enough funding to allow 
a number of functions to occur, detention, number of beds. By 
the way, I'm not sure if you are aware of the legislation on 
the floor that added 1,000 beds. I can't tell you what the 
distribution is, but 1,000 beds are supposed to be added 
shortly to detention facilities around the Nation. What do you 
say about focusing on trying to get the definitions defined, 
get management's responsibilities defined, get management's 
training, if you will, more efficient and more effective to 
begin, then for it to trickle down to those who are actually 
implementing those tasks?
    Mr. Bonner. I think the biggest part of the problem is you 
get managers at the highest levels who are just going to go 
along with whatever the Administration requests. So if the 
Administration says, ``we know that the law says 2,000 Border 
Patrol agents for the upcoming year but this is going to be our 
request and you are going to defend that,'' and they do defend 
it. We need to have managers who will stand up and say, ``If 
you want the job done this is what it's going to take. It's 
going to take 10,000 this year, not 200. And if you want to 
just pretend that we can make do with 200, fine, but I'm not 
your person.'' That is the type of leadership we need in this 
department, and we don't see it in the Department of Homeland 
Security, which is not unique within the Federal Government. 
It's very much the norm that these managers say ``okay, this is 
how it's going to be.''
    One of the most frustrating things for the rank and file is 
when Members of Congress go down to tour the border and 
managers will put extra officers on duty and have the best 
vehicles out there. I say show it to them the way it is so they 
can see what a shamble the infrastructure is and how few people 
are out there at any given time so they can say, ``my gosh, 
what is going on here? We need reenforcements down here,'' not, 
``everything looks pretty good. Everything is covered and you 
have the latest equipment.'' What they have done is they 
amassed everything in that one area where Members of Congress 
were going to be.
    That really does not benefit the American public. The 
American public deserves to be protected. They deserve the very 
best protection that we can afford and that requires the 
honest, unvarnished truth being told to those who are making 
these decisions in the halls of Congress.
    Ms. Jackson Lee. I hope that when I visited they didn't put 
too many overlapping good equipment in front of my eyes. And 
you are absolutely right. And I assume you're right, because we 
wouldn't have minutemen at the borders in Arizona getting ready 
to move to California and New Mexico and Texas.
    Mr. Bonner. It's what the rank and file call a ``dog and 
pony'' show and you saw a dog and pony show.
    Ms. Jackson Lee. You highlighted the problem with the chain 
of command, and at the same time the chain of command has to be 
sufficiently trained separate and apart from whether they adopt 
the Administration's position. Maybe that is where Congress 
comes in to realize that where the rubber hits the road, you 
have to go for the 2,000 or 10,000.
    I'm trying to focus in on the management training or trying 
to give at least some definition. Let me use some action item 
that occurred. I understand that there was a watch list of 
about 200 or 300 Muslims that someone devised that are utilized 
at the border and it's supposed to help make us secure. I mean 
is that some decision that came because the boots on the ground 
said this was a good thing to do? Did it come from management? 
Can you utilize that? Is it an effective system? These are 
management decisions that the question is whether or not it 
translates. Is that an effective use of your time? Maybe your 
time should be drawn elsewhere as opposed to a list that just 
sits there that may not be accurate.
    And as you answer that question, let me pose a question to 
Mr. Cutler, Mr. Chairman, and ask him--I am going to ask Mr. 
Bonner to answer that, but I'm going to ask him to hit it on 
the nail. Would a restructuring of ICE and the Border Patrol 
put in a separate enforcement agency work from that 
perspective? The watch list that was devised, I think you 
utilize a number of Muslim men on the list. Where did that 
decision come from? And I pointed out as an example of how is 
management working to give you your assignments and do we need 
to go where Mr. Stana is focusing? Can we get some order and 
defined responsibilities and defined tasks that will be a 
guiding mark for you?
    Mr. Bonner. Well, the watch list is fairly useless because 
it is just a name, and unless the terrorist is going to give 
you their true name or be carrying a passport, which neither 
one of those is true, they are just going to make up a name and 
you look at the list and say, ``well, this name is not on it.'' 
It is a waste of time. There has to be a better way, some type 
of biometric. And I realize that most of these terrorists do 
not have criminal records, but there must be some way.
    As Mr. Cutler said, if we can put a man on the moon, we can 
devise technologies to help us out and give us a little bit of 
an edge against the bad guys.
    Ms. Jackson Lee. That helps you get the bad guys versus the 
names on the list that are just ordinary Joes that get their 
names on the list or have the same name that tie up your time 
and of course offend, embarrass or put in a terrible position 
those who have nothing to do with terrorism. So you are not 
given the tools necessary, a management decision to have the 
list but not the tools.
    Mr. Cutler.
    Mr. Cutler. Well, I know you asked me about management. 
This is why I would like to see biometrics linked to driver's 
licenses so people don't have multiple driver's licenses and 
multiple names. I've often said that when a good guy gets up in 
the morning, he goes through his stuff to see what he wants to 
wear. When a bad guy goes through his stuff, he figures out who 
he wants to be. Very often they can get past no-fly lists and 
everything else.
    It is a real problem of identifying people, and it is an 
issue that I raised when I did my first congressional hearing 
back in 1997.
    As far as the question you asked me about putting everyone 
under one roof, I think it would be much more effective. I 
think you will have a clearer focus. You have clear 
accountability. It wouldn't be as diffused as it is. I would 
certainly come down on the side of one law enforcement agency 
that focuses on immigration. They should work closely with 
Customs. They should work closely with DEA.
    I have done this as a member of the task force. I had a 
desk at the FBI for a year and-a-half and had a desk at DEA for 
about 7 or 8 years. It was easy to work with each other. We 
brought to bear our particular authorities and our resources 
and our orientation and expertise. I would look at somebody 
from an immigration perspective that DEA was looking at from a 
drug perspective. This helped us out during a terrorist 
investigation. We found a vehicle, actually DEA did. They were 
doing a drug case called Polar Cap. They found a car with bomb 
detonators in it. When I went to interview these folks, the 
Immigration angle never occurred to DEA. And I turned to the 
head of DEA in New York and said, ``Bob, these people are lying 
about the fact that they're house painters and construction 
workers.'' He said why? I said did you shake that man's hand. 
It's a smooth hand. He has manicured fingernails. My dad was a 
construction worker. He would crush your hand with his. Bob 
knew a lot more about drugs than I can ever learn. But as an 
Immigration agent, my first thought was this guy has manicured 
fingernails and no muscles in his hands. This guy was running 
the drug organization.
    So the point of it is we bring expertise to the table and 
Immigration needs to retain its expertise. It needs desperately 
to retain its institutional memory and we have to make the 
people in that business accountable and not diffuse their 
responsibilities so they can say gee, someone else came up with 
this. No, if you make a decision, you need to be held 
accountable.
    Ms. Jackson Lee. Would you lodge that unified entity inside 
the Department of Homeland Security?
    Mr. Cutler. That is a rough call. As long as it was an 
entity that was clearly definable as the Immigration 
Enforcement Bureau, it wouldn't matter if it was under the 
Department of Justice or Homeland Security, that's fine. I want 
to see an entity that is dedicated to the enforcement and 
administration of the immigration laws so we know that there is 
accountability, continuity.
    Training is an ongoing process. Since they moved these 
folks out of the INS, as I mentioned during my testimony, they 
are not getting language training. How do you investigate 
people that you can't communicate with? Right now, if you want 
to make an Immigration agent go away, the magic words aren't 
``abracadabra,'' it is ``No hablo Ingles.''
    Eighty percent of the illegal alien population speaks 
Spanish. How can they conduct an investigation when all the guy 
has to do is say ``No hablo Ingles?'' I will tell you my own 
experience is that people will say to you and then you look at 
the guy and ``No hablo Ingles? Espanol, senor?'' and the guy 
did speak English after all. If you have the idea by saying 
that you can make that guy go away, I guess you are going to 
have people who don't even speak Spanish saying, ``No hablo 
Ingles.'' It is not a good situation. It's a matter of 
training, accountability, and we need a strategy.
    I'm alarmed that 3\1/2\ years after 9/11, there still is no 
clear strategy or idea of mission to protect the United States. 
Imagine, if we fought World War II this way there would be a 
different flag flying over the Capitol today. It worries me, 
and I think it should worry all of us. We needed to hit the 
ground running and we are not moving at all. We are stuck in 
wet cement, and that is not a good situation.
    Ms. Jackson Lee. I will conclude simply by saying this, a 
couple of weeks ago we were having a hearing in Homeland 
Security and I made the point--I continue to make the point of 
whether or not we have created too large an entity in the 
Department of Homeland Security with 180,000 employees, not in 
any way to disregard the hard service, dedication and 
commitment of these employees, from TSA to any number of 
entities, but there lies--I think partly beyond the 1997 report 
with INS, but there lies part of the difficulty in having clear 
lines of responsibility, knowing what you are supposed to be 
doing, having an integrated system, and I think there are some 
alarms being set off today, some red flags that have been set 
off hearing after hearing after hearing, and there is going to 
be a moment where we have to turn inward and address these 
questions because some would say, without overly creating a 
great deal of hysteria, that we are on borrowed time, and I 
think it's crucial we get our house in order and these 
gentlemen and lady have allowed us to do so.
    Are you leaving in or taking out Customs?
    Mr. Cutler. I would have Customs separate and apart from 
that immigration chain. They can work together as a task force. 
Maybe it would be useful to share their legal authority, but 
you want core people that do immigration, that are experts in 
immigration, that this is their day-to-day job, and Customs 
could do their own thing. You know, I want you to know, the 
biggest threat we have are people coming into the country more 
than things coming into the country. For a terrorist to bring a 
weapon into the United States, it is a real concern and we 
should be screening the containers. But it is kind of like 
bringing sand to a beach. If we look at the prior attacks, we 
have never seen an attack committed on our soil that involved a 
device brought into our country from overseas. God forbid, it 
could happen tomorrow. I'm not saying that it's foolproof that 
won't.
    But the interesting thing for me was that Richard Reid had 
a shoe bomb. Now we go on board the airplanes and we wear 
loafers because we know we have to take our shoes off, but no 
one looked at the fact and nobody has done anything about the 
fact that he was eligible to enter under the visa waiver 
program.
    We have to look at the areas of vulnerability, assess the 
areas of vulnerability and lead the target. We can't keep 
playing catchup with the bad guys. I gave you some suggestions 
about the use of passports and showing all the identities on 
passports. We need to be at least as creative as they are.
    Please remember one thing, we have to be right 100 percent 
of the time, they only have to get it right once to do a hell 
of a job on us, and that is why this is so critical.
    Mr. Hostettler. The Chair recognizes the gentleman from 
Virginia, Mr. Goodlatte.
    Mr. Goodlatte. Mr. Chairman, thank you very much for 
holding this hearing. I find this topic of great interest. I 
appreciate the gentlewoman from Texas' questions and sorry I 
missed the testimony of the panel because I was elsewhere 
earlier, but it's a matter of grave concern to me and I want to 
add an additional complicating factor to this.
    I'm the Chairman of the House Committee on Agriculture and 
this is not a dual mission that has been put under the one face 
at the border program. It is a--I don't know what you call it--
a triple mission because you have also taken over the 
responsibility for the Plant and Health Inspection Service. 
This is a role that has been supervised by the Department of 
Agriculture for a great many years. It is a serious problem for 
our country.
    I agree with Mr. Cutler that somebody coming in and doing 
damages are our highest level of concern, but we do billions 
and billions of dollars a year worth of damage in this country 
not from, usually, intentionally bringing things into the 
country but the unintentional admission into the country of 
various pests, animal, plants, various diseases, fungicides. 
That requires an extraordinary level of expertise to spot. And 
we are just not talking about looking at agricultural products 
coming into the country, but talking about all kinds of other 
containers that an insect or hoof and mouth disease may have 
gotten into.
    And the Department over many, many years built up a very, 
very strong force of expertise with veterinarians and people 
with advanced degrees in biological sciences and so on. These 
people can play a very important role in keeping out a 
deliberate attempt to bring some kind of a bioterrorism type of 
attack. But most of the work they have always done, an 
overwhelming portion, is making sure things don't accidentally 
enter the country and cause huge amounts of damage.
    We know all types of invasive types of species we have in 
the country as a result of our not being able to do this very 
effectively. My concern is it has gotten a whole lot worse, 
because no longer do you have this separate identity, this 
cadre of people with a pride in what they are doing and 
utilizing their specific background, but now we are asking 
people who have responsibilities for immigration work, or who 
have responsibilities for other types of Customs work to also 
have some at least rudimentary knowledge of what to be looking 
for when some handicraft comes into the country and it might be 
a banned species or might contain something that is a problem.
    I'm concerned we are losing that expertise by combining 
these functions. The plan was to have more people with 
expertise at more ports around the country, and maybe that 
indeed is the case. But what I'm hearing is that we're losing 
that expertise and people no longer feel that they have that 
independence and the desire to have that expertise inspecting 
it.
    And I would like you to comment on this area and whether 
you know enough about it to make an observation, what you have 
seen at the border with regard to this responsibility.
    Mr. Stana. Can I start? I think it's a cause for concern. I 
think the way that concern is being addressed right now is that 
as long as the legacy individual has that expertise, whether 
it's Immigration, or whether it's Customs or whether it's food 
and agriculture enforcement, those people are being used in the 
primary and secondary areas of airports and land ports to take 
advantage of that expertise. So as long as those people are 
there and maintain the expertise from their old agencies, it's 
not as much of a problem. The worry is as those people retire 
or get shifted to other duties, they lose their edge.
    Mr. Goodlatte. Is there an ongoing effort being made to 
hire people of this caliber to replace them with these 
backgrounds in sciences and biological sciences and so on?
    Mr. Stana. I'm not sure of that. I'm sure that at the 
ports, what the port director has tried to do is to take 
advantage of what expertise is available. For example, in 
secondary for immigration issues, they will put people from 
legacy INS because they know the law well enough. Similarly in 
secondary where they may pull a car over at a land port and 
tear it apart looking for contraband, it tends to be legacy 
Customs people and that's because they know the business. The 
concern is how much longer are those people who know that 
business going to be around and are the training courses at 
FLETC suitable to get people up to speed in the variety of 
areas that they have to make our one face at the border work.
    Other members of the panel and I would echo that and point 
out that learning immigration law, let alone customs law and 
the knowledge of thousands of plants and food stuffs, and 
understanding the nuances and the different turns that each 
would take--to understand those three areas, for one 
individual, it would be a formidable task.
    Mr. Goodlatte. Thank you. Ms. Kephart.
    Ms. Kephart. I think this plays into Ranking Member Jackson 
Lee's question about is the DHS too large, because I think we 
are losing questions like this because DHS is so big and there 
are so many questions. The merger--I want to clarify something 
I said earlier about the merger of Customs and Immigration and 
Agriculture at the ports-of-entry. I think for supervisory 
purposes there needs to be efficiency there and there needs to 
be cross training for management purposes. However, it's always 
been my feeling that the expertise that is required for 
Agriculture and Customs and Immigration is so detailed, there 
is so much to know in such a short amount of time for such 
short inspections that you must absolutely maintain that 
expertise. And while I was on the Commission, the last inklings 
I was hearing from CBP and from FLETC that there was complete 
homogenation taking place at CBP in terms of that training, and 
that to me was a great concern.
    Mr. Goodlatte. I share that concern. Mr. Bonner.
    Mr. Bonner. I think you touched upon a real area of 
concern. These agriculture inspectors used to require degrees 
and immigration inspectors would receive 16 weeks of training. 
Customs inspectors, I believe it was about 14 weeks of 
training. They have condensed all of that down to 11 weeks of 
training. And you are simply not going to hit on anything but 
the real high points. So what happens is these newly trained 
inspectors are keying in on indicators of nervousness. Well, if 
you don't know that you are bringing something into the country 
that is harmful, such as the wrong type of fruit, you are not 
going to be nervous at all.
    I can recall pulling up to the California State agriculture 
inspection one time and they asked me, ``are you bringing in 
any fruits or vegetables?'' and I said ``no.'' ``What's that 
under the seat next to you?'' And it was an orange and I said 
``oops, I didn't think of it.'' I wasn't nervous because it was 
an orange to me and did not equate. But that's the type of 
thing that you are dealing with. You need those specialized 
degrees in order to know what you're doing when you are dealing 
with agriculture, and that has gone by the wayside, which is a 
very big concern.
    Mr. Cutler. I think you have hit on a real critical issue 
adding agriculture to the mix. Again, we are spending less time 
training these people trying to give them greater knowledge and 
it's not working. I think this is a prescription for disaster. 
I'm fearful of where this is going to lead us ultimately.
    Mr. Goodlatte. Thank you, Mr. Chairman, and thank you for 
letting me run over time.
    Mr. Hostettler. I recognize the gentleman from California, 
Mr. Lungren.
    Mr. Lungren. Thank you very much, Mr. Chairman. I'm sorry I 
was not here for the prepared testimony, but I will look that 
over.
    I don't know where to start. I want to make sure this is 
not the concern that any legacy agency would have when we try 
to bring them together. If I believed that we had done a super 
job before we brought DHS together, I would be far more 
convinced by what I hear here today, but I don't know anyone 
who says we did a bang-up job beforehand. And is it really the 
problem that we have this consolidation and are asking people 
to do too much? Or is it that we don't have enough people, 
period, or don't have enough commitment, period? I mean, I'm 
happy to look at everything. For us to go off chasing the idea 
that the real problem is that we have--look, while I respect 
what they have to do, this is not rocket science. You can train 
people in various capacities if you put the effort in, if you 
get the qualified people and if we really put the money behind 
it. And my concern is that we may think that is the problem as 
we try to consolidate these various operations, when the 
problem is we haven't put enough money and manpower behind it--
that we just haven't made a large enough commitment.
    So, Mr. Bonner, are you suggesting to me that really if we 
went back to the old days when we were separated out and put 
more bodies there then that would have a significant impact?
    Mr. Bonner. I think it would have a significant impact if 
you allowed these agents to specialize in one field, such as 
immigration. I think it's a mistake to expect so much of people 
and you're probably right. You could probably intercept 98 
percent of what's coming across if you train people very well, 
but 98 percent is not good enough when you are dealing with 
terrorism because, as Mr. Cutler pointed out, they only have to 
be right once in order to inflict incredible damage and we have 
to be right 100 percent of the time to screen the people out of 
this country who should not be getting into this country.
    Mr. Lungren. We also want to screen out things that we 
don't want in this country as well.
    Mr. Bonner. Absolutely, and expecting one person to be an 
expert in all of these fields is asking too much. What you are 
going to end up with are jacks of all trades, but masters of 
none.
    Mr. Lungren. Is it more important that we enforce employer 
sanctions or that we be concerned with dividing up these 
responsibilities?
    Mr. Bonner. I don't think you are going to look at it as 
either/or, I think you have to do both. I think employer 
sanctions is a very key part of enforcing the immigration laws.
    Mr. Lungren. What would have a greater impact?
    Mr. Bonner. I think the greater impact would be if you 
could honestly enforce employer sanctions. If you could remove 
98 percent of the people from the equation who are coming 
across our borders illegally, I think that would have a huge 
impact, but I think the other is also important.
    Mr. Lungren. And I have always been concerned that we 
haven't focused on that part, that 98 percent or whatever the 
percent of people coming here seeking jobs. The magnet is jobs. 
How do you affect that? You go to where the jobs are, which is 
employer sanctions. I'm convinced we are never going to have an 
employer sanction program that people will support unless we 
have a workable guest worker program. That is just my thought, 
and I think we need to focus on that. We make the job that much 
more difficult for people at the border to the extent that we 
have not controlled the tremendous magnet that attracts people 
here, which is jobs. And to the extent that we don't do that, 
we just make the haystack bigger. If you are looking for the 
needle in the haystack, we have created larger haystacks and a 
greater number of haystacks, which makes the job difficult if 
not impossible.
    Mr. Bonner. No argument from me on that point.
    Mr. Lungren. I heard some people suggest that we have made 
DHS too big. Do you really think that's the problem?
    Mr. Bonner. I don't know that it's the size of the agency 
as much as it is the mission and how we have broken it up; the 
structure that allows people to go out and do the job that they 
were hired to do.
    Mr. Lungren. Let me ask another way. It was my observation 
10 years ago here and while I was Attorney General of the State 
of California that the INS, while it was in the Justice 
Department, never was looked upon as the gifted child.
    Mr. Bonner. Being with the INS for the better part of my 
adult life, I concur with that. We were the red headed 
stepchild.
    Mr. Lungren. So I am not willing at this point to say that 
it's because it's over there at DHS and they are too large, 
that that's what the problem is. Unless we focus on the mission 
of immigration, unless we focus on the mission of protecting 
our borders, unless we make that a priority, it doesn't matter 
where it sits, the job is not going to get done.
    Mr. Hostettler. I thank the gentlemen. At this time, the 
questions from the panel have concluded. I want to thank the 
witnesses for your appearance here, your contribution to the 
record as we deal with this and many other very important 
issues.
    All Members are reminded that they have 5 legislative days 
to add to the record and that if there are any questions for 
Members, additional questions for members of the panel, that we 
would ask members of the panel to return a response within 3 
weeks.
    Ms. Jackson Lee. Would the gentleman yield? I thank the 
Chairman very much. As the DHS has a multiple number of 
jurisdictions and responsibilities, so does Congress, and the 
Homeland Security Committee has the greater jurisdiction on the 
question of management and change. However, I'm going to speak 
with our Chairman at least to possibly draft a letter, since I 
sit on both Committees, to be able to put this hearing in focus 
because I think what we were able to learn today is very 
helpful, and the more voices that can be raised about the 
concerns expressed by Mr. Stana, Mr. Bonner, Mr. Cutler and to 
a certain extent Ms. Kephart and her work on the 9/11 
Commission, the more closely we will get in solving the problem 
in securing America, but more importantly understanding 
immigration and its functions or at least the need to 
distinguish the responsibilities of enforcing immigration laws 
from, of course, the responsibility of making sure that we 
collectively fight the war on terror.
    So, Mr. Chairman, I hope that we will have an opportunity 
to at least put this hearing in focus and to share it so that 
this problem can be involved.
    Mr. Hostettler. Look forward to working with the 
gentlelady, and with regard to those priorities, I can tell you 
that it is the desire of this Subcommittee that we prioritize 
the enforcement of our immigration laws. And I understand that 
Homeland Security Committee has a lot of priorities and that 
may be a different issue for you and on that Committee and the 
Chairman of that Committee, but I look forward to working with 
you on this because I think we have learned today that a whole 
host of issues are contributing to the fact that we are not 
adequately enforcing our immigration laws. That goes without 
saying in my 2\1/4\ years of my being Chairman of this 
Subcommittee, but there seems to be a host of issues conspiring 
for that to happen, and to the extent that this Subcommittee 
can be helpful in ironing out those differences and reiterating 
the priority of immigration enforcement, I look forward to 
working with the gentlelady.
    The work before this Subcommittee having been completed, we 
are adjourned.
    [Whereupon, at 4:35 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

  Prepared Statement of Eugene R. Davis, Retired Deputy Chief Patrol 
Agent, U.S. Immigration and Naturalization Service, U.S. Border Patrol 
                Agent, Blaine Sector, Blaine, Washington

    REGARDING ``THE NEW DUAL MISSIONS OF THE IMMIGRATION ENFORCMENT 
                               AGENCIES"

    Mr. Chairman and members of the subcommittee my name is Eugene R. 
Davis. I am retired Deputy Chief Border Patrol Agent. I retired in 
January of 2000 after having spent 29 years with legacy INS. I spent 23 
years on my career along the northern border in Northwest Washington 
State. During those years Agents operating in the Blaine Sector under 
my jurisdiction were successful in arresting two known terrorists that 
entered the United States from Canada. Abu Mezer was arrested on 
multiple times in 1996 and 1997 and Ahmed Ressam was arrested in 1999. 
In April of 1999 I testified before your subcommittee and as part of 
that testimony I warned members of the terrorist threat that existed in 
Canada.
    In 1996 I was one of local management officials that helped pioneer 
the concept of the Integrated Border Enforcement Teams (IBET). This 
innovative program established international cooperation between 
agencies along both sides of our international border with Canada. 
After the attacks of 9/11 multiple IBET teams were established along 
the entire U.S./Canada border based on the Blaine model.
    Since my retirement in 2000 I have remained very active in the area 
of border security and training. I am self employed as a private 
contractor. Over the last several years I have taught numerous courses 
to law enforcement personnel from both sides of the local border. The 
main emphasis of this training has had the goal of encouraging 
interagency and international cooperation.
    In addition to teaching local courses I have also traveled and 
taught courses on border security in foreign countries. My travels have 
taken me to West Africa and Central America. Most recently I spent a 
month in the fall of 2004 in Pakistan working with Pakistani Military 
Officers close to the Afghanistan Border. During this training mission 
I helped set up a training program to train new recruits in the 
Pakistan Frontier Corp.
    I feel that these experiences have given me a unique perspective. I 
have used this perspective as I have taught courses in Anti-terrorism 
to local senior border inspectors with DHS since my return from 
Pakistan.
    I am submitting this statement before your important committee to 
express grave concerns that I have about the present enforcement 
structure within the Department of Homeland Security.
    During the last decade that I worked for Legacy INS I became a 
strong advocate that the enforcement elements with the agency should be 
combined and split off of the service elements. I felt that there was a 
direct conflict of one agency trying to administer benefits and 
enforcement at the same time. I expressed this believe in written and 
spoken testimony before the U.S. Senate Select Committee on 
Investigations in November of 2001.
    It was my hope that when the Department of Homeland Security was 
organized that the enforcement divisions of INS which included the 
Border Patrol, Investigations, and Detention and Deportation would be 
combined. I felt that would form the nucleus from which a more 
effective enforcement platform could be established. Within this 
structure the Country would have benefited from the years of experience 
that each of these components would have brought to the mix.
    Congress chose not to pursue this course. Instead they completely 
dismantled the legacy INS enforcement structure and placed them into 
two separate entities. The Border Patrol was placed into the Bureau of 
Customs and Border Protection. Investigations and the Detention and 
Deportation section were made part of the Bureau of Immigration and 
Customs enforcement.
    This change has not only created havoc between the two agencies but 
competition as well. Removing the investigations element from the 
border patrol has the same effect that going to a major police 
department and taking away their detective force would have.
    You now have two major agencies within an agency operating close to 
the border that are enforcing immigration laws. It is almost impossible 
to determine who is in charge and who is responsible. When outside law 
enforcement agencies have a question they often get the run around.
    I believe that along the border there is less cooperation taking 
place and more confusion now between agencies than there was prior to 
9/11.
    Interior enforcement has also been adversely effected by this 
organization. The former Customs Service was already overwhelmed with 
enforcement missions prior to the re-organization. Adding Immigration 
enforcement to their responsibility is tasking them with an impossible 
mission.
    Interior Immigration enforcement prior to the re-organization was 
an impossible task for the old INS because of lack of resources and 
effective laws. It is my understanding that many of the present 
supervisors and upper management people under BICE are legacy Customs 
officers. They do not have the years of experience that it takes to 
understand the complexities of Immigration law. Many of them view 
immigration enforcement as a thankless and impossible mission.
    I would suggest in the strongest language that I can muster that 
this present organizational structure be re-examined. I would recommend 
that the Legacy INS enforcement components be brought back together 
under DHS. I believe if they are given the proper manpower, technology, 
most importantly new laws with strong enforcement provisions that they 
can accomplish their mission.
    Thank you for allowing me to submit this written statement to your 
important committee.

                              ----------                              

         Prepared Statement of Congresswoman Sheila Jackson Lee

    When the Bush Administration established the Department of Homeland 
Security (DHS) in 2003, it split up the U.S. Customs Service and the 
Bureau of Border Security and reconfigured them into two bureaus, the 
Bureau of Customs and Border Protection (CBP) and the Bureau of 
Immigration and Customs Enforcement (ICE). The basic responsibility of 
CBP is to prevent illegal persons and goods from crossing the border. 
ICE is responsible for tracking down these persons and goods if they 
get past CBP.
    This reorganization has resulted in some coordination problems. For 
instance, the training for daily border security operations is not 
working well. Supervisors from one legacy agency at a port-of-entry 
have not received the training to answer technical questions of 
inspectors from another legacy agency. Inspectors often are told just 
to do things the way they used to do them.
    Much of the information sharing that is occurring at the border is 
due to existing personal relationships among employees, not to formal 
systems for exchanging information. For example, legacy Customs 
employees still cannot access immigration databases. This means a 
legacy Customs inspector cannot work at an immigration secondary 
inspection point, which reduces the overall flexibility of the 
workforce the Department is striving for.
    Sometimes, to facilitate an investigation, ICE investigators want 
contraband to be allowed to pass through the border. This is known as, 
``a controlled delivery.'' While this is a legitimate investigatory 
method, it is contrary to CBP's mission, which is to prevent contraband 
from passing through the border. Consequently, ICE's use of controlled 
deliveries has created difficulties with CBP. ICE and CBP have formed a 
working group to develop a protocol for controlled deliveries that will 
resolve this conflict.
    Alien smuggling investigations have suffered too. In INS, alien 
smuggling cases traditionally arose from inspectors, border patrol 
agents, or adjudicators noticing patterns or trends. The dissolution of 
INS has cut the connections between the agents who investigate alien 
smuggling and the front line personnel. Also, fewer Customs 
investigations have been generated by leads from inspectors.
    To a great extent, however, CBP and ICE are suffering from the same 
management problems that INS had before DHS was created and the 
immigration enforcement functions were separated. In 1997, GAO reported 
that INS lacked clearly defined priorities and goals and that its 
organizational structure was fragmented both programmatically and 
geographically. Additionally, field managers had difficulty determining 
whom to coordinate with, when to coordinate, and how to communicate 
with one another because they were unclear about headquarters offices' 
responsibilities and authority. GAO also reported that INS had not 
adequately defined the roles of its two key enforcement programs, 
Border Patrol and investigations, which resulted in overlapping 
responsibilities, inconsistent program implementation, and ineffective 
use of resources. INS's poor communications led to weaknesses in 
policies and procedures.
    In 2004, GAO reported that CBP and ICE have many of the same 
management challenges that INS had. For example, in some areas related 
to investigative techniques and other operations, unresolved issues 
regarding roles and responsibilities give rise to disagreements and 
confusion. While initial steps have been taken to integrate the former 
immigration and customs investigators, such as establishing cross-
training and pay parity, additional important steps remained to be 
completed to fully integrate investigators.
    INS was a dysfunctional agency. When its enforcement 
responsibilities were taken over by DHS, they were divided between two 
new bureaus. The purpose of today's hearing is to decide whether the 
enforcement functions should be consolidated again. If the problem were 
just structural in nature, consolidation might make sense; but the 
problem is not just structural in nature. The bureaus still have 
serious management difficulties that need to be addressed. Our witness, 
Rich Stana, from GAO, will elaborate on the nature of these problems.
    Thank you.

                              ----------                              

            Prepared Statement of Congressman Elton Gallegly

    Thank you for holding this hearing, Mr. Chairman.
    The dual mission of Immigration and Customs Enforcement is 
troubling to me. It is troubling to me because I spent years, next to 
many who still sit on this subcommittee today, aggravated by the dual 
mission of the former INS. At the former INS, the ``service'' mission 
of the organization continually conflicted with the ``enforcement'' 
mission.
    Now, again, we find the immigration enforcement authority in the 
same pickle. Lumped into a dual mission organization with customs 
enforcement, interior enforcement is still lacking. If management is 
any indication, priority has been given to the customs functions.
    Increasingly large numbers of illegal immigrants are entering the 
country. By some estimates, they number more than a million a year. Why 
are they coming here? Many come for jobs. If there is no meaningful 
enforcement in the interior, the illegal immigration problem in this 
country will never get better, and may continue to get worse.
    I am interested to hear from the witnesses about the dual missions 
of Immigration and Customs Enforcement and about how these missions 
impede the effective enforcement of the law.
    I yield back my time.

                              ----------                              

  Map of ``9/11/2001 Deaths by State of Residence,'' submitted by Mr. 
                             Michael Cutler



                                 
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