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


 
                     CBP AND ICE: DOES THE CURRENT 
                  ORGANIZATIONAL STRUCTURE BEST SERVE 
                   U.S. HOMELAND SECURITY INTERESTS? 
                            PART II AND III 
=======================================================================
                                HEARING

                               before the

                      SUBCOMMITTEE ON MANAGEMENT,
                      INTERGRATION, AND OVERSIGHT

                                 of the

                     COMMITTEE ON HOMELAND SECURITY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                        FIRST AND SECOND SESSION

                               __________

                   NOVEMBER 15, 2005 and MAY 11, 2006

                               __________

                           Serial No. 109-57

                               __________

       Printed for the use of the Committee on Homeland Security
                                     
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                     COMMITTEE ON HOMELAND SECURITY



                   Peter T. King, New York, Chairman

Don Young, Alaska                    Bennie G. Thompson, Mississippi
Lamar S. Smith, Texas                Loretta Sanchez, California
Curt Weldon, Pennsylvania            Edward J. Markey, Massachusetts
Christopher Shays, Connecticut       Norman D. Dicks, Washington
John Linder, Georgia                 Jane Harman, California
Mark E. Souder, Indiana              Peter A. DeFazio, Oregon
Tom Davis, Virginia                  Nita M. Lowey, New York
Daniel E. Lungren, California        Eleanor Holmes Norton, District of 
Jim Gibbons, Nevada                  Columbia
Rob Simmons, Connecticut             Zoe Lofgren, California
Mike Rogers, Alabama                 Sheila Jackson-Lee, Texas
Stevan Pearce, New Mexico            Bill Pascrell, Jr., New Jersey
Katherine Harris, Florida            Donna M. Christensen, U.S. Virgin 
Bobby Jindal, Louisiana              Islands
Dave G. Reichert, Washington         Bob Etheridge, North Carolina
Michael McCaul, Texas                James R. Langevin, Rhode Island
Charlie Dent, Pennsylvania           Kendrick B. Meek, Florida
Ginny Brown-Waite, Florida

                                 ______

         Subcommittee on Management, Integration, and Oversight



                     Mike Rogers, Alabama, Chairman

John Linder, Georgia                 Kendrick B. Meek, Florida
Tom Davis, Virginia                  Edward J. Markey, Massachusetts
Katherine Harris, Florida            Zoe Lofgren, California
Dave G. Reichert, Washington         Sheila Jackson-Lee, Texas
Michael McCaul, Texas                Bill Pascrell, Jr., New Jersey
Peter T. King, New York (Ex          Bennie G. Thompson, Mississippi 
Officio)                             (Ex Officio)

                                  (II)


























                            C O N T E N T S

                              ----------                              
                                                                   Page

                               Statements

The Honorable Mike Rogers, a Representative in Congress From the 
  State of Alabama, and Chairman, Subcommittee on Management, 
  Integration, and Oversight.....................................     1
The Honorable Kendrick Meek, a Representative in Congress From 
  the State of Florida, and Ranking Member, Subcommittee on 
  Management, Integration, and Oversight.........................     2
The Honorable Sheila Jackson-Lee, a Representative in Congress 
  From the State of Texas:
  Oral Statement.................................................    36
  Prepared Statement.............................................    37
The Honorable Zoe Lofgren, a Representative in Congress From the 
  State California...............................................    33
The Honorable Michael T. McCaul, a Representative in Congress 
  From the State of Texas........................................    21
The Honorable Mike E. Souder, a Representative in Congress From 
  the State of Indiana:
  Oral Statement.................................................    19
  Prepared Statement, May 11, 2006...............................    43

                               Witnesses
                       Tuesday, November 15, 2005

Mr. Robert L. Ashbaugh, Assistant Inspector General for 
  Inspections and Special Reviews, Office of Inspector General, 
  Department of Homeland Security:
  Oral Statement.................................................     3
  Prepared Statement.............................................     5
The Honorable Stewart A. Baker, Assistant Secretary for Policy, 
  U.S. Department of Homeland Security:
  Oral Statement.................................................     9
  Prepared Statement.............................................    11

                         Thursday, May 11, 2006
                                Panel I

The Honorable Stewart A. Baker, Assistant Secretary for Policy, 
  U.S. Department of Homeland Security:
  Oral Statement.................................................    48
  Prepared Statement.............................................    49
The Honorable Julie L. Myers, Assistant Secretary, U.S. 
  Immigration and Customs Enforcement:
  Oral Statement.................................................    54
  Prepared Statement.............................................    56
Ms. Deborah J. Spero, Acting Commissioner, U.S. Customs and 
  Border Protection:
  Oral Statement.................................................    61
  Prepared Statement.............................................    63

                                Panel II

Mr. T.J. Bonner, President, National Border Patrol Council, 
  American Federation of Government Employees (AFL-CIO):
  Oral Statement.................................................    73
  Prepared Statement.............................................    75
Mr. Arthur Gordon, President, Federal Law Enforcement Officers 
  Association:
  Oral Statement.................................................    77
  Prepared Statement.............................................    78
Seth Stodder, Esquire, Akin Gump Strauss Hauer & Feld LLP:
  Oral Statement.................................................    80
  Prepared Statement.............................................    82

                                Appendix

Questions from Honorable Mike Rogers.............................    95
Questions from Honorable Bennie G. Thompson......................   102


                     CBP AND ICE: DOES THE CURRENT 
 ORGANIZATIONAL STRUCTURE BEST SERVE U.S. HOMELAND SECURITY INTERESTS?

                                PART II

                              ----------                              


                       Tuesday, November 15, 2005

             U.S. House of Representatives,
                    Committee on Homeland Security,
                                Subcommittee on Management,
                                Integration, and Oversight,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 2:03 p.m., in 
Room 311, Cannon House Office Building, Hon. Mike Rogers 
[chairman of the subcommittee] presiding.
    Present: Representatives Rogers, Souder, McCaul, Meek, 
Lofgren, and Jackson-Lee.
    Mr. Rogers. [Presiding.] This meeting of the Subcommittee 
on Management, Integration, and Oversight of the Committee on 
Homeland Security is called to order.
    We are holding the second hearing today to examine the 
current organizational structure within the Department of 
Homeland Security for two major agencies: U.S. Customs and 
Border Protection, referred to as CBP, which secures our 
borders and ports of entry; and U.S. Immigration and Customs 
Enforcement, referred to as ICE, which enforces our immigration 
and customs laws inside the United States.
    I would first like to welcome our distinguished witnesses 
and thank them for taking the time out of their busy schedules 
to be with us today.
    When the Department of Homeland Security was established in 
March 2003, it housed two new agencies which were designated 
CBP and ICE. Both of these agencies were composed of functions 
from the legacy U.S. Customs Service, the former Immigration 
and Naturalization Service, and other agencies. The original 
organization of the Department also included a new Border and 
Transportation Security Directorate, known as BTS. This office 
was responsible for overseeing and coordinating the activities 
of CBP and ICE.
    Since 2003, however, many concerns have been expressed 
about the ability of CBP and ICE to carry out their missions 
effectively as separate and distinct agencies. Some of these 
concerns were raised during our first hearing held in March, 
focusing primarily on coordination, communication, and 
financial issues. Various proposals have been made to address 
these problems, including the merger of CBP and ICE.
    In January, the Senate Homeland Security and Governmental 
Affairs Committee held a hearing during which the chairman and 
ranking member asked the Department's inspector general to 
assess whether or not there should be a merger of CBP and ICE. 
As part of this subcommittee's oversight role over the 
Department's organization, we also will examine the inspector 
general's assessment, which is being made public today.
    We are also pleased to have with us the Assistant Inspector 
General for Inspections and Special Reviews who will discuss 
the IG's merger endorsement. We also are pleased to have the 
new Assistant Secretary for Policy from the Department of 
Homeland Security in his first appearance before Congress since 
his confirmation. He will discuss Secretary Chertoff's decision 
to eliminate the BTS directorate, but not merge CBP and ICE.
    I once again want to thank the witnesses for joining us 
today for this important issue. I now will yield the floor to 
my friend and colleague from Florida, the ranking member, Mr. 
Meek, for any statement he may have.
    Mr. Meek. Thank you very much, Mr. Rogers.
    I want to thank our witnesses for coming before us. I am 
pleased to see Mr. Ashbaugh. I know that the inspector general 
and your office has been working very hard and not only doing 
outstanding work on monitoring contracts after Hurricane 
Katrina, but in so many other areas. I admire the dedication of 
your staff that you bring to oversight.
    I also have offered amendments and legislation to provide 
more funding and authority to the department inspector 
general's office, but I hope that the committee and the 
Congress recognize the need to act on these initiatives very 
soon, especially as it relates to some of the oversight issues 
in such a large agency.
    The report that we are considering today is another example 
of a thoughtful, thorough piece of work. If you turn on CNN any 
night, you will hear Lou Dobbs talk about broken borders and 
homeland insecurity, a major part of which is due to a lack of 
coordination between Immigrations Customers Enforcement and 
Custom Border Protection.
    Financial separation between these two agencies undermines 
the morale and also wastes resources and creates competing 
agendas. For example, your report notes that ICE controls the 
detention and removal program, which already has a limited 
amount of detention space, but that competing demand for 
housing, those arrested by ICE versus CBP, have only worsened 
the bad space problem.
    The two agencies also simply are not coordinating their 
detention needs as a result of the ability of the department to 
proceed in removing the volume of aliens apprehended by both 
ICE and Customs Border Protection.
    The subcommittee first considered whether ICE or CBP should 
be merged back in March. At the time, there seemed to be a 
steady drumbeat of saying that One Face at the Border was a 
failed initiative and a dysfunctional relationship between ICE 
and CBP made us less secure.
    Yet Secretary Chertoff had the opportunity to make these 
things happen in the second stage review and he chose the path 
of least resistance. He avoided the big job of merging these 
two organizations and did what was easy. He eliminated the 
Border and Transportation Security, BTS, and just made ICE and 
Customs Border Protection even more difficult as it relates to 
being able to carry out their mission.
    I think what is important here, Mr. Chairman, and also to 
our witnesses and those that are here, interested parties, is 
that we work out what is best for America and work out what is 
best as it relates to strengthening security.
    As you know, later on this week there will be 
consideration, Mr. Under Secretary, of possibly putting before 
the committee the opportunity to merge both of these 
departments to make sure that we can streamline as much as 
possible the enforcement and also execution of both of their 
goals. I look forward to hearing your testimony on other 
alternative ways that we could look at this overall agenda 
between these two agencies.
    The Department of Homeland Security, in closing I must add, 
is still a very new department and also needs the kind of 
oversight and management that the American people look for to 
us providing. But we also have to leap forward and make sure 
that we do what we are supposed to do, when it is time to do 
it, if it going to save the taxpayers money, and at the same 
time achieve the goals of protecting the homeland.
    Thank you so very much, Mr. Chairman. I yield back the 
balance of my time.
    Mr. Rogers. I thank the gentleman.
    Members are also reminded they can submit opening 
statements for the record.
    We are pleased to have two distinguished panelists with us 
today on this important topic.
    I would like to remind you that your entire statements can 
also be submitted for the record. We would like to ask you to 
limit your audible statements to around five minutes so that we 
can then get on to questions.
    The chair now calls the first panelist, recognizing Mr. 
Robert Ashbaugh, Assistant Inspector General for Inspections 
and Special Reviews, Department of Homeland Security, for any 
statement he may have.
    Mr. Ashbaugh?

                STATEMENT OF ROBERT L. ASHBAUGH

    Mr. Ashbaugh. I would like to start by acknowledging and 
extending our appreciation to the committee for its continuing 
oversight and its support of the Office of the Inspector 
General. There is so much that we have together to work on in 
this important arena, and we thank you very much for your help 
and assistance and support to us.
    Today, I would like to discuss the organizational 
interrelationship of ICE and of CBP. As you mentioned, we were 
asked to do this review and began it in roughly February. 
During the course of the ensuing several months, we interviewed 
approximately 600 individuals in 63 CBP and ICE facilities 
around the country. We interviewed senior border and 
transportation security officials, ICE and CBP leaders in 
Washington, and we made a special effort to reach out and talk 
to the managers in the sector district and port of entry 
offices and the employees on the line, along with union 
representatives and a number of persons outside DHS who had a 
perspective on this.
    We reviewed the budget plans, the performance statistics, 
the operating procedures, as much of the written record of ICE 
and CBP activities as we could get, in an effort to attempt to 
study what started out as a binary question: Should there or 
should there not be a merger?
    Early on, we decided and made a significant effort to try 
to capture as part of the final report some of the issues and 
programmatic controversies that we encountered so that at the 
end of the process, whether or not there was a merger or not, 
whether or not our recommendation, whatever it might eventually 
be, was accepted or not, that the report itself would have an 
underlying value as we moved forward.
    In the course of the review, we focused on three issues 
that seemed to be most important to understanding the 
structural interrelationships of ICE and CBP. These were the 
coordination of apprehension, detention and removal efforts; 
the coordination between interdiction and investigative 
efforts; and the coordination of intelligence activities.
    The first is detention and removal operations. As you know, 
CBP apprehends illegal aliens, but is dependent upon ICE's 
detention and removal to transport them, detain them and remove 
them. ICE also apprehends aliens, in effect competing with CBP 
for the detention bed space and for the same removal services. 
Detention bed space is critical. Few illegal aliens are 
actually removed unless they are detained, so this scarce 
resource has to be managed and coordinated carefully if both 
CBP and ICE are to attain their missions. They are so 
interrelated, yet each by acting unilaterally has the 
capability to disrupt the operations of the other, yet we found 
each is developing separate plans for allocating resources 
without consulting the other. We found that ICE detention was 
not maintaining parity with CBP apprehensions.
    With respect to investigative operations, we found that 
although CBP often encounters indicators of a crime, it is ICE 
that is responsible for investigating them. ICE and CBP 
employees told us of the deteriorating situation in which ICE 
investigators do not accept as many referrals from CBP as in 
the past and CBP refers more cases to other law enforcement 
agencies than in the past. Moreover, CBP is developing its own 
investigative capabilities to use instead of ICE investigators. 
We found persistent breaks in the two agencies' relations.
    With respect to intelligence activities, we found that CBP 
and ICE require intelligence regarding illegal aliens, criminal 
aliens, alien smuggling, drug trafficking, fraudulent travel 
documents, and import and export violations. They both have a 
need for a common body of intelligence.
    Despite this need, however, the two organizations have 
separate intelligence structures and products. At the 
headquarters level, the only significant intelligence 
coordination effort that we could identify relates to 
intelligence received from outside agencies. We also found that 
at the field level, the two organizations have gone their 
separate ways and are not coordinating or compiling 
consolidated intelligence useful across the border.
    We heard a surprisingly notable consistency from ICE, from 
new employees, from old employees from Customs and from INS, 
all supporting the proposition that there were significant 
structural impediments to the way they attempted to do their 
business.
    Excuse me. I am not familiar with the red light. Am I okay? 
Thank you for your forbearance.
    We considered three options, and I will try to abbreviate a 
little bit and skip to the one that was most important, and 
that was whether or not there should be a merger. The other 
choice, whether or not to assign the integration responsibility 
via a direct report to the deputy secretary and the secretary, 
or to strengthen BTS and give it additional authority and 
resources to serve as an integrator. Both options we declined 
to endorse.
    We endorse the final option that proposed an elimination of 
BTS and a merger of CBP and ICE. In our opinion, it was the 
optimal solution for removing the problems arising from the 
current organizational structure.
    Instead of building an overhead of integrated structures 
outside of ICE and CBP, we suggested pushing these down into 
one organization. We felt that in doing this, the time 
necessary to get operational decisions, the responsibility for 
accomplishing integration, and the opportunities for informed 
and accountable choice-making among conflicting priorities 
would, in our opinion, be improved by merger.
    As you know, the secretary declined to adopt the merger. As 
I indicated earlier, we were determined that this report have 
value that would last beyond whatever that decision might be.
    We included in the report 14 recommendations of areas that 
we felt needed to be addressed irrespective of whether there 
was a merger or not a merger. The 14 recommendations are a very 
formal way of saying to the public and to Congress and to the 
department that we expect to engage in a dialogue about the 
activities and the corrective actions or the ways in which the 
department will address these recommendations.
    It is also a commitment on our part that we will continue 
to oversee, follow up on, and report on our assessment of how 
those recommendations are being fulfilled and how the issues 
are being addressed.
    Thank you very much. I will be happy to take questions.
    [The statement of Mr. Ashbaugh follows:]

                Prepared Statement of Robert L. Ashbaugh

                       Tuesday, November 15, 2005

    Good afternoon Mr. Chairman and Members of the Subcommittee. Thank 
you for the opportunity to join you today to discuss our review of the 
merits of merging two Department of Homeland Security (DHS) bureaus, 
Immigration and Customs Enforcement (ICE) and the Bureau for Customs 
and Border Protection (CBP) and eliminating the directorate to which 
they report, Border and Transportation Security (BTS).

Impetus for Our Report
    In January 2005, the Senate Committee on Homeland Security and 
Governmental Affairs conducted a hearing to discuss means for improving 
DHS's effectiveness. Prominent among the topics discussed were 
recommendations proposed in a December 2004 report by the Heritage 
Foundation and the Center for Strategic and International Studies, 
entitled DHS 2.0: Rethinking the Department of Homeland Security. 
During the hearing the Committee Chairman asked our office to assess 
the merits of the report's recommendation to eliminate BTS and merge 
CBP and ICE.
    In response, we undertook this review, which examined the history 
of the organizations, the roles and responsibilities assigned to them, 
and the degree to which they have met their inter-related goals. We 
interviewed more than 600 individuals from public, private, and non-
profit sectors. To obtain a balance of viewpoints, we traveled to 10 
cities across the country to talk to employees in 63 CBP and ICE 
facilities. We met with senior BTS, ICE, and CBP leaders in Washington, 
DC, program managers, field staff, employees on the line, and 
stakeholders. We reviewed budget plans, performance statistics, 
operating procedures, and a large volume of other information 
pertaining to BTS, CBP, and ICE.
    As CBP and ICE were reformations of the former Immigration and 
Naturalization Service (INS) and the U.S. Customs Service (Customs), we 
examined whether the problems in operation and integration that we 
encountered arose from the implementation of the new organizational 
structure, or whether they were pre-existing conditions carried over 
from the former agencies. We also considered other factors that may 
have contributed, such as ICE's funding stream and accounting system 
difficulties. After weeding out those issues, we concluded that the 
current organizational arrangement contributed to concerns in at least 
three major areas: coordination of apprehension and detention and 
removal efforts, coordination between interdiction and investigative 
efforts, and coordination of intelligence activities.

Creation of ICE and CBP
    Before DHS was created, the Department of Justice's INS was 
responsible for enforcing the immigration laws, and the Department of 
the Treasury's U.S. Customs Service had authority for enforcing the 
customs statutes. The INS was responsible for ensuring effective 
enforcement of immigration laws from start to finish, including 
apprehension, border inspection, investigation, and prosecution of 
violations of immigration law. Likewise, Customs bore responsibility 
for a full range of customs enforcement activities, including the 
targeting, inspection, regulation, and investigation of all goods 
crossing our country's borders.
    With the formation of CBP and ICE, the responsibility for customs 
and immigration enforcement was divided between the two organizations 
so that each shouldered responsibility for aspects of both customs and 
immigration enforcement. By the same token, neither agency was given 
responsibility for the full scope of customs or immigration enforcement 
activities. CBP received INS and Customs inspections functions and the 
Border Patrol. INS and Customs investigations and intelligence 
functions, as well as the INS detention and removal resources, were 
placed in ICE.
    Under the new structure, the organizations depended on each other's 
assistance to complete enforcement actions. For example, if CBP 
inspectors interdicted an individual for a customs law violation, the 
investigation of the matter would have to be turned over to ICE or 
another law enforcement agency. Similarly, ICE now depended on case 
referrals from CBP inspectors. For their part, CBP Border Patrol agents 
had to rely on ICE detention and removal resources to deport the aliens 
whom they apprehended.
    BTS, the entity responsible for integrating the interdependent CBP 
and ICE activities, was hobbled by inadequate staffing and lack of 
authorities over CBP and ICE. Consequently, BTS leadership often failed 
to prevent CBP and ICE from working at cross-purposes, it did not 
intervene to effectively synchronize CBP's and ICE's operations, and it 
was slow to resolve conflicts between them. In addition, with a few 
exceptions, it was unable to facilitate their development of mutually 
beneficial resource plans and priorities. As a result, the ICE and CBP 
chains of command pursued their own priorities when allocating 
resources and developing procedures. Problems with coordination between 
the two naturally ensued.

Problems in Coordination
    A clear institutional barrier marks the division between CBP and 
ICE. Shortfalls in operational coordination and information sharing 
have fostered an environment of uncertainty and mistrust between CBP 
and ICE personnel. What had been collegial relationships between the 
different enforcement functions within INS and Customs have 
deteriorated. Employees at both ICE and CBP told us that enforcement 
units in CBP and ICE suffer from breakdowns in cooperation, 
competition, and, at times, interference with each other's duties. The 
problems are most notable in three areas: (1) the coordination of 
apprehension and detention and removal operations; (2) the coordination 
of investigative operations; and (3) the coordination of intelligence 
activities.

Coordination of Apprehension and Detention Removal Operations
    Absent a strong integrator, the division of related enforcement 
functions necessitates separate planning and resource allocation. The 
organizations' differing priorities and needs, coupled with ICE's 
funding and accounting problems, have contributed to a resource 
imbalance between CBP's alien apprehension and ICE's detention and 
removal programs. CBP grew its apprehension capabilities while ICE did 
not increase its detention and removal resources. The resultant 
increase in apprehended illegal aliens has placed an increasing strain 
on ICE's static detention and removal resources. It also has reduced 
the impact of CBP's alien apprehension efforts by allowing larger 
numbers of apprehended aliens to roam freely within the United States 
pending their immigration hearing, which many never attend. The backlog 
of immigration hearing absconders is continuing to grow and stood at 
more than 465,000 at the end of fiscal year (FY) 2004. The drop in the 
proportion of illegal aliens who are apprehended and removed may 
inspire more aliens to seek illicit entry into the United States and, 
in turn, may cause removal rates to spiral downward.
    In the past, INS detention and removal resources were detailed to 
INS apprehending components in order to provide support, such as 
assistance with transportation, guard duty, and basic processing of 
aliens. At BTS' instruction, some of this support continues. According 
to senior CBP staff, however, the level and quality of support has 
declined. This declining support, combined with ICE's withdrawal of 
support in other areas, has prompted CBP to divert staff and resources 
from the functions they are best suited to perform--inspections and 
patrol work.
    Ultimately, ICE's detention and removal functions are governed by 
appropriations. Improved coordination in resource allocation between 
CBP and ICE can better align the apprehension rates with the detention 
and removal services, but the value of the deterrent effect that 
results from their improved coordination is still limited by the funds 
available to buy bed space and support removal costs.

Coordination of Investigative Operations
    The division of enforcement functions between CBP and ICE has also 
hampered the coordination of interdiction and investigation efforts Now 
that they are in separate organizations, ICE investigators do not 
accept as many case referrals from CBP inspectors and Border Patrol 
agents, according to many CBP employees. Some attributed ICE's 
declining acceptance rate of CBP referrals to the separate chains of 
command. In the past, when investigators did not respond to a referral, 
inspectors and Border Patrol agents could appeal up their common chain 
of command to direct an investigative response. Now, appealing up the 
separate chains of command is not as effective.
    Likewise, according to many staff, CBP is relying less on ICE to 
investigate the violations it uncovers. Many ICE investigators reported 
that CBP increasingly refers cases to other investigative agencies. In 
both the INS and Customs, investigators had the right of first refusal 
for cases detected by inspectors. Now, due to the decline in ICE's 
acceptance rate, interagency competition, growing mistrust, and a 
decline in feedback on case progress, CBP is referring more cases to 
the Federal Bureau of Investigation (FBI), Drug Enforcement 
Administration (DEA), and local law enforcement authorities for 
investigation, without first notifying ICE. In addition, CBP is 
developing its own investigative capabilities to use in lieu of ICE 
investigators. In October 2004, CBP announced a pilot program to 
increase the number of CBP enforcement officers--a former INS group 
that investigated some immigration cases, but was restricted to the 
ports of entry (POEs). CBP's pilot program would broaden the scope of 
these CBP enforcement officers' authority to include criminal 
violations of the federal customs and drug statutes and expand their 
jurisdiction outside the POEs. Along the same lines, the Border Patrol 
has taken some steps to reconstitute its investigative capabilities in 
alien smuggling cases.
    A large number of CBP employees and ICE investigators expressed 
concern about the growing antagonism between the two organizations. 
They told us that they fear that coordination will deteriorate further 
as legacy employees retire or resign, and the remnants of good working 
relationships held over from the former INS and Customs will lapse.

Coordination of Intelligence Activities
    CBP and ICE intelligence requirements overlap to a large extent, 
yet coordination of intelligence activities between them has also 
suffered. Both CBP and ICE require intelligence regarding illegal 
aliens, criminal aliens, alien smuggling, drug trafficking, fraudulent 
travel documents, and import and export violations. Despite their 
shared intelligence needs, the two organizations have separate 
intelligence structures and products. Intelligence coordination between 
CBP and ICE at both the headquarters and field levels needs 
improvement. At the headquarters level, the only significant 
intelligence coordination effort that we could identify between the two 
organizations relates to intelligence received from outside agencies. 
Meanwhile, CBP withdrew from ICE field intelligence elements as ICE has 
from CBP's.
    The organizations' primary means of sharing intelligence is the 
Treasury Enforcement Communications System (TECS), which was not 
designed for this purpose. Most CBP personnel lack the required level 
of access to retrieve critical information entered into TECS by ICE. As 
a result, valuable ICE information about criminal trends and threats is 
effectively withheld from most CBP employees, especially from those in 
the field. Furthermore, because the data system was not designed as an 
intelligence tool and does not highlight trends or detect anomalies, 
intelligence analysts often are unaware of the information it contains 
and must hunt through the entire system to retrieve information they 
might need.
    CBP and ICE work independently of one another to develop 
intelligence products. CBP and ICE intelligence analysts told us that 
the two organizations have never co-authored any major intelligence 
products. The intelligence products each generates serve their 
respective needs and may not present a comprehensive picture of border 
security.
    Improved efforts to eliminate intelligence stovepipes are needed. 
Intelligence and other information CBP and ICE could use to enhance 
their operations and improve overall border security is sometimes 
retained on the other side of the interagency wall. As a result, 
neither agency has all of the information it needs from the other.

Conclusions and Organizational Options
    We heard a surprising and notable consistency of concerns amongst 
the more than 600 people we interviewed in 63 sites across the country. 
Their comments were supported by the data we reviewed. The breadth and 
depth of our field work, combined with data supporting the facts we 
learned in the field, allow us to conclude that significant problems 
have arisen from the institutional gap that separates the enforcement 
functions maintained in CBP and in ICE. While never perfect, what had 
been a working continuum of immigration and customs enforcement 
functions has been fractured, and redundant functions, stovepiped 
information, and inefficient operations have ensued. These problems 
defeat the purpose of the current organizational structure, which 
according to DHS,\1\ was to establish coherent policies, reduce 
duplication of efforts, and improve information sharing.
---------------------------------------------------------------------------
    \1\ DHS, ``Border Reorganization Fact Sheet,'' January 30, 2003.
---------------------------------------------------------------------------
    In addressing the task given us by the Senate Homeland Security and 
Governmental Affairs Committee, we considered the merits of the 
recommendations made by the Heritage Foundation report, as well as two 
other alternatives:
         Eliminate BTS and maintain CBP and ICE as separate 
        entities reporting directly to the DHS Deputy Secretary
         Create more effective coordination mechanisms by 
        strengthening BTS and implementing more effective memoranda of 
        understanding
         Merge CBP and ICE and eliminate BTS
    The first option would not bridge the institutional gap between the 
enforcement functions. We believe it would further degrade enforcement 
coordination, as BTS' integrator function would be further removed from 
day-to-day operations up to the level of the Deputy Secretary. We did 
not endorse this option. The second option would require providing BTS 
with more staff and resources, as well as authority to effectively 
manage the operations of both ICE and CBP, including developing policy, 
directing resources, resolving disputes, and dictating personnel 
decisions. This model would effectively strip the heads of ICE and CBP 
of their authority and transfer it to BTS. While the authority to 
direct ICE and CBP would be merged into one organization, the 
separation between enforcement functions would continue in each of the 
two organizations. We did not endorse this option, either.
    We endorsed the final option. Merging CBP and ICE and eliminating 
BTS, in our opinion, is the optimal solution to removing the problems 
arising from the current organizational structure. The almost universal 
message that we heard from inspectors, Border Patrol agents, 
investigators, and DRO officers is that they perceive the current 
problems between CBP and ICE to be inherent to the organizational 
structure and impossible to resolve absent a merger. Merging the 
entities would restore the continuum of enforcement functions that 
operated in the former INS and Customs. While costs would be associated 
with a merger, we believe that the costs of not merging would be 
greater. Allowing the current organizational structure to stand would 
allow ICE and CBP to continue to drift further apart, and operate too 
autonomously. While we acknowledge the Department's concern that 
merging the entities would represent a step back to the former agencies 
and would be wasteful because of the new costs required to accomplish 
merger, we disagree. We do not propose to reconstitute the INS and 
Customs. Further, we believe a merger can be accomplished more cheaply 
now than later. Merging ICE and CBP would create a true border 
enforcement agency enhanced not only by the seamless integration of 
enforcement functions, but by the melding of customs and immigration 
authorities, as well. With such an entity, we believe DHS would be 
better prepared to fulfill its mission of protecting the homeland.
    In addition, our report addresses the placement of three other 
organizations that are currently in ICE: the Federal Protective Service 
(FPS), the Federal Air Marshal's Service (FAMS), and the Fraudulent 
Document Laboratory (FDL). The FPS mission to protect federal office 
buildings has no association with ICE's mission to investigate 
immigration and customs violations and should be separated from ICE. 
Similarly, because the FAMS mission to protect domestic civil aviation 
has little in common with the ICE mission, we suggested that FAMS be 
transferred back to TSA, which shares a similar mission. Finally, 
during the course of our fieldwork, we learned that ICE and CBP each 
maintain a capability for examining and analyzing fraudulent documents. 
To improve efficiency and information sharing, we suggested that the 
entities be merged into a single office located in CBP.

Recommendations for DHS Second Stage Review Implementation
    While we were conducting our review, the Secretary initiated the 
Second Stage Review (2SR) of DHS operations and structure. On July 13, 
2005, after reviewing the results of 2SR, as well as the results of our 
review, the Secretary decided not to merge ICE and CBP. Instead, he 
placed them in a direct reporting relationship to the Deputy Secretary, 
in a configuration similar to the first option that we considered.
    In light of the Secretary's decision, we made 14 recommendations to 
address our organizational and operational concerns with CBP, ICE and 
BTS. The recommendations are designed to improve the organizations' 
ability to:
         Define and communicate roles and responsibilities
         Better coordinate planning and budgeting
         Set and enforce priorities
         Maintain control, monitor and arbitrate disputes
         Share information
    In general, the report cautions about the need for continuing and 
intense attention to the management and coordination needs of the 
agencies. ICE and CBP operations still require intensive monitoring, 
and senior management will have to be available to address 
unanticipated integration issues.
    Mr. Chairman, that concludes my prepared statement. I would be 
happy to answer any questions you or the Members may have.

    Mr. Rogers. Thank you, Mr. Ashbaugh.
    The chair now recognizes Mr. Stewart Baker, Assistant 
Secretary for Policy at the U.S. Department of Homeland 
Security.

              STATEMENT OF THE HON. STEWART BAKER

    Mr. Baker. Thank you, Chairman Rogers, Ranking Member Meek, 
members of the committee. It is a pleasure to be here. It is my 
first time testifying and, I am sure, not my last. I am looking 
forward to it.
    Very briefly, I would say that having reviewed this very 
careful report, we come away with a sense that the inspector 
general has, with some exceptions, gotten the symptoms right. 
He has identified a lot of problems that ICE and CBP have in 
their relationship and in their execution of their duties.
    But in terms of the prescription that the inspector general 
ultimately recommends, we could not disagree more. Our view is 
that if at this point the Congress were to seek to put CBP and 
ICE into a merger, it would set us back a year or more in the 
effort to control the border. We cannot afford a year at this 
stage in our country's history.
    Let me go back and talk a little bit about, first, the 
symptoms and then the prescription.
    We do not agree with everything in this report. It would be 
surprising if we did, but I think that Mr. Ashbaugh is correct 
to say that this was written to be a valuable record and it is 
a valuable resource. It identifies weaknesses in a variety of 
places, both the detention and removal and intelligence 
operational lack of coordination, and spends a long time 
discussing the very severe funding difficulties that ICE had as 
a result of the organizational changes that came with the 
creation of DHS.
    ICE ended up substantially underfunded. The ICE 
investigators did not have travel funds. They did not have 
training funds. They did not have opportunities to bring 
witnesses along. They could not get awards or promotions, still 
vacant jobs. It was a very hard time for ICE and a time of 
considerable trouble in very substantial part because of the 
changes that came with the reorganization that created DHS.
    We agree that these were all problems, in part because the 
Secretary began his examination of the department's needs at 
about the same time that the Inspector General did, and heard 
many of the same things that the Inspector General did about 
all of the problems that we have just described and that the 
Inspector General has laid out.
    However, while the Inspector General was beginning his 
study, the Secretary was beginning a second-stage review to 
determine what could be done to address some of those problems. 
What I find striking is that many of the things that the 
Secretary has done are aimed at exactly the same kinds of 
symptoms that the Inspector General addresses.
    For example, the detention and removal and the mismatch 
between resources there. For many years, there has been 
insufficient bed space to hold all the people that are 
apprehended. This is not a new development, and there was 
tension well before the creation of DHS over those issues, but 
there is no doubt that that is a concern.
    As a result of the Secure Borders Initiative that the 
Secretary has now announced, we are making efforts to make sure 
that those beds are used in a strategic way in order to meet 
the strategic goals of the department, both of ICE and of CBP, 
and the creation of the Secure Borders Program Management 
Office is in substantial part designed to make sure that we are 
using our capabilities there in a fashion that meets all of the 
needs of all of the department most effectively.
    Similarly in intelligence, the Secretary looked at the 
intelligence coordination and also thought it was insufficient; 
created a position of the chief intelligence officer. It was 
designed to change the way all of the elements of DHS deal with 
intelligence and to make sure that we did create things such as 
a career ladder for intelligence officers that would allow, 
encourage, perhaps even require that in the long run, as people 
serve as intelligence officers in DHS, they move from ICE to 
CBP and elsewhere in the department.
    We are in the process of implementing that kind of change, 
and again, it is the Secretary's common view of the problem 
with the Inspector General that has led to the changes.
    Similarly, coordination, there are a number of coordination 
issues that do need to be addressed item by item as we go 
through, and the Secretary has begun that process. We are not 
perfect yet, that is for sure, but I think we are on the road 
and we can see the ways forward to addressing a lot of these 
problems.
    The question then comes, should we instead merge these 
items, rather than pursue these smaller sets of initiatives? I 
would say formally that our view is we should not. The reason 
is that many of the problems that the Inspector General 
identified are precisely the result of the difficulties in any 
large-scale organizational change.
    The ICE and CBP, but particularly ICE, personnel have just 
gone through a couple of years of great turmoil in which no one 
knew for sure what their job was, who they were going to report 
to, what their organizational prerogatives were, where the 
borders were with other organizations. That is just beginning 
to sort out.
    If we went through a merger, we would be back in the 
process of saying, well, who do I report to; and what is my 
job; and what is his job; what does the logo look like; what 
color are we painting the trucks. All of those decisions create 
a kind of organizational churn that I fear would distract both 
ICE and CBP for a year or more, time which we could better use 
to try to get control of the border.
    So while we agree on the symptoms, I do not think we agree 
on the prescription. We think that since the report began, 
since these stories were gathered by the Inspector General, 
changes have begun. We are a long way down the road. Many of 
those problems are in our rearview mirror and it is very 
dangerous to try to steer an organization of this size through 
this kind of a dangerous terrain by staring in the rearview 
mirror.
    Thank you.
    [The statement of Mr. Baker follows:]

            Prepared Statement of the Hon. Stewart A. Baker

                       Tuesday, November 15, 2005

                              INTRODUCTION

    Mr. Chairman and members of the Committee: thank you for the 
opportunity to address you today, and for your ongoing support of the 
Department of Homeland Security's efforts to keep America secure. I am 
honored and pleased to appear before the House Homeland Security 
Committee, Subcommittee on Management, Integration and Oversight for 
the first time in my capacity as the Assistant Secretary for Policy at 
the Department of Homeland Security. I am pleased to have this 
opportunity to discuss the vital issues of border security, interior 
enforcement and immigration reform in the context of the Department's 
management challenges as a whole. appreciate this Subcommittee's work 
with the Department in this area. It is critical to the Department that 
we work hand-in-hand with you to ensure that we are effectively 
managing our border and interior enforcement efforts.

                          SECOND STAGE REVIEW

    Considerable work has been done since 9/11 to enhance border 
security. We have significantly increased the number of agents and 
officers securing our borders and ports of entry, strengthened and 
consolidated inspections, expanded the terrorist watch list, created 
new screening and credentialing tools, and increased our enforcement 
capabilities. But much remains to be done. Illegal immigration 
undermines our national security. And illegal immigration imposes 
particular public safety and economic strains on our communities.
    Secretary Chertoff studied these critical issues carefully in his 
Second Stage Review of the Department. He looked, in particular, at 
proposals to enhance coordination between Immigration and Customs 
Enforcement (ICE) and Customs and Border Protection (CBP). After 
careful study, he decided that the best course was not to merge ICE and 
CBP, as some had suggested, but to propose a new management structure 
intended to reduce bureaucracy, improve accountability, and enhance 
coordination. In addition to making ICE and CBP direct reports to the 
Secretary and eliminating the Border and Transportation Security 
Directorate, the Secretary stood-up a Department-wide Policy office, 
Operations office, and Intelligence office to ensure that the 
Department and its components are mission-focused and effectively 
leveraging tools from across the DHS spectrum. Among other things, it 
was the Secretary's belief that a merger would diminish, rather than 
enhance, the roles of the Assistant Secretary of ICE and the 
Commissioner of CBP by, in effect, relegating them to the Deputy 
Assistant Secretary level. It would thus merely recreate a new 
bureaucratic reporting mechanism that has already been harshly 
criticized.
    The Secretary also concluded that we must think innovatively and 
undertake a new way of doing business in the border security realm. 
Thus, the first major initiative that he launched following his Second 
Stage Review, in addition to the new management structure, was the 
stand-up of the Secure Border Initiative or SBI. The Secretary put 
together a team of experts, from CBP, ICE, CIS, U.S. Coast Guard, our 
Intelligence Office, Management Directorate, and others, to focus on 
all aspects of the border security problem--deterrence, detection, 
apprehension, detention, and removal. This initiative is intended to 
provide a mechanism to meet the challenges in each of these areas with 
an integrated mix of increased staffing, more robust interior 
enforcement, greater investment in detection technology and 
infrastructure, and enhanced coordination on the federal, state, local, 
and international levels. As discussed below, we are taking other 
important steps to enhance coordination between ICE and CBP.
    I speak for the Secretary when I say that greater focus at the 
Department level--which we are undertaking--and innovative and 
integrated thinking are a far better solution to securing the border 
than imposing a massive reorganization through a merger of CBP and ICE. 
Indeed, our grave concern is that a merger would have precisely the 
opposite effect. The time and attention that it would take to 
restructure these two organizations under one figurative head would 
divert critical resources away from where our focus must be--securing 
the border. Indeed, it would yield a protracted period (at a minimum 
six months to a year) of mission confusion and organization churn, thus 
undermining the operational effectiveness of CBP, ICE, and, frankly, 
the Department at large.
    As you all know well, much effort has gone over the past several 
years toward standing up these two agencies, which have unique and 
complementary missions. It was no easy task to merge the personnel, 
resources, authorities, systems, and cultures of some 22-government 
agencies to form the Department of Homeland Security. Forcing the 
55,000 plus employees in these two components to go through yet another 
major structural change under one behemoth agency within the Department 
would be a significant setback. These two organizations are in the 
midst of developing a culture, infrastructure, lines of communication, 
and chain of command and policies. Upheaval created by the 
implementation of a new organization would likely draw further 
confusion as to roles and responsibilities and result in employee 
demoralization. Employees would once again need to cope with mission 
confusion, uncertainty of reporting and supervisory structures, among 
other concerns. We could expect many employees would be frustrated by 
the need to go through yet another massive change and many may leave 
altogether.
    The challenges that confront us along our Nation's borders are 
substantial. But simply realigning the organizational boxes does not 
resolve the complex challenges presented in the dynamically evolving 
and resource-constrained environment in which we operate.

                       INSPECTOR GENERAL'S REPORT

    I appreciate the careful study that the Inspector General's Office 
undertook when considering the value of merging ICE and CBP. The 
Inspector General's Office interviewed many ICE and CBP officials and 
employees in the field and we found much that was of value in that 
report. In particular, the report identified considerable morale 
problems, making it abundantly clear that many employees have struggled 
with the costs inherent in transition. ICE employees, in particular, 
also felt the strain associated with the agency's financial shortfalls. 
As you will see from the Department's written response to the report, 
however, we disagree with the ultimate conclusions drawn from these 
interviews. To that end, we are concerned that the IG did not 
sufficiently corroborate or validate the misperceptions inherent in 
many of the personal testimonials. To be sure, employee concerns 
suggest that there is an exigency in improving culture and morale, but 
they do not justify a massive organizational change. We note that, in 
addition to the transitional problems inherent in any reorganization, 
ICE employees, in particular, were operating under budgetary 
constraints that the Department and Congress have worked to resolve. 
But we are concerned that the report focused too heavily on anecdotal 
evidence and not enough on empirical data that documents systemic 
coordination. While anecdotal interviews can and do provide valuable 
insight, we do not agree that they should serve as the impetus for a 
massive organizational change.
    The report also fails to take into account that these two 
organizations are still in their early stages, having just gone through 
major transformations. As a result, it is far too early to tell whether 
the 2003 reorganization is successful. To that end, the report barely 
touches upon whether problems that existed prior to the reorganization, 
following passage of the Homeland Security Act, have now been resolved. 
Nor did the report take a serious look at whether some of the 
identified problems are in fact ``legacy'' problems. And there is 
little discussion of the costs associated with a merger.
    Let me be clear that I have not come here today to say that 
creating ICE and CBP out of the old immigration and customs 
organizations was cost-free or problem-free. All government 
reorganizations have costs as well as benefits, and the transition is 
never easy. It always takes time to find and solve the problems that 
arise from reorganization. Indeed, these are the growing pains inherent 
in any reorganization, especially when employees must adjust to new 
missions, financial systems, and management structures.
    The report, however, did not address any of the positive steps 
these agencies have taken in the initial two years towards the 
integration of complex legacy authorities and diverse cultures both 
within the organizations and with each other. As part of the initial 
transition planning, noted but dismissed by the Inspector General in 
the report, existing policies and procedures were developed to provide 
a fully integrated, comprehensive immigration and customs cooperative 
process for the legacy Customs and former INS field managers. Both ICE 
and CBP developed organizational templates, which met the new DHS 
mission requirements. Subsequently, each organization highlighted 
problems for resolution and have worked towards enhancing coordination 
to address identified problems. Coordination issues continued to be 
worked through joint groups throughout the Department and within ICE 
and CBP. Coordination has improved simply by virtue of the fact that a 
number of offices that were previously housed in several different 
Departments are now under one umbrella. But, as we have documented in 
greater detail in our response to the report, significant steps have 
been taken to enhance coordination in all three areas that the 
Inspector General focused on: (1) Apprehension and Detention and 
Removal Operations; (2) Investigative Operations; and (3) Intelligence 
Activities. We invite you to study our response.

                         ENHANCED COORDINATION

    While the Inspector General ultimately recommended merging the two 
agencies, he also included a series of valuable recommendations short 
of merger to address the coordination problems that he identified. We 
have studied carefully the report's recommendations and have already 
implemented some of these changes.
    We agree with the Inspector General that the key to excellent 
performance lies in integrating the components through working level 
communication, enhanced coordination, and unified management from 
Department leadership on down. As I already mentioned above, we have 
begun to do precisely that.
    First, as I noted above, we have created the SBI Program Office, 
which will report to the Secretary through the Policy Office. I am 
committed to overseeing this office closely and will ensure that it 
continues to receive the full attention of the highest levels of the 
Department. Under the Program Manager's office, we are integrating 
experts and resources from across the Department, including CBP, ICE, 
CIS, U.S. Coast Guard, and Intelligence, into our planning and 
execution. We are incorporating metrics and measurement into the SBI 
program plan. SBI will work in unity of command and purpose within the 
Department to systemically evaluate and resolve the problems along our 
Nation's borders.
    The overall vision for the SBI includes:
         More agents to patrol our borders, secure our ports of 
        entry and enforce immigration laws;
         Expanded detention and removal capabilities to 
        eliminate ``catch and release'' situations once and for all;
         A comprehensive and systemic upgrading of the 
        technology used in controlling the border, including increased 
        manned aerial assets, expanded use of UAVs, and next-generation 
        detection technology;
         Increased investment in infrastructure improvements at 
        the border--providing additional physical security to sharply 
        reduce illegal border crossings; and
         Greatly increased interior enforcement of our 
        immigration laws--including more robust worksite enforcement 
        and increased compliance with visa requirements.
    In addition to SBI, we are undertaking a number of other steps to 
improve coordination, including:
         Integration and alignment of priorities. Both the 
        Department-wide Policy office and Director of Operations 
        Coordination will play a major role in integrating policy and 
        operations of all the DHS operational agencies, including CBP 
        and ICE. In coordination with CBP and ICE, they will also align 
        Departmental priorities.
         Performance tracking and interagency reviews. The 
        Office of Policy will monitor the implementation of these 
        priorities through performance tracking and periodic 
        interagency reviews, including assessments of related resource 
        deployments.
         Intelligence Fusion and Department-wide Intelligence 
        Products. Similarly, understanding the enemy's intent and 
        capabilities affects how we operate at our borders. The Office 
        of Intelligence and Analysis will take the lead in ensuring 
        that we are operating under a common picture across the 
        Department, thereby addressing the IG's concern for greater 
        coordination in this area. In addition to the joint efforts 
        that are already underway between these two agencies with 
        respect to intelligence and information-sharing, the 
        Department's new Chief of Intelligence will fuse information 
        from all DHS components, including ICE and CBP. This 
        organizational change within the Department will increase 
        information sharing between components, but will also develop 
        intelligence products that incorporate all-source information 
        from across DHS. Over the last month, a working group within 
        the Department established protocols and mechanisms to provide 
        analysts from the Office of Intelligence and Analysis with 
        much-improved access to key ICE and CBP databases, providing 
        the Office of Intelligence and Analysis with a far better 
        capacity to conduct patterns and trends analysis in this area. 
        Plans are also underway to improve our Reports Officers program 
        and the Department is making significant improvements in the 
        number and quality of Intelligence Information Reports that it 
        produces.
         Performance Metrics. The Department will develop 
        performance metrics for internal CBP and ICE operations, and 
        metrics for gauging the extent of interaction and coordination 
        between CBP and ICE.
         Budget Coordination. Starting with the 2007 
        President's Budget request, the Department CFO has established 
        a more formal process to ensure greater visibility and 
        coordination between CBP and ICE for budget formulation and 
        strategic planning processes. This will ensure a more 
        consistent and proper balance of border/apprehension assets 
        within CBP with interior enforcement/removal assets in ICE. In 
        addition, the Chief Financial Officer will track budget 
        execution to guarantee compliance with agreed-to budget and 
        plans.
         Joint CBP-ICE working groups. A joint CBP-ICE working 
        group will oversee the implementation of interagency 
        coordination efforts and Memoranda of Understanding. The 
        working group will be responsible for dispute resolution, 
        responding to requests that deviate from plans, making 
        adjustments, providing clarification, and resolving different 
        interpretations of related guidance.
    These enhancements will ensure that we are carefully monitoring, 
measuring, and implementing mechanisms to enhance coordination. At the 
same time, ICE and CBP have been working steadily to build a better 
relationship. Both ICE and CBP have increased productivity in virtually 
every facet of their law enforcement activities, in many cases breaking 
annual enforcement records. Collectively, they have generated many 
cooperative successes in the last two years, such as Operation ICE 
Storm, Operation Texas Hold `Em, the ABC Initiative, the LAX 
Initiative, and the Expedited Removal Working Group. Indeed, it should 
be noted that the IG specifically pointed out in his report that he was 
not aware of many of the coordination efforts underway within the 
Department when he conducted his review.
    At the same time, the decision not to merge these agencies also 
rests with an important truth about their work. While the core missions 
of ICE and CBP, interior enforcement and interdiction respectively, are 
closely related, they are not identical. ICE's Operation Predator and 
the enforcement of child exploitation laws and ICE's Violent Gang 
Initiative, Community Shield, are two such examples. Critical interior 
enforcement elements could suffer mission degradation if the two 
agencies were merged into a massive 55,000-employee agency with a more 
diverse focus.
    In addition, CBP has made great strides in its own merger at 
integrating its inspectional workforce, aspiring towards One Face at 
the Border. More then 37 cross training modules have been built and 
will be implemented in the field by December 31, 2005. These modules 
will not only cross train the existing personnel who were on-board at 
the time of the merger, but are also the key components in the 2-year 
On-the-job-training for all new CBP Officers. To date, students filling 
more than 112,660 training slots have passed through these courses. In 
the past year alone, more then 7,300 CBP Officers and Agriculture 
Specialists have taken the Anti-Terrorism courses and more then 13,150 
employees have taken the fraudulent document detection courses.
    ICE, overcoming enormous challenges to fulfill its mission, has 
accomplished much in the last two years. As the second largest federal 
contributor of agents to the Joint Terrorism Task Force, ICE has 
increased the number of ICE cases by 500 percent. In Worksite 
Enforcement, ICE targeted critical infrastructure worksites including 
airports in Operation Tarmac that resulted in the arrest of more than 
1,190 unauthorized alien workers with 782 criminal indictments and 
nuclear power plants in Operation Glow Worm which resulted in the audit 
of 63,835 employee records. Fighting identity and benefits fraud, in 
fiscal year 2005, ICE conducted 3,591 investigations, leading to 875 
criminal indictments. Investigating arms and strategic technology 
violations, ICE has initiated 5,670 investigations into illegal exports 
and has netted 431 arrests, 305 indictments and 282 convictions since 
the formation of the agency. In the detention and removal operations of 
undocumented aliens ICE reduced the average detention period for 
``other than Mexican'' aliens that are detained. Using new strategies 
that blend immigration and customs authority ICE increased by more than 
30 percent its human trafficking and smuggling investigations, and 
increased the assets seized to roughly $27 million in FY 2005.
    Additionally, in FY 2005, CBP cleared 86 million arriving air 
passengers from abroad. This is the largest number of air passengers 
traveling to the United States in history, and also marks the first 
year that the number of air passengers surpassed pre-9/11 levels. In FY 
2005 CBP officers at ports of entry arrested more than 7,600 persons on 
outstanding state or federal warrants, more than a 40 percent increase 
over FY 2003. Over the last two years, CBP did its part to combat 
identity and document fraud through the successful implementation of 
the Machine Readable Passport and Digital Photograph requirements for 
travelers from Visa Waiver countries. In addition, CBP intercepted more 
than 75,000 fraudulent documents in each FY 2004 and FY 2005 and 
intercepted and denied entry to almost 500 persons last year who 
presented a terrorism or national security threat, more than a 20% 
increase over FY 2004. Between our ports of entry, the CBP Border 
Patrol again apprehended more than 1.1 million individuals attempting 
to illegally enter the United States, and the CBP P-3s based in 
Jacksonville, Florida and Corpus Christi, Texas contributed to the 
seizure of over 210,779 pounds (105 tons) of illegal drugs--over 38,600 
more pounds (19 tons) than last year.
    This is an impressive list of accomplishments, especially when 
viewed in light of the fact that at the time of the OIG's 
investigation, ICE was laboring under a severe budget shortfall that 
hampered its daily operations. In addition, CBP was heavily involved in 
the continued integration of its inspectional workforce and the Air and 
Marine Operations program. ICE's financial crisis seriously constrained 
hiring and operational flexibility, resulting in a morale-draining 
imposition of travel restrictions, compensation restrictions and other 
meaningful belt-tightening. Given these constraints, it is no surprise 
that the report revealed serious morale problems. In July 2005, 
Congress provided ICE with a funding supplemental of $369 million. This 
Congressional appropriation will ensure that the agency functions much 
more effectively and that its employees thrive in their key enforcement 
mission.
    The Department is grateful to this Subcommittee for its attention 
and support during the first years of our formation. We look forward to 
working hand-in-hand with this Subcommittee as we develop new 
technologies, enhance methodologies, and, critically, measure whether 
what we are doing is achieving real results. Conscious of our 
obligations to protect the Nation through effective border control we 
have deeply studied our enforcement challenges and whether we were 
meeting them in the most effective manner possible. Through the Second 
Stage Review and the proposed changes I have discussed with you today, 
I believe the Department has provided a roadmap for change and 
improvement in its performance, accountability, coordination, and 
management of personnel and duties.
    The Department is fully committed to meeting the many challenges 
that any recently created organization faces and we believe we have 
made significant inroads in confronting the change needed to be more 
effective for the American people. Thank you once again for the 
opportunity to discuss these issues with you, and I look forward to 
answering your questions.

    Mr. Rogers. I thank the gentlemen.
    I have a few questions.
    I wanted to address what you were focused on, Mr. Baker, 
and that is you acknowledge that the 14 symptoms, as you called 
them, are accurate and they exist. Then you go further and say 
that if we did make this merger, it would set us back a year, 
in your opinion, in securing our borders.
    Well, if it is not working, why do we want to give it 
longer? And how much longer are you talking about?
    You made reference to the fact that since the interviews 
for this audit were completed, you have already started 
implementing remedies. How long will it take for those to be 
effective so that people know who they are reporting to and 
what color the trucks are going to be painted?
    Mr. Baker. First, as I said, there were three main areas 
where there were concerns identified by the inspector general. 
In two of them, I can say we have already implemented many of 
the changes that we think are needed. The trucks and the logos, 
that has been decided and sorted out. It was sorted out months, 
if not a year ago.
    Mr. Rogers. A merger would not affect that.
    Mr. Baker. A merger would create yet another set of 
questions of that sort, because then the question becomes, 
well, who is my boss; what is my logo; which culture is going 
to predominate here; is this going to be principally the cops; 
is it going to be principally the inspectors who set the tone 
for the organization. In any merger, there are questions of 
that sort that sort down from the top all the way to the field 
units. All of those relationships would have to be re-sorted 
again.
    So I would describe the kinds of problems that the 
Inspector General found as the kind of problems you would 
expect when you make a major reorganization. They are not 
fatal. They are problems that need to be solved and we are in 
the process of solving them. We are already planning detention 
and removal in a much more coordinated fashion and using it in 
a much more strategic fashion.
    Mr. Rogers. Are you seeing measurable improvements since 
you started making changes, because he found some pretty 
significant problems in communication between the two. For 
instance, the number of apprehensions were down.
    Mr. Baker. Yes. In July or August of this year in response 
to concerns about how we were using our detention facilities 
and whether we were using them strategically, the department 
began what became SBI, the Secure Border Initiative. The way we 
began that was by bringing people from ICE and CBP and several 
other organizations together to deal with the question of how 
are we going to address the very severe problem of non-Mexicans 
who are being apprehended crossing the southwest border.
    This is a relatively recent, but very severe problem 
because, as Mr. Ashbaugh said, if you do not have the space for 
people, even after you catch them, you have to release them. We 
were in a position of releasing I think 120,000 people a year 
into the United States, when we told them to show up for their 
hearing, but a lot of them would not. So that many of the 
illegal population of the United States were people that we had 
touched, apprehended and let go because we did not have space 
for them.
    In an effort to address that, we have begun focusing on 
making sure that we detain. We detain practically every 
Brazilian that we pick up. As a result, the word has gotten 
back to Brazil that it is not a good idea to come here, pay a 
coyote to take you across the border, because you are going to 
end up back in Brazil before you know it. That is an expensive 
trip and it costs a lot of hire the coyote, and a lot of 
Brazilians seem to have been deterred from doing that by the 
knowledge that they are going to be detained.
    We have begun doing that with other countries' nationals in 
an effort to spread that deterrence farther. Our hope is if we 
can do this in a systematic strategic fashion, that the 
deterrence will mean that in the long run we will not have to 
use as many of our detention facilities for non-Mexicans who 
are caught crossing the border. That is why I think of it as 
strategic.
    But in the end, what we are doing is using DRO's 
capabilities very substantially in support of CBP. CBP has come 
out with a greater sense that its mission is being supported by 
DRO as a result of this process.
    Mr. Rogers. I am still looking for a timeframe within which 
you feel comfortable that you will have remedied the 
deficiencies that were outlined by Mr. Ashbaugh, and some 
metrics that you are saying you can point to that objectively 
verify what you are saying.
    My time is up. Since there are only three of us here, we 
will have time for several rounds.
    I now yield and recognize the ranking member, Mr. Meek, for 
any questions he may have.
    Mr. Meek. Thank you very much, Mr. Chairman.
    I want to thank both of our witnesses for coming and 
sharing their thoughts with us today.
    I pretty much have a 100-page-plus report from the 
inspector general's office, but I have very few questions for 
you.
    Mr. Secretary Baker, I do have questions for you, sir. I 
know that the chairman asked you about the year-or-more kind of 
thing if you were to merge, but I guess I am looking at this 
from a standpoint of there is a carton of spoiled milk in the 
refrigerator and I open it up and take a smell and say, ``Oh, 
wow, it is spoiled. Let me put it back in; maybe it will be 
fresh tomorrow.'' I mean, I am using that almost as a segue 
into just trying to break down how I am trying to understand 
when we see these very glaring concerns here by the inspector 
general.
    I am even looking at page five of the report on to page 
six, where it talks about the fact that Customs Border 
Protection is now trying to, in the second paragraph, is 
developing its own investigative capabilities because of the 
frustration with ICE at this particular time.
    When you have an inspector general's report saying lack of 
coordination between apprehension and detention and removal 
operations; insufficient coordination of investigative 
operations; and dysfunctional in coordination of intelligence 
activities, you know, I am sort of smelling a 9/11 coming on 
because that is what was in the 9/11 report. The FBI was not 
talking to the CIA.
    So the Congress moved to move these agencies into one 
department; 22 legacy agencies came together. I am not going to 
say this will not get the management report as it relates to 
the federal government, but I did not think it set us a year 
back as it relates to enforcement.
    I do really have some real concerns with this, because if 
something happens, and God forbid if it does and we find that 
the ball fell between these two agencies because of 
competition; because administrators did not want to talk to the 
next person. Meanwhile frontline people, and I am from Miami, I 
talk to these folks all the time, and they say, ``Congressman 
listen, if you want to do something to help us on the 
frontline, put us together so that we can cut out this 
competition between one another.''
    So it is a problem when a Customs Border Protection officer 
starts and investigation and then ICE does not pick it up or 
does not show up at all as it relates to it and they have to go 
out and find another agency.
    So if you can within the time left, I may ask another 
question before that, but I would like if you could try to try 
to give me a little bit more than what I have heard thus far of 
the reaction to the inspector general's report, sir.
    Mr. Baker. I am glad to.
    First, with respect to the question of whether this is 
hopelessly broken or a spoiled carton of milk, I think that 
that is not the right conclusion to draw from this at all.
    Just last week, a CBP inspector in New York inspected a 
cargo and found 138 pounds of heroin. Now, the easy and obvious 
thing to do if you are a CBP inspector in those circumstances 
and you do not trust ICE is to say, ``I will find the stuff. I 
will declare it. We will get credit for having found 138 pounds 
worth of heroin.''
    But that is not what he did. Instead what he did was call 
ICE and say, ``Here it is. I am going to put it all back, and 
when people come to pick it up, I want you to follow them.'' 
And that is exactly what he did. That allowed ICE to bust far 
more people who were involved in the heroin smuggling than 
otherwise would have been the case.
    Now, think about that from the CBP officer's point of view. 
One, he has to give up the sole credit for identifying the 
drugs.
    Mr. Meek. Mr. Secretary, thank you for that example. I know 
that is an exception to the rule that we read in the report and 
what the officers tell me of their concerns and issues with the 
fact that we have two agencies pretty much doing the same 
thing, and we can break down the competition and duplication of 
investigative actions, or lack thereof, if we were to come 
together.
    For the life of me, for an agency that has pulled together 
22 legacy agencies, to break down, because the answer cannot be 
in the second-stage review, which I have read, everything 
reports directly to the secretary or under secretary.
    Answer, what is the problem after that? I would feel a 
little bit more comfortable if it was not the borders. I would. 
I would say, well, you know, they will get around to it. That 
will be fine. It is an in-house thing.
    But it is beyond an in-house thing because we see the ball 
dropping in the middle and it is example after example, and we 
are getting hammered and the department is getting hammered. So 
it is our job and it is your job to make sure that we do what 
we are supposed to do.
    I do have a second round of questioning. I do not want us 
to get too much off of our time. Maybe we can have a little 
better exchange next time. Thank you.
    Mr. Rogers. I thank the gentleman.
    The chair now recognizes the gentleman from Indiana for any 
questions he may have.
    Mr. Souder. Thank you.
    I want to thank the inspector general for the report, which 
more or less to some degree was stating the obvious. It does 
not take a rearview mirror to see that there were going to be 
problems with this. Quite frankly, when you are trying to get 
past a problem like terrorism or narcotics, I prefer to be in a 
car where somebody checks the rearview mirror. History may not 
be exact, but often it rhymes.
    In looking at the structure of this, I raised concerns 
about this from the time of the creation of the Department of 
Homeland Security in on the ground. I want to say that I think 
much of what you said is absolutely true. It is cultural. 
Anytime you merge an agency, you are going to have divisions. 
If we looked at the Department of Defense when it was first 
merged or how we did the Joint Chiefs, you are going to see 
different types of problems.
    I would argue that to some degree this is cultural, but you 
have some structural underneath problems that have been kind of 
attempted to be ignored, some of which are financial. The 
deportation questions, the detention space questions, the 
number of agents you have on the border, all that may be 
related to just that we have played this shell game where we 
will have a border emphasis for a while, and then a deportation 
emphasis. We have to face up to the fact and try to do multiple 
things.
    But when I bring to the table, and I have been tracking the 
drug issue long before 9/11, and the Department of Homeland 
Security, even more so than DEA which is targeted for drugs 
particularly, but you have more agents that have more to do 
with 20,000 to 30,000 people dying a year of illegal narcotics 
in the United States. In trying to chase the occasional 
terrorist, we cannot forget that this is constant terrorism, 
terrorizing families all over the United States.
    You have critical departments in your agency that, under a 
merger, would have had a logical place, but illustrate the 
depth of the problem. One is the Air and Marine Division. The 
concept of the Border Patrol agency is a picket fence. We have 
had this debate for years between the Customs people and the 
Border Patrol people.
    I have been with the Customs people actually in undercover 
things where they have evaded the Border Patrol people because 
sometimes the picket fence concept will take down a case, as 
you referred to like heroin, that needed to get through and set 
up a broader one, and we have not had that kind of 
coordination. Theoretically, we need that kind of coordination.
    But when you are doing a drug case, by definition there is 
not a picket fence. The Air and Marine Division is down in 
Colombia. Can you guarantee me that by putting them under a 
Border Patrol agency that you are not going to reduce the hours 
that we need in the P3s in Colombia? What about the transit 
zone? If we cannot control the transit zone in the Caribbean 
and the Eastern Pacific, our whole drug war falls apart.
    We are spending millions of dollars at the grassroots 
level; billions of dollars trying to fight illegal narcotics. 
But if you all of a sudden take the Air and Marine Division, 
which in fact you have done, and rather than having it be a 
fungible division that goes all the way from Colombia, the 
Caribbean and the Eastern Pacific, and then in the United 
States, and try to say either you are ICE in investigations or 
you are Border, it does not fit. There is no where to put it.
    As a result, what you have had to do is stick it under one, 
then debate whether it is going to go to the other. You have 
Air Force pilots who have done this for 20 years. They come 
into Homeland Security or Customs agency, and now you are 
telling them they are going to report to a Border Patrol 
person. It is not going to work. They are just not going to 
sign up. You are going to gut one of the most effective 
agencies in United States history.
    Then we get to the Shadow Wolves. Here we have a huge 
problem on the southwest border, as well as up in upstate New 
York, where we have a history of Customs problems in the Indian 
nations, which often do not even recognize an international 
border. They are on both sides. We have one group, the Shadow 
Wolves, who were constructed by Mr. Bonner years ago, and they 
are fungible. They sometimes go work with the Mexican 
authorities; sometimes they do investigations; sometimes they 
are on the border. Then they say, ``Okay, you are going to be 
CBP and you are going to line up and be like a traditional 
border patrol agency.'' It does not work.
    Theoretically, you could have the two divisions merged and 
still have your different ways to do it. And then it is even 
more exaggerated in the intelligence stuff because now the 
Border Patrol want to stand up this sub-intelligence agency 
because they are looking for different things. So while 
theoretically these stovepipes can be connected, because of 
your internal structure, instead of consolidating intelligence, 
we have actually proliferated intelligence.
    Now, nobody is arguing that you are not going to have 
divisions inside a merged division, but you would not have in 
some sub-parts of your agency this artificial, illogical 
division between the Investigations Division and the picket-
fence border-type thing. It does not take a rearview mirror. It 
does not take an advance mirror. It does not take any rocket 
scientists to say, look, there are exceptions to this, and 
either you need to accommodate the exceptions or you need to 
restructure your agency. Thus far, you have not effectively, in 
my opinion, been able to deal with this.
    What we have seen as a practical matter, you are getting 
more seizures at the border, but what you talked about, just 
because we are stopping more people; we have more people on the 
border. It is not because of any advances in the department. In 
fact, in the department you have gone backwards.
    Take the heroin case. I find it a bit offensive on behalf 
of the Border Patrol historically to say that they would have 
not turned that case over; that in fact, they might have gone 
to DEA; they might have gone to legacy Customs. That is not 
something that is new because of the way you structured your 
agency to put it back in the car. That was what they were 
supposed to do a long time ago, which was to check. We need to 
work for that kind of division, but I do not think that is 
because of your new merger.
    So if we get to have some more questions, I will, but I 
wanted to raise those to your attention. We have not had the 
chance to talk yet, but this is something that some of us have 
been raising even from the time this agency was merged; how 
were you going to address this kind of diverse agency you have, 
and do not forget about narcotics, while you are trying to deal 
with terrorism.
    Mr. Baker. Thank you. I particularly appreciate your 
remarks with respect to the Border Patrol because I agree that 
their conduct with respect to narcotics cases is not the result 
of a recent merger or the changes in the organization. It is 
longstanding MOUs with the DEA and others.
    I would say about Air-Marine operations that they are an 
immensely valuable resource, and I think last year probably set 
a record for interdiction, so something is still working and 
working very well.
    That is one reason why I do not think, to use 
Representative Meek's analogy, that this is spoiled milk. There 
are many stories of things that go wrong, but they are by and 
large exceptions and we remember those stories and they get 
repeated precisely because they are exceptions. I do not think 
that the story of what happened in New York with 138 pounds of 
heroin is an exception. It is the rule. A lack of cooperation 
is the exception.
    Mr. Rogers. I thank the gentleman.
    The chair now recognizes the gentleman from Texas, Mr. 
McCaul, for any questions he may have.
    Mr. McCaul. Thank you, Mr. Chairman.
    In this case, we have a disagreement, I guess. The IG comes 
forward with a report advocating a merger and then the 
department comes out and says, no, we disagree with that. A 
merger would produce, and I am quoting, ``a protracted period 
of organizational turmoil that is unnecessary to achieve the 
coordination necessary between the two agencies.''
    If this has already been asked, I apologize, but obviously 
our biggest goal post-9/11 is coordination and sharing of 
information and communication interoperability. The sharing of 
information and intelligence is the key to our success. 
Stovepipes should be a thing of the past.
    So I throw this question out to you, for Mr. Ashbaugh, do 
you believe that this kind of turmoil would occur if there was 
a merger? And the same for you, Mr. Baker. And which of these 
two scenarios better facilitates the coordination and sharing 
of information and intelligence?
    Mr. Ashbaugh. I think that we seem to be in agreement that 
ICE and CBP need an integrator; that there is work yet to be 
done to push these two organizations to working more 
effectively together. The difference has to do with whether or 
not the integrator is down in a single organization, and ICE-
CBP-merged entity, or whether it is elevated to higher levels 
within DHS.
    If you were to take, for example, the question of the 
Border Patrol and whether or not it should enhance its 
investigative capabilities in some way, in order for that 
decision to be addressed by DHS, it would have to involve the 
commissioner of ICE elevating the issue and the commissioner of 
CBP responding to the issue. It would work its way up through 
the chain. It would go through the Secure Border Initiative, 
and then through the Office of Policy. There would probably be 
a simultaneous referral to the Office of Operations 
Coordination, and eventually it would go to the deputy 
secretary and the secretary.
    What we were proposing that that kind of decision would be 
hashed out down at what I will call the merged ICE-CBP level, 
sitting across the table with people who are conversant on a 
day-to-day basis with what is involved in it.
    As to whether or not accomplishing this is going to result 
in turmoil and churn, the answer is yes. Any kind of structural 
reorganization and change of this kind is going to breed some 
uncertainty among the personnel as to what their new lot in 
life might be. It will also generate some confusion with 
respect to who is responsible and accountable for implementing. 
But I do think that in the long run, it is very, very important 
that we achieve that level of accountability, and the more 
agile choice-making that underlies our proposal.
    When we looked, and you will see in the report that one of 
the things that we tried to do at the outset of this was to 
understand how the government came to the structure that we now 
have. We could not find a clear statement of mission or 
explanation for how ICE and CBP arose to their present 
condition. We could find much more information with respect to 
CBP and One Face at the Border, than we could with respect to 
ICE.
    The question that was part of that effort was whether or 
not the current situation is entitled to some deference because 
of the way it got there and because of the thinking that led to 
it. What I am saying is that in our part of that review, we 
really could not find a coherent justification for how we got 
to where we are. The argument seems to be in large measure that 
the organization that we have is the one that we should keep, 
and that changing it is going to create so many disincentives 
that we should not address them.
    Honestly, there will be turmoil. As I said, there will be 
loss of productivity, but at the same time I believe that the 
turmoil will not be as great as the department is 
characterizing it. There is a considerable amount of goodwill 
on the part of the employees of ICE and CBP in support of a 
merger that would help a long way in making it successful, and 
that what we are talking about is restoring, not recreating, 
not inventing, but restoring processes that many of the legacy 
employees still remember and know how to accomplish.
    So yes, there is a cost, but I did think that that is not 
the end of the debate and that we really do have to consider as 
well whether or not to go forward.
    Mr. McCaul. So in your judgment, a merger would streamline 
the bureaucracy, enhance communication flow, and overcome some 
of the bureaucratic obstacles?
    Mr. Ashbaugh. No, it is not a silver bullet. It is not 
going to solve some of the traditional problems that we saw 
with INS and Customs back when they were legacy agencies, but 
we do think it would rationalize and render accountability with 
respect to the important choice-makings that are associated 
with trying to make this operation work.
    Mr. McCaul. Mr. Baker?
    Mr. Baker. We would lose a year in the effort to control 
the border as people struggle with the question of, well, who 
do I work for, and what the badge looks like; what kind of 
uniforms are we wearing; who do we work for. Those sorts of 
questions would, as they did in the period that helped cause 
some of the problems that the inspector general has identified, 
cause great uncertainty and, as I think the inspector general 
recognizes, cause a lot of turmoil.
    He hopes that it would not be too bad, but in fact I do not 
think that the Inspector General's report really looks at that 
question. It simply says, well, it might not be as bad as you 
fear because people still have goodwill. But I think that 
goodwill is part of what we count on, too, to make the smaller 
changes, but essential reforms that we are making work. In the 
next year, that is much more likely to produce results than 
starting yet another organizational mess.
    So our view is that you need to start on the smaller 
reforms now. On the question of information-sharing, I have no 
doubt that information-sharing is going to be handled better 
for the short term and for the long term under the kinds of 
reforms that the chief intelligence officer is planning for the 
department than under a reorganization. I say that because it 
is important for ICE and CBP to be sharing intelligence, but it 
is also important for ICE and the Coast Guard to be sharing 
intelligence. It is vitally important for TSA to be sharing 
intelligence about suspect passengers before they arrive at the 
customs desk.
    We need an intelligence-sharing architecture that covers 
the department. Saying, ``Well, we will get intelligence-
sharing by sticking parts of the department together and 
letting them share,'' is not a solution.
    Mr. McCaul. Thank you.
    Thank you, Mr. Chairman.
    Mr. Rogers. I thank the gentleman.
    You made the characterization that we would be starting 
another organizational mess if we were to merge these back 
together. It seems like we have an organizational mess by the 
separation of the two agencies and we would be remedying it by 
setting it back together.
    Once again, you use the one year that it would set us back. 
I still do not understand how you come up with that idea--that 
it would set us back a year in securing our borders if we did 
this. Tell me specifically, other than who you would report to.
    I think an organizational chart remedies that; who you work 
for and what the uniforms are. How would we be set back a year?
    Mr. Baker. During the period in which the organization is 
being structured, people will of course be doing their jobs as 
they understand them, but it will be very difficult to try 
creative new things because they do not know who is in charge; 
they do not know what the rules are.
    Mr. Rogers. But you acknowledge what we are doing now is 
not working.
    Mr. Baker. I do not. I am sorry. I do not mean to say that 
it is not working. I am troubled by the stories that the 
Inspector General collected. Those are stories from a 
particular point in time and they are the reflection of ICE's 
very substantial budget difficulties, which made it difficult 
for them to meet all the needs that CBP had. They are the 
result of a lot of confusion arising from the reorganizations 
that had already occurred.
    Those things are sorting themselves out. If we let them 
sort themselves out and address the individual problems as they 
arise, we are much more likely to come to a stable, workable, 
properly functioning system than if we say, ``Oh well, I just 
want to throw the milk out and start over again.''
    Mr. Rogers. By what point in time? When do you think we 
will have that circumstance corrected and we will have a finely 
tuned, well-running machine?
    Mr. Baker. Well, this is the federal government, so we will 
have a properly functioning mechanism for handling detention 
and removal within months.
    Mr. Rogers. Three months, six months, nine months, 18 
months?
    Mr. Baker. Six months. I believe that we will get the--
    Mr. Rogers. How about the intelligence gathering and 
sharing?
    Mr. Baker. We are already doing a better job there. Again, 
I believe that we will have substantial improvements in that 
within the year.
    Mr. Rogers. Okay.
    Mr. Ashbaugh, you talked about three options to consider, 
and you came down on the third option, mainly because the first 
two were eliminated by the Second-Stage Review. Isn't that 
true?
    Mr. Ashbaugh. I am sorry. No. The other two options were 
not eliminated from our consideration.
    Mr. Rogers. But for all practical purposes, through the 
Second-Stage Review, he was removing those two options from the 
table, wasn't he?
    Mr. Ashbaugh. I am hesitating on how to answer your 
question. I do not want to suggest in any regard that--
    Mr. Rogers. I am trying to discern whether or not you 
endorsed a merger because it was the only real option for you.
    Mr. Ashbaugh. No. We considered all three of the options 
fully.
    Mr. Rogers. Well, why were you limited to just three 
options?
    Mr. Ashbaugh. I guess it is because those were the only 
options that either had been suggested to us by the people that 
we spoke to or that occurred to us on our own. There were other 
options. For example, we could have suggested reverting to the 
precise structure that was set forth in the Homeland Security 
Act, which really was a return to the old separate, autonomous 
Customs Service on the one hand, and INS, minus immigration 
benefits on the other. We would not propose that.
    One of the things that we did consider and we strongly 
endorsed was the effort at eliminating some of the stovepipes 
associated with the creation of CBP's initiative of One Face at 
the Border. So there were a number of different choices, I 
suppose, that we made, but the three that we focused on are the 
ones that are described in the book.
    Mr. Rogers. Let me, and I know my time is about up, but do 
want to kind of focus on this timeline. You said that you spent 
seven months and interviewed over 600 people in this audit that 
you conducted. When were those interviews completed? I know 
that your report has been embargoed until today, but when was 
that product completed?
    Mr. Ashbaugh. We had a rough draft which we gave to the 
secretary before his 2SR decision in I believe perhaps late 
June, but the formal draft, the first draft went to the 
department on July 20 or thereabouts.
    Mr. Rogers. Okay. My time is up. I look forward to my next 
round.
    The chair now recognizes the gentleman from Florida, Mr. 
Meek.
    Mr. Meek. Thank you very much, Mr. Chairman.
    Secretary Baker, I have some of the same concerns that the 
chairman has as it relates to the magic number of 1 year. Maybe 
that will go along with the sour milk comment, but I can tell 
you this, I am quite concerned. I am someone who has worn a 
badge before in my professional career and I know the kind of 
walls that are built between law enforcement agencies as it 
relates to investigations in cases.
    When I say I smell a 9/11 coming on, I can see the same 
ingredients that I read in the 9/11 report, that I am pretty 
sure if you go to the FBI or the CIA, they said, they, you 
know, we have a remedy for that; we recognize that that is an 
issue, and we are working on it.
    The bottom line is that, like I said, it would be okay if 
it was not dealing with national security at the borders. If we 
have one agency thinking that the other agency is following up 
on a case, that is a problem. I just want to just share with 
you, just as one member on this committee, and I do not think 
this is a Democratic view. I think this is a bipartisan view 
that something has to be done, more sooner than later.
    And just having the department say, you know, we have put 
in mechanisms to make sure that this does not happen, and then 
it happens, I take great responsibility for what happens in the 
department and around the department, especially when I sit on 
this subcommittee and I am supposed to push the cards.
    So there will be some amendments or amendments that the 
department is probably going to have to lobby against on the 
committee because every time we get the opportunity, we are 
going to take these inspector general reports and what we know 
from what we read in the paper and what we watch on the news of 
the problems with the department as it relates to management, 
and try to put them into action. I do not think that is 
personal. I think it is the business of making sure that we 
protect the American people, even though I know the department 
feels that way, too.
    I do feel very strongly that we can merge. I feel we can. I 
do not feel it would take a year. I feel that agencies, law, 
men and women, can come together, especially as it relates to 
the frontline folks. I do not know how the brass feels about it 
in both agencies because they may, someone may have to take a 
lower rank or a higher rank, or attrition may make it all come 
together. But to say that it is going to set us back a year as 
though we are in the business of protecting the homeland for 
the next 5 years, this is something that is going to go on 
forever. I think it will be able to help us.
    You answered one of the questions that I had for my second 
round as it relates to information gathering, but I guess, Mr. 
Secretary, how would you, looking at this inspector general's 
report, and I want to say thank God for the inspector general. 
They are supposed to look at you in a way that will improve the 
department. Sometimes it is not necessarily politically correct 
to scrutinize the department, but you know, let's thank God for 
the career service and members of Congress like myself who see 
that kind of activity and call foul.
    I think it is important that we respond in a better way to 
what the inspector general is saying, versus the second-stage 
review has taken care of this, or we feel that there will be 
improvements. Will there be some sort of report? Are you all 
thinking about a report of saying, okay, we know that there are 
members on the Hill that would like to see us put together. I 
have already gotten the message in my office that you all are 
against the merger. The White House is against the merger.
    So if you get things lay the way they are here in 
Washington, it is pretty much a done deal that it is not going 
to happen. But there are some members of Congress that are 
concerned about it.
    What are some of the reassurances that you all want to put 
into place outside of saying, ``Well, whenever you all call us 
back to the Hill, we will report on our improvement''? Will it 
be an inside report or will it be an evaluation by your policy 
shop? Or will it be something that the secretary will do in a 
written report to members of Congress in answering the 14 
recommendations that the inspector general has made, or the 
three points that we continue to talk about here at this 
meeting?
    Mr. Baker. Thank you, Representative Meek.
    I feel the same way about the Inspector General report. 
They are not always easy reading, if you are in charge of the 
organization, but it is very important to have the truth told 
to you about problems in your organization. We do not happen to 
feel that the Inspector General devoted a lot of time to 
deciding what the consequences of particular options would be, 
but the focus on the difficulties that were faced earlier in 
the year in ICE and CBP is a very valuable thing.
    In terms of what we would be proposing to do, in the first 
area of detention and removal, we propose to have not just a 
program office, but a substantial number of metrics that we 
will be using to manage detention and removal, and to look for 
the kinds of deterrent effect that we hope to have. There is no 
reason why a summary of what is happening, using actual metrics 
to try to measure the results of programs cannot be made 
available.
    Mr. Meek. I am a couple of seconds over my time. I heard 
the chairman saying we will go a third round, which I know you 
are looking forward to. I am going to yield back the balance of 
my time, what is left.
    Mr. Rogers. I thank the gentleman. I would backup what he 
said, that our concerns about the current status are 
bipartisan. It is not a Democrat or Republican perspective.
    The chair now recognizes the gentleman from Indiana for 
additional questions.
    Mr. Souder. Mr. Baker, it is kind of disturbing because you 
stated twice in some detail to the committee, which I find 
fairly disturbing, that the reason you do not want to revisit 
this is because you are worried about the time in deciding on 
uniforms and selecting logos.
    I am not asking for you to spend a whole bunch of time 
digging out documents and so on, but I would appreciate it if 
you would respond back to the committee approximately how many 
man-hours were spent on determining the logos and the uniforms; 
whether it is 100 hours, 2,400 hours, 24,000 hours.
    We have the ability to ask for meeting documents and all 
that type of stuff, but that is not a good exercise of our 
time. But I would like to get an idea of how much time you 
actually spend on this type of thing, because if it is just a 
couple of days, we can afford that. If it is a waste of time, 
actually they can just keep their old uniforms. But twice you 
have raised that, I am sure symbolically more than anything 
else.
    Mr. Baker. Yes.
    Mr. Souder. But in fact I know in the department there was 
a lot of consternation about what they are going to look like 
and how to do that. We want to make sure, and that is why I 
would like to have some kind of an estimate actually for the 
record, just an estimate, because we do not want to spend a lot 
of time on that.
    At the same time, that is not what this is about. It is not 
about whether they are going to have to change their logos. We 
want to have the best and most secure system possible. If 
necessary, we will ask some of our staff to design new logos, 
then you will not have to worry about that.
    Were you aware that this committee under former Chairman 
Cox within the first year at a Republican members meeting voted 
unanimously to merge these two divisions back together almost 
immediately, and that we immediately have bipartisan support? 
Were you aware of that before Secretary Chertoff even came in 
under Secretary Ridge that the members of the Homeland Security 
Committee almost from the day we were organized unanimously 
opposed this?
    Mr. Baker. I am aware that this has been a prospect and an 
issue that has been seriously examined several times and has 
substantial support. I would suggest, and you are quite right, 
I was speaking symbolically. There are many costs to a merger 
and the costs grow and the benefits diminish as time goes on. 
So I think it would be unwise at this point to take an action, 
even if it might have been a good idea 1 1/2 years ago.
    Mr. Souder. When we raised it, we were told that, well, 
give it a chance and see if it is working. We have continued, 
on the Republican side and on the Democratic side, to feel that 
it is not working. And then Secretary Ridge said, well, there 
is going to be a new secretary. Then we got a new secretary and 
we were told to hold off, not to pass the legislation, again 
which had bipartisan, basically unanimous support on this 
committee; that we should wait until Secretary Chertoff was 
going to do a review.
    Then he did a review which we disagreed with. It was 
supposedly going to be in this bill. Actually, it was in the 
original mark-up, and Secretary Chertoff first called this 
committee, calling anybody he could get a hold of, then called 
the leadership to ask it to come out.
    What we see is a continual pattern here of basically a 
clear position in the United States Congress. It is not new. It 
is not something we just came up with. It is something that we 
have had in a bipartisan way, those of us who have worked with 
this for a long time. And it is kind of hard to understand the 
intense opposition of your agency when so many people from such 
diverse backgrounds, from border States and non-border States, 
it cannot be argued, oh, we are just representing the unions. I 
don't represent the unions. I do not have any border people. I 
am in the inland part of the country.
    I am interested in trying to make this work, but what I 
have seen is that the concept of what you are trying to do is 
to take and have a border and then do the investigations and 
separate it. It is like horizontal management, when in fact the 
challenges are more vertical. Here is the terrorist coming 
through; here is the contraband like narcotics coming through; 
and here is illegal immigration. The seamlessness has to go 
with the different challenges that are coming at the border. It 
is not like it is going across the border and you structure it 
from a management standpoint an agency that is like this, when 
your challenges are really vertical challenges.
    Okay, we have illegal immigrants coming in. Are we going to 
deport them? How are we going to handle them? A percentage of 
those illegal immigrants are potential terrorists. How are we 
going to handle them and what agencies are they going to be 
handed-off to? How do you relate to the FBI? How do you relate 
to the terrorist organizations?
    You have another cluster of contraband, some of which is 
Department of Commerce-related, if they are bringing things in 
that break the intellectual property rights of manufacturers in 
my district. That is one type of challenge. If it is drugs, it 
is another kind of challenge; whether you are working with DEA, 
it is another kind of challenge. And then you have this whole, 
they are coming in from Colombia into the Eastern Pacific, and 
then into Mexico; then they are popping up to the border; then 
they are moving on in a seamless drug thing, and we have these 
arbitrary things where you have to negotiate. Okay, we are 
going to hand this to ICE; we are going to hand it to DEA; and 
there is not somebody over in a logical, and my background is 
management, in a logical management structure.
    I understand what you are trying to do. The reason I went 
through that brief history is I believe the reason the 
divisions are there is because we had some disagreements in 
Congress in the creation of the Department of Homeland 
Security. One was we were not dealing with deportation and 
illegal immigration. Because of that, the Judiciary Committee 
lobbied aggressively to make sure that ICE could stand strong 
so that we could try and address that question. But your 
structure is based on a historically irrelevant argument at 
this point, because we are all trying to figure out how we are 
going to deal with work visas, with deportation, with more 
detention centers, and no longer is that part of the 
immigration structure going to be ignored.
    I believe your artificial division, if you look back on it 
historically, was based on that debate, which is now 
irrelevant, and your structure that you are trying to defend, 
understanding you had a lot of blood spilled on the ground to 
get to where you are, and I understand that is based on a 
premise that does not exist anymore.
    From the pure management analysis, which the inspector 
general went in going, why did you do it this way? It has 
actually led, and is going to lead, to more duplication and 
logical stovepiping. Quite frankly, it is going to lead to 
logical stovepiping, the way you have it, because of this 
multi-mission at the border and the multi-mission inside ICE. 
By definition, you are going to have stovepiping because it is 
not stood up right.
    I would be interested in your response.
    Mr. Baker. I think that, first, I was not around for the 
creation of this particular organizational structure. I am not 
familiar with the details of that history. But I think the 
response that you have gotten, the reluctance to make this 
change is a reflection of our direct experience with the costs 
of major organizational change. It really is a staggering cost 
and it will set us back very substantially, a year or more, in 
our effort to control the border if we have to go through the 
wrenching changes that will come with that. It is, of course, 
not choosing the logo. It is a question of defining the 
mission, defining the jobs, choosing the people, setting the 
culture.
    Last point, with respect to whether ICE is an appropriate 
organizational structure, there really is quite a bit of value 
in recognizing that ICE is among the largest law enforcement 
organizations in the country, and building it around the 
culture of law enforcement, of knowing how to make cases and 
how to do evidence chains, and how to work with prosecutors. 
Those are things that law enforcement agencies treasure and 
select for and teach everyone inside their organization to do. 
Having a consistent culture that values all of those things has 
great value for the country.
    Mr. Rogers. I thank the gentleman.
    Mr. Ashbaugh, a little while ago you heard reference made 
to the fact that several changes have been implemented that 
have made significant progress from the time you completed your 
interviews to date, to improve those 14 deficiencies that are 
outlined in your report.
    Did you note in your report or your investigation and your 
interviews any management machinery being put in place that was 
in fact going to remedy those in the short term? I would think 
the last five months would be a short term.
    Mr. Ashbaugh. Would you repeat the last part of the 
question?
    Mr. Rogers. Did you note any management changes that were 
being implemented or discussed or presented that were going to 
remedy the 14 deficiencies that you found in these two 
entities?
    Mr. Ashbaugh. We are leaning in the direction of changing 
it. I will try and answer it this way. With respect to 2SR 
itself, the report was not able to assess the potential or the 
achievements associated with it. It was too inchoate at that 
point. There was, for example, a significant management meeting 
in March of 2005 in which they discussed some of the specific 
issues relating to the decline in referrals from CBP to ICE and 
other things of that sort, but we were not able to assess the 
consequences or the results of it.
    So I would have to say, I do not want to say that the 
answer is no. The fact of the matter is that the department 
since January of 2003 has been improving in its efforts at 
management. It has been a lengthy process, rather than 
something that could be confined to the last 5 months.
    We have tried in the report to give credit for some of the 
achievements. For example, there is an MOU that was an effort 
to relate ICE and port-of-entry issues, and to integrate and 
better coordinate those two. So there have been activities all 
along, but we are not in a position yet where we can assess 2SR 
per se.
    I do want to reaffirm our intent to do that as we go 
through the examination of the 14 recommendations and the 
follow-up on that.
    Mr. Rogers. You heard Mr. Baker indicate earlier that he 
acknowledges the 14 recommendations; that those symptoms do 
exist. But he went further and said that it does not seem that 
the IG spent a lot of time looking at what the consequences of 
a merger would be. Do you think that is an accurate 
description?
    Mr. Ashbaugh. I am sorry. Would you repeat the question 
again?
    Mr. Rogers. What the consequences would be; you recommended 
a merger.
    Mr. Ashbaugh. The costs?
    Mr. Rogers. My understanding of Mr. Baker's assessment was 
that when you said in your report, we think a merger is in the 
best interest, that you did not look at or consider the adverse 
consequences of that merger. Is that an accurate assessment?
    Mr. Ashbaugh. Oh, no, it is not an accurate assessment. 
With respect to costs, we were clearly frustrated over our 
inability to get good data from the department that we could 
try to reverse-engineer to come to some kind of calculation on 
what we had spent already. But fundamentally, our assessment is 
that this is a change that would be very beneficial to the 
department, and we do not see an adverse consequence to it.
    Mr. Rogers. Okay. This is my last question, the one you 
have been looking for, for Mr. Baker.
    You indicated, not you but Mr. Ashbaugh indicated, that 
they never were able to discern through their interviews or 
investigation the essential reason why the two agencies were 
separated. In reviewing the history of the entities that you 
now have supervision over, do you know in essence why they were 
separated, why ICE and CBP were separated?
    Mr. Baker. I was not here for that and do not have any 
personal knowledge of that.
    Mr. Rogers. Thank you very much.
    The chair now recognizes the gentleman from Florida, Mr. 
Meek.
    Mr. Meek. Thank you, Mr. Chairman.
    Mr. Baker, still, I guess I want to go back to first-base 
again, if that is okay with you, coordination of apprehension, 
detention and removal operations; coordination of investigative 
operations; and coordination of intelligence activities.
    Now, that is the bread and butter of law enforcement, just 
in those three categories. I asked you in the last round of 
questions, will there be some sort of written report to members 
of this committee and to the full committee on addressing the 
issues that were pointed out in the inspector general's report.
    The reason why I asked that is not because someone wrote it 
down and said you need to ask this question. I am asking this, 
being an experienced member now on the select committee, and 
now on this standing committee, and being a member of the Armed 
Services Committee, you know, it is almost like, boy, I am glad 
that hearing is over.
    Because I am going to tell you right now, Mr. Secretary, 
you have a real job cut out for you defending the department's 
position on this. It is not just a report. It is what we read 
in the paper. It is with the officers we talk to. It is very, 
very difficult to defend.
    Like I said, this is a bipartisan feeling. If something 
comes to you, and you say, you know, I should do this as a 
policymaker, and then the agency says, no, we are taking care 
of that. I think we just recently a couple of minutes ago have 
gone through the timeline of how many times we were put on 
pause. I even feel funny as a policymaker speaking to an agency 
person and saying, well, can we? Because it is not an ``ask'' 
kind of situation.
    That is the reason why I am trying to work with members on 
this committee in a bipartisan way of taking some action. I 
believe the only way we are going to get to where we need to 
get to, looking at the three things I just pointed out, leave 
alone the possible cost savings that may happen out of this 
that was not addressed in the inspector general's report, I 
would point out. But you are automatically saying that there 
will be costs for the merger.
    Anyone knows that streamlining law enforcement agencies, 
especially when they have similar functions, will be able to 
help resolve many of the issues that are in the report.
    So I guess I would go along the line of, and I am going to 
ask the question again, and maybe you can answer it a little 
better: Will there be some sort of, to the 14 recommendations, 
a written progress report from the department on the progress 
in those areas, or in the three areas that were addressed here 
at this committee meeting, especially dealing with the issues 
of detention and removal operations and intelligence 
activities, coordination of it. I think that is important. I 
really think that is important for the reason why we are here 
today.
    And investigative operations, you do not have to be in a 
law enforcement agency to know that there is going to be 
competition between two agencies. I mean, it is just like a 
human thing. It is going to happen. Oh, we are not going to let 
them do this; we are going to do it. I mean, that is just the 
way it goes. And it is very innocent. Everyone that wears the 
badge and everyone that wears and ID with a security clearance, 
their number one job is to protect Americans.
    But looking at the overall picture, that is not happening 
under an atmosphere of competition. You just cannot say, well 
you know, you all go out there and play. I would not say 
``play,'' but you all go out there and do your job and we 
expect that everyone is going to be a grownup when it comes 
down to the final analysis, because they all have to report to 
who, the secretary and the Congress about what they are doing 
to justify their funding.
    So when we see the lack of communications here, and the 
lack of management in some areas, you may say that they are 
addressed, but it is a very, very difficult position to defend. 
I know you have your legislative team on the Hill, but I do not 
know about the chairman, and I do not know about the other 
members of this committee, but I want to work with the 
department. That is my job, to help the department in any way 
that I can.
    But when I feel the department is more interested in 
management the way we see it, versus what the inspector general 
sees it, or the American people see it, then that is when we 
start having a rub. I believe we are starting to rub right 
about now. I do feel whenever the green light is given to all 
members of this committee that it will happen and it will not 
be an ``ask'' kind of situation.
    So I guess this is more of a statement, Mr. Secretary. I 
would not ask you to respond. I think you have tried to respond 
to some of the issues, but this is a very, very difficult time 
for all of us. Once again, I am going to state that I know that 
there will be an amendment that will come forth in coming days 
to germane bills to try to make this happen. I hope that not 
only a good discussion comes out of it, but good action comes 
out of it, and the department can find a way that it can be a 
part of something good in helping us to be able to all manage 
this Department of Homeland Security and make it better than it 
is right now.
    So I look forward to the coming days. I look forward to 
hopefully some re-thinking in your shop and also with the 
secretary as it relates to this, and I believe the White House, 
too, because it is important that we show the American people 
that we are trying to do all we can to protect them. Some of 
the statements that are made here and there may not be what we 
want on the billboard, but I think that we really are going to 
have to work hard in the coming days.
    So I am imploring with you and with the department to find 
a way to be for streamlining and integrating those three points 
that I have pointed out, the investigative, detention and 
removal, and information and intelligence activities. Or we 
have a recipe for something bad to happen in this country. You 
do not want to be a part of that, and I definitely do not want 
to be a part of it. No one wants to be a part of it. So let's 
start working together on this.
    Mr. Baker. I would be delighted to work together with you. 
We do want the same thing. We do want to fix the problems. I 
would suggest that as you think about what should be done, you 
might take a look at the 20-page response that we wrote to the 
Inspector General in which we did not argue that they were 
wrong about a lot of things, but we pointed out a lot of things 
that simply had not gotten recognized where there was good 
cooperation; where there was good coordination; there was good 
intelligence-sharing.
    Mr. Rogers. I thank the gentleman for yielding back to the 
chair.
    I recognize the gentleman from Indiana for another round of 
questions.
    Mr. Souder. Thank you very much, Mr. Chairman.
    Mr. Rogers. I am sorry.
    Ms. Lofgren, she has been sitting here for a while, if you 
do not mind.
    Ms. Lofgren. Thank you very much.
    I will just say I have learned in the Congress how 
unsatisfactory are the words ``I told you so.'' When these 
measures were considered, we had a very spirited debate in the 
Judiciary Committee about the division. Those of us who have 
been around the immigration subject for several decades 
suggested that everything in the inspector general's report 
would happen, and in fact it has.
    I think that the easiest way to solve it is to undo the 
division, frankly. I am hopeful, it is certainly not Secretary 
Chertoff's fault it was divided. The Congress did it, not the 
secretary and not you. I think that we ought to be partners in 
fixing it.
    It is not, in my judgment, just, well, take for example the 
issue highlighted on detention space. That is predictable since 
the ICE does not have ownership. But it is not just detention 
space. It is a whole system. We lack adjudicatory power. That 
is aggravating our detention space because we do not have 
enough administrative law judges to process the cases, which by 
the way would be lots cheaper than actually doing the full 
amount of detention space that is predicted.
    I am not saying we do not need it. We do need additional 
detention space, but not as much as is predicted, if we 
actually had the administrative law judge power to adjudicate 
cases promptly. So unless one agency has ownership of the whole 
thing, it is going to be second-best in terms of coordination.
    I am wondering, Mr. Ashbaugh, I think this was beyond your 
scope, but if you could enlighten us on what you found in terms 
of coordination. I suggest that if we are going to do a 
Department of Homeland Security that we ought to throw in 
consular services, visa issuance, along with it, because talk 
about a disconnect between what is going on, and that was very 
much resisted by the then-secretary of state, Mr. Powell, and 
ultimately was not included.
    Did you have a chance to look at that interface as well?
    Mr. Ashbaugh. To look at the overseas operations of 
Homeland Security and the visa security program?
    Ms. Lofgren. Yes.
    Mr. Ashbaugh. Not as part of this review, no we did not. 
There simply was not enough time to go into an overseas kind of 
examination. But I would be remiss not to remind you that our 
office has done several reviews over the past 1 1/2 years with 
respect to the visa security program, with respect to the visa 
waiver program, with respect to the initial pilot in Riyadh.
    Ms. Lofgren. Right.
    Mr. Ashbaugh. And also with respect to the problems 
associated with stolen and counterfeit passports, and their use 
to enter the United States.
    Ms. Lofgren. Let me do a follow-up question, if I may then. 
It has to do with the use of technology. All these departments 
are, ``crippled'' might be too strong a word, but maybe not, 
with the lack of cutting-edge technology that would allow them 
really to utilize the information that is available somewhere 
in the system, not necessarily at the port-of-entry where they 
are.
    Did you have an opportunity to assess technology deployment 
and usage as it relates to coordination?
    Mr. Ashbaugh. No, we did not. That was an issue that we did 
not cover.
    Ms. Lofgren. I would suggest, Mr. Chairman, that if we are 
going to ask the inspector general to do other things, that 
those two issues would profit us because I first started 
working with the Immigration Service in 1970. It was bad then 
and it is still bad. But as the rest of the world has moved on 
using technology, these functions have sort of frozen in time. 
We are now paying a huge price, not just in inefficiency, but 
also in security. That very much has to also be involved with 
the consular services.
    Now that the players have changed, there might be a 
different attitude in terms of the interface with the visa 
function. Nobody in the State Department even wants to do that. 
It is the short-straw assignment for the State Department 
employee, and maybe we could integrate that in a way that would 
really, using technology, be a seamless shield against those 
who wish to harm us, but also the red carpet for those who 
really want to help us.
    I yield back, and thanks for the recognition.
    Mr. Rogers. I thank the gentlelady.
    As we are drawing to a close, the gentlelady from Texas has 
not had a chance to ask any questions. We will go to here if 
she wants, and then end up with the gentleman from Indiana.
    Ms. Jackson-Lee. I yield to the gentleman.
    Mr. Rogers. Okay. The gentleman from Indiana is recognized.
    Mr. Souder. Thank you.
    I appreciate your time today.
    I found it pretty disturbing that you could not answer the 
chairman's question about why it was originally split, 
especially since the committee had stated that that was going 
to be one of the questions for the hearing. I think it does 
suggest that the division was somewhat artificially done by 
Congress and now Congress recognizes it made a mistake and we 
are trying to fix it. And the administration has dug in, even 
though it does not know why it was split in the first place. It 
is kind of an odd situation here.
    You did raise one thing, I wanted to ask Mr. Ashbaugh, 
because I have not been able to see the report. I have not seen 
it yet at this point, or the administration's response. I 
thought it was an interesting question about should there be an 
ICE, which is a culture of investigations, where we train 
people to do investigations.
    I think that was somewhat behind the Judiciary Committee's 
concerns that in deportation and immigration, that there was 
not enough of a culture investigations in deportation, and they 
wanted kind of a division. Because part of what we have here is 
we had a Border Patrol and we had investigations, and Customs 
was kind of the investigations and Border Patrol was the Border 
Patrol.
    INS was kind of floating around uncertain what to do. So we 
took part of the Customs and put them as CBP, and part of them 
in investigations, and arbitrarily split groups that were at 
least reporting to the same boss.
    Now, what I wondered is that in your report, did you look 
at this question of is it good to have an organization that is 
focused on investigations, that are trained to do 
investigations, and in fact are they doing more than they did 
before? Now, have they improved the investigatory training? Are 
there more people? Is there a culture of investigations any 
different than we had under the legacy Customs?
    Mr. Ashbaugh. The department has taken a very important 
first step in terms of trying to establish a common culture. It 
comes through training, which is a traditional way of doing it. 
It is an effort to cross-train so that the immigration agents 
now have a better understanding of customs law and vice versa. 
It is also true that the 1811s, the special agents, the 
criminal law enforcement investigators are regarded as having 
something of a specific culture, if you will.
    But by and large, INS and Customs were largely part of that 
culture, even the Border Patrol, and even the inspectors on the 
line were also doing enforcement in their own way, not with the 
full power, not with all of the benefits.
    Mr. Souder. In fact, weren't they increasing cross-training 
before the creation of the Department of Homeland Security?
    Mr. Ashbaugh. No, I am referring to cross-training that the 
Department of Homeland Security initiated as part of the One 
Face at the Border. That is described in the report and we are 
very positive with respect to that initiative.
    Mr. Souder. But in fact, weren't the Border Patrol and 
Customs doing cross-training before 9/11 so that Border Patrol 
people started to understand narcotics cases because we simply 
had a shortage of money at the border?
    Mr. Ashbaugh. You know, I cannot answer that question. I do 
recall, though, that there were cross-designations between 
Customs and INS, particularly at ports of entry, so that they 
were able to assign some of each to the various lanes. There 
was at least some effort.
    Mr. Souder. And what you are describing in your report as 
to what they are doing now, is that precluded if the two merge? 
In other words, the cross-training that you are talking about, 
the creating of more of a culture of investigations, would that 
be at all precluded if the two agencies merge?
    Mr. Ashbaugh. No, it is not precluded. In fact, whether you 
merge or do not merge, the continuation of the training and the 
initiative is a very important one to Homeland Security.
    Mr. Souder. Mr. Baker, do you believe that if you merge the 
two agencies, you still could not have one now reporting to a 
common boss, but one that is more investigatory and one that is 
more border, but that it would coordinate better how the 
investigations were connected with the border? Do you see it as 
necessarily precluding a culture of investigations in an 
investigations unit if these two agencies were merged?
    Mr. Baker. I think that really raises the question of 
whether the merger is the solution. Just putting these two 
agencies under the same head, after all, they were all under 
BTS before; they are now under the secretary. Putting them 
under some new person as the head does not change their 
relationship. What is going to be required is working out 
individual kinks in that relationship.
    That is something that the secretary is working on now. It 
is exactly the sort of thing that would have to be done by 
whoever headed the merged organization. The task does not 
substantially change and it does not substantially advance us 
toward the goal, simply to say, well, they all will report to 
the same place.
    Mr. Souder. A common line organization does in fact matter, 
though. If you have two separate lines, and then have staff and 
policy and intelligence inputting into those two separate 
lines, in fact a line structure does matter because you can 
develop two cultures that are competitive if they are not 
reporting in the same line.
    That is what I assume is what the Inspector General was in 
effect saying in your report, was that in fact having a common 
line structure would facilitate management. Is that the thrust?
    Mr. Ashbaugh. Yes, it is.
    Mr. Baker. If I could just offer one thing. You asked the 
question about metrics, and whether investigations have gone up 
at ICE. We provided that information and they have gone up very 
substantially, with total investigative cases were doubled 
between 2003 and 2005; and arrests, indictments, convictions 
and seizures are all up over the 2 years.
    Mr. Rogers. I thank the gentleman.
    Now, the gentlelady from Texas is recognized for any 
questions she may have.
    Ms. Jackson-Lee. Thank you very much, Mr. Chairman.
    As usual, let me thank the chairman and ranking member for 
an important hearing. Sadly though, however, and I know that 
both of you in your service realize that to some extent it is 
sad that we are here contending with the question of whether 
mergers or the merger has worked and how we can be more 
effective.
    I say that in the backdrop to the responsibility not only 
of this committee and its responsibilities of oversight, but 
the department, the DHS, really has entrusted in it the hopes 
and aspirations of Americans as they relate to the 21st-century 
reign, if you will, of terror, looking to DHS as the firewall 
between them and acts of terror. And of course, in this 
instance, including some reasonable response, comprehensive 
response to immigration reform.
    So we find ourselves betwixt and between on whether or not 
we can finally get to a point where we have operational 
operations. Let me share with you some words that were out of a 
report of the GAO. It seems that this is dated May 5, 2005. The 
dating information may be incorrect here, but it looks as if it 
is dated May 5, 2005.
    It recounts these words: ``In 2001, GAO testified that 
while restructuring may help address certain management 
challenges, INS faced significant challenges in assembling the 
basic systems and processes that any organization needs to 
accomplish its mission. These include clearly delineated roles 
and responsibilities; policies and procedures that effectively 
balance competing priorities; effective internal and external 
communications and coordination; and automation systems that 
provide accurate and timely information.''
    INS was transferred into the DHS in 2003. In 2004, GAO 
reported that, ``Many similar management challenges we found at 
INS were still in existence in the new bureaus.''
    Mr. Ashbaugh, let me now turn to you. In the backdrop of 
those words, based upon what GAO found, you comment on problems 
with the merger dealing with coordination of apprehension and 
detention and removal operations, the coordination of 
investigative operations, the coordination of intelligence 
activities. They go to the very crux, to a certain extent, of 
immigration issues and as well border security, and of course 
the issues of preventing those who might perpetrate violent 
terrorist acts inside our borders.
    So in essence, what I am seeing here is a frightening 
assessment of a collapse of our system. Help me be convinced 
that that is not the case at this point, but let's focus in 
particular about the coordination of apprehension and 
detention.
    I think one of the reasons we have seen the rise of the 
Minuteman, of course that is a question you may be able to 
comment on, but I use that as an example, is the frustration of 
the American people on let me just do it myself. We have good 
people on the ground working for both the CBP and ICE. There 
are good, hard-working people, but when they come to members of 
Congress and say their badges have not even been changed to the 
new merged entity, and they do not even have uniforms, then we 
know that we have some problems in the rafters.
    Could you focus in detail on the problem or the need for 
work between the issues of coordination of apprehension and 
detention?

           Prepared Statement of the Hon. Sheila Jackson-Lee

                           November 15, 2005

    Chairman Rogers and Ranking Member Meek, I appreciate your effort 
in convening today's second hearing on the benefits of merging Customs 
and Border Patrol (CBP) with Immigration and Customs Enforcement (ICE).
    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, CBP 
and 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 
witnesses, Honorable Robert L. Ashbaugh and the Honorable Stewart 
Baker, will assist this body in elaborating on the nature of those 
problems.
    I yield back.

    Mr. Ashbaugh. First off, the GAO's description of the 
problems endemic to INS are very familiar ones. The argument 
and the contention in our report was that the playing field has 
been changed by the fact that the entities are now divided or 
severed from each other. The concern that we have relates to 
the fact that in the detention arena, it is probable that there 
is no fix that the nation can afford; that in terms of 
identifying, locating and removing the over-stays and the 
people who abscond, the numbers of so drastically out of sync 
that we are left using the resources that are available to us 
as rationally and as disciplined a way as we can.
    There is some good news. The detention and removal 
operation at DHS has been able to decrease the average stay of 
the detainees. As I understand it, EOIR, Executive Office for 
Immigration Review, has also been able to accelerate its 
processing of cases so that the result is with a fixed level of 
bed space, ICE is able to house more detainees than it was able 
to in the past. So there is some good news in that respect.
    The concern that we have in our report relates to the fact 
that CBP is not at the table when it comes to negotiating over 
how we are going to use these very finite and scarce resources. 
I do not think that is a complete answer to your question, 
Congresswoman, but at least let me start with that. If you have 
a follow-up, maybe that will help.
    Ms. Jackson-Lee. I do. I am going to allow you to follow up 
because I want you to focus on what I have just said, the 
coordination of apprehension and detention and removal 
operations. So I would like you to take and answer where the 
coordination is failing between CBP and ICE.
    And then I would like to follow up by asking the question, 
as you have assessed CBP, one of the issues that have come to 
our attention is lacking, and you put the funding issue, so 
let's put the funding on the table, but to do your job, you 
have to have the resources to do your job.
    If you do not have, for example, and I am wondering if you 
assessed that, and this is CBP, because they are frontline 
border patrol agents out and about and others, power boats, 
helicopters, having laptop computers, night goggles, et cetera, 
those are just basic. And then why not put on the other side 
training, which may play into some of the deficiencies that you 
may see in them.
    So if you could comment, focused on this coordination. I 
think this coordination is one of the key elements of whether 
you have success or not, and then equipment certainly plays 
into it, and we put funding over to the side. If you could just 
comment on those two points more thoroughly, I would appreciate 
it.
    Mr. Ashbaugh. With respect to coordination, our concern was 
and remains that ICE and CBP each have the capacity to disrupt 
the operations of the other if they do not function carefully. 
For example, CBP by virtue of its expedited removals, a class 
of aliens which typically are detained can suddenly thrust into 
ICE an unanticipated volume of new detainees that ICE has to 
manage. ICE has its own apprehension initiatives which may fill 
the bed space that CBP hoped to use. So systematically, there 
is an extraordinary need for coordination.
    With respect to your question about whether or not the 
entities, ICE or CBP, have the equipment that they need to do 
their job, we did not study that. We view that as largely 
separate from the merger question, with one exception. The 
exception was that we felt that the separation of ICE and CBP 
put a very high premium on a careful informed set of decisions 
with respect to budget formulation and budget execution, that 
both of those needed to be accomplished with a very disciplined 
assessment and setting of priorities between the two 
organizations and what they were trying to accomplish.
    Ms. Jackson-Lee. Do you think, Mr. Baker, that the whole 
idea of coordination can be fixed? And do you have any 
assessment on the need for equipment in some of the agencies 
that we are speaking of, particularly CBP?
    Mr. Baker. Yes, we do believe that it can be fixed, and 
that it is being fixed right now. On the question of resources, 
there is no doubt that, as Representative Lofgren said, there 
is insufficient bed space for all the people that could be 
detained and perhaps should be detained. So that is a scare 
resource to us, and under most future scenarios it is going to 
be a scarce resource for a long time.
    We are trying to use that scarce resource in a strategic 
way under the direction of the Secretary in a fashion, with a 
program office that will oversee the relationship between ICE 
and CBP in an effort to secure the border, that is the Secure 
Border Initiative, with a program office. I note that the 
legislation recently introduced by the chairman here would 
require the establishment of that office, but it is in fact 
being stood up now. That has resulted in a very strategic and 
coordinated use of our scarce detention resources.
    Ms. Jackson-Lee. Besides the detention, if you would, Mr. 
Chairman, I will finish on this, and I thank you for your 
indulgence.
    I mentioned besides detention, actual active equipment that 
even provides the opportunity to secure individuals that might 
be illegally coming across the border such as power boats, 
helicopters, laptop computers, night goggles, et cetera, which 
is also resources that are lacking. Is that being studied or 
assessed about whether or not you have various personnel fully 
equipped with what they need to be fully equipped with? And in 
the initiative, are you looking at some of the options of, if 
you will, corralling or herding vacant beds in local 
jurisdictions that might be utilized on a temporary basis?
    Mr. Baker. We are looking at all of that, precisely because 
technology can in some cases substitute for people. The kinds 
of technology you use allows you to make tradeoffs, and we are 
looking for the most effective and cost-effective solutions.
    Ms. Jackson-Lee. Including the equipment?
    Mr. Baker. Yes, absolutely.
    Ms. Jackson-Lee. I would just say in conclusion, I think we 
are long overdue in providing for not only ICE, but the Border 
Patrol. We are long overdue in enforcing employer sanctions. We 
are long overdue for having some sort of orderly process for 
detainees, and certainly long overdue for some reasonable 
response to whether we can deport everyone. We cannot and do 
not expect to.
    But I think the coordination issue is so key that, Mr. 
Chairman, I do not know how many hearings we will have to have 
to get to the bottom of it or to find out that we are making 
some progress, but I really think that the lack of coordination 
can be the death of all of us. If one hand does not know what 
the other hand is doing, we can't find the bad guys.
    I thank the chairman, and I thank the witnesses.
    Mr. Rogers. I thank the gentlelady.
    I also want to thank our witnesses who have been with us 
for nearly two hours now. I appreciate your very thoughtful 
comments. It has been helpful.
    I appreciate the Members who have been here for questions.
    I would advise the witnesses that the record will be left 
open for 10 days. As you know, votes do not occur until this 
evening, so several of our Members are not in town yet, but 
they may have questions that they would like to submit to you. 
I would ask that if they do, you submit a response in writing 
for the record.
    With that, without objection, we are adjourned.
    [Whereupon, at 3:50 p.m., the subcommittee was adjourned.]



                     CBP AND ICE: DOES THE CURRENT

 ORGANIZATIONAL STRUCTURE BEST SERVE U.S. HOMELAND SECURITY INTERESTS?

                                PART III

                              ----------                              


                         Thursday, May 11, 2006

             U.S. House of Representatives,
                    Committee on Homeland Security,
                                Subcommittee on Management,
                                Integration, and Oversight,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 2:35 p.m., in 
Room 311, Cannon House Office Building, Hon. Mike Rogers 
[chairman of the subcommittee] presiding.
    Present: Representatives Rogers, Souder, McCaul, and Meek.
    Mr. Rogers. I would like to call this meeting of the 
Homeland Security Subcommittee on Management, Integration and 
Oversight to order.
    Today, we are holding our third and what I hope will be our 
last hearing on the interaction between two critical agencies, 
Customs and Border Protection, or CBP, and Immigration and 
Customs Enforcement, or ICE.
    I would first like to welcome our witnesses and thank them 
for taking time out of their busy schedule to be with us today.
    The main mission of CBP is border security, while the 
mission of ICE is enforcement of our immigration laws. Since 
these two agencies were created by the Department in March, 
2003, numerous problems have been identified in how they 
interact and carry out their missions.
    Let's be clear about the context of today's hearing. Our 
country is facing a crisis on the borders. The time for action 
is now, and the Department needs to understand that time is 
running out to fix these agencies.
    In our first hearing in March, 2005, we heard how 
bureaucratic walls resulted in less cooperation and less 
information sharing. That same month, Secretary Chertoff 
launched a top-to-bottom review of the Department. Based on 
these results, Secretary Chertoff decided to keep the two 
agencies separate, but he also took a number of steps to 
improve their coordination and operation, some of which we will 
discuss today.
    Our second hearing in November focused on a report from the 
Department's Inspector General in which he supported merging 
the agencies. Following that hearing, Ranking Member Meek and I 
joined with the chairman and ranking member of the full 
committee in writing to the Secretary to track the Department's 
progress. The response we received addressed some but not all 
of our concerns.
    We are holding this third hearing to hear what concrete 
steps key officials have taken and plan to take to improve how 
the two agencies work together. We will also hear from two 
union representatives and a former senior Department official 
about challenges facing CBP and ICE.
    I yield to the ranking member, Mr. Meek, for any opening 
statement he may have.
    Mr. Meek. Thank you, Mr. Chairman.
    It is good to be here having a hearing dealing with the 
issue of ICE and also CBP. I am glad to have some of our 
witnesses back and some new witnesses before us here today, and 
I welcome you all to the committee.
    I just want to start my comments by saying this issue has 
been a great concern to me and one that is one of the great 
concerns of Congress as it relates to the serious needs of this 
country to address an ongoing debate over immigration 
enforcement and border security.
    As you recall, the Department of Homeland Security 
Inspector General, in testifying before this subcommittee back 
in November of 05, noted that ICE and CBP had serious 
coordination problems and, because of that, because of the 
separation of the two agencies, there were three outstanding 
issues: detention and removal operations were hindered, 
interdiction and investigation capabilities have been weakened, 
and there was a lack of coordination of intelligence 
activities.
    During our subcommittee hearing 6 months ago, the 
Department, represented by Mr. Stewart Baker, Office of Policy, 
took somewhat of a defensive position on the Inspector 
General's findings and recommendations for a merger of both of 
these agencies. Mr. Baker went so far as to question the 
validity of the IG study.
    In 2004 and prior to, the Department of Homeland Security 
OIG and the Heritage Foundation called for a merger of ICE and 
Customs and Border Protection.
    As you may also recall, I originally offered and 
subsequently withdrew an amendment to merge both agencies back 
in November of 2005 during a full committee markup of the 
Border Security and Terrorism Prevention Act, H.R.C12. I did so 
only after Chairman King asked that the Department be given 6 
months to address the various challenges between the two 
agencies.
    I understand since the 6 months have passed, the Department 
may have taken or plans to take steps to address the IG's 
findings and 12 of the 14 IG's recommendations. Among those 
steps, the Department has reportedly taken in response to the 
IG's findings and the recommendations are the creation of a 
Department-ide Office of Policy Office of Operations and 
Coordination, an Office of Intelligence Analysis to enhance 
coordination of policy and operations and intelligence across 
the Department of Homeland Security, establish a direct line of 
report from ICE and CBP to the Secretary, standing up the ICE 
and CBP Coordination Council to encourage managers from each 
agency to meet regularly, establish a local field working group 
of field managers to address coordination issues.
    Mr. Chairman, even with these steps, I am not fully 
convinced that they are having the reach into the men and women 
in the field who are doing the front-line work. There has been 
no evidence provided to the subcommittee that field staff has 
been engaged and that these challenges have been clearly 
communicated to those in the field.
    Staff in the subcommittee continues to hear from front-line 
agents and other law enforcement officials that ICE and also 
CBP are not working effectively together in the field. This is 
bothersome, given that the Department of Homeland Security IG 
also noted in its November, 2005, report that there was an 
apparent disconnect between headquarters in the perception of 
what was happening and what the IG observed in the field.
    I can go on, Mr. Chairman, but what I want to do before I 
run out of time, I just want to allow us as much time to take 
advantage of this first panel. We know that we have a second 
panel that will be coming up, and many of us, those and members 
present here who have been working very hard on this issue--
because, as you know, Mr. Chairman, it is dealing with our 
national security and it is dealing with our men and women in 
the field.
    I definitely would ask unanimous consent to have the rest 
of my comments placed into the record; and I look forward to, 
hopefully, a fruitful discourse here today, sir.
    Mr. Rogers. I thank the gentleman. Without objection his 
full statement is going to be submitted in the record.
    Mr. Rogers. The Chair now asks unanimous consent for the 
gentleman from Indiana, Mr. Souder, to be recognized for 
purposes of opening statement. Without objection, Mr. Souder is 
recognized.
    Mr. Souder. I ask my full statement be placed into the 
record.

               Prepared Statement of the Hon. Mark Souder

                              May 11, 2006

    I would like to thank full committee Chairman Peter King, 
Subcommittee Chairman Mike Rogers and ranking member Kendrick Meek for 
calling a third hearing on this significant issue and assembling a 
distinguished panel of witnesses to discuss the efficient functioning 
of the Department of Homeland Security (DHS) and our national security.
    In the aftermath of 9/11 the nation sought explanations and 
assurance. Our way of life had been assaulted and our security 
challenged. Working in conjunction with the Administration, Congress 
looked for the means by which to meet terrorism and defeat it. 
Essential to that effort was a strong national defense consisting of 
those agencies we already relied on to guard our borders, but one with 
a new focus. This new focus was reflected in the creation in March 2003 
of DHS. The agency brought together twenty-two federal agencies and 
more than 170,000 employees in what was the most significant 
reorganization of the federal government in more than fifty years.
    Reorganization on that magnitude required patience while DHS 
underwent the inevitable growing pains that came with forging a common 
agency culture from often disparate organizations. While the agency has 
been molding its identity and formulating policy it has been beset with 
management and operational challenges. Some it has weathered, others it 
has not. We are here today to examine one of those challenges, the 
increasing divide separating the efficient and integrated functioning 
of Customs and Border Protection (CBP) and Immigration and Customs 
Enforcement (ICE) with each other and the impact the disjunct has on 
their respective missions.
    As chairman of the House Government Reform Subcommittee on Criminal 
Justice, Drug Policy and Human Resources, I have been very aware of the 
divides between CBP and ICE. The issues are memorialized in the 
Government Reform Committee's report ``2006 Congressional Drug Control 
Budget and Policy Assessment: A Review of the 2007 National Drug 
Control Budget and 2006 National Drug Control Strategy.'' The problems, 
as they relate to drug interdiction, include CBP Air's employment of 
its assets, the disconnect between Border Patrol agents and ICE 
investigators and the lack of priority given to drug investigation and 
interdiction by agency management.
    It is redundant to say that interdicting illicit drugs before they 
cross our nation's border's is the most effective means of removing 
narcotics from our streets. Yet that seemingly simple truth does not 
appear to have sufficiently filtered down through the Department of 
Homeland Security to the CBP Air component. The drug transit zone 
encompasses six million square miles of the eastern Pacific Ocean, the 
Caribbean Sea and the nations of Central America. Nearly all of the 
cocaine entering the United States passes through this zone. An 
interdiction strategy employing our various air and sea assets has 
proven effective as reflected in record seizures in 2005 and CBP's P-3 
aircraft played a critical role in the detection and monitoring of drug 
smuggling vessels. The significance of this role was ably put by 
General Michael Kostelnik, CBP's Assistant Commissioner for the Office 
of Air and Marine, when he stated in a hearing before my Subcommittee 
on April 26, 2006 that over fifty percent of JIATF South's maritime 
aircraft patrol hours were flown by these aircraft.
    Given the vital role of the P-3 it is disturbing that CBP is 
attempting to transfer control of air and marine operations to the 
Border Patrol sector chief level. Admittedly border security is a 
critical element, but it is a mistake to remove the P-3's from their 
current role and it is unwise for such a vital national asset to be 
regionalized. That model did not serve the old Immigration and 
Naturalization Service well and it will not serve either DHS or this 
nation well. I asked then CBP Commissioner Bonner in November 2005, why 
is agency was taking a regionalized approach when all other federal 
government agencies utilized a centralized approach. DHS needs to 
clearly define CBP Air's interdiction mission in the transit zone and 
these aircraft need to remain a national asset, accountable to both the 
Secretary and the Congress.
    Given the vital role of the P-3 it is disturbing that CBP is 
attempting to transfer control of air and marine operations to the 
Border Patrol sector chief level. Admittedly border security is a 
critical element, but it is a mistake to remove the P-3's from their 
current role and it is unwise for such a vital national asset to be 
regionalized. That model did not serve the old Immigration and 
Naturalization Service well and it will not serve either DHS or this 
nation well. I asked then CBP Commissioner Robert Bonner in November 
200, why his agency was taking a regionalized approach when all other 
federal government agencies utilized a centralized approach. DHS needs 
to clearly define CBP Air's interdiction mission in the transit zone 
and these aircraft need to remain a national asset, accountable to both 
the Secretary and the Congress.
    While addressing the mission critical role of the P-3 aircraft I 
must express my concern at the current condition in which that fleet of 
aircraft now stands. As we meet here today, of the sixteen P-3as in the 
CBP air fleet, only a few are currently airworthy. Due to the lack of a 
sound recapitalization or progressive modernization program, these 
aircraft are grounded because of cracks in their airframes. It is 
appalling that such a significant component of the interdiction triad 
of air, sea and land assets sits useless.
    It is very important that the officers and agents of CBP and Border 
Patrol have a clear relationship with the investigators of ICE. The 
role of ICE appears to vary in different regions of the country in part 
due to the policies carried over from legacy Customs and Border Patrol 
agencies. In some areas along the border drug seizures are turned over 
to either ICE or the Drug Enforcement Administration (DEA), depending 
on where the seizure occurred and in other areas, the receiving agency 
is determined in which week of the month the seizure occurred. Regional 
arrangements need to be overcome in favor of a uniform and consistent 
policy. A uniform strategy on the border is imperative whether for 
drugs or aliens.
    Although ICE continues to enforce U.S. drug laws, primarily with a 
nexus to the border, investigative resources are lacking due to the 
expanded responsibilities of immigration enforcement. ICE has continued 
to increase its apprehensions of criminal aliens over the past several 
years. While this focus is appropriate to its mission, the interlocking 
relationship of drugs and alien smuggling cannot be ignored and 
resources must be allocated commensurately.
    The issue of how to resolve the disjunct between ICE and CBP has 
been the subject of several analyses. One of the most prominent was 
prepared by the Office of the Inspector General (OIG) for the DHS in 
November 2005. The report concluded that the organizational structure 
contributed to what it characterized as ``challenges'', in three areas: 
coordination between apprehension and detention and removal efforts, 
and coordination of intelligence activities, coordination between 
interdiction and investigative efforts. The report said ``The 
programmatic issues. . .[in the report]. .  are evidence that 
integration is not proceeding as well as required. We encountered 
concerns that institutional rivalries, duplication of functions and 
insularity of views were tending in a negative direction.'' One of the 
suggestions the OIG report makes is to merge ICE and CBP. The report 
says about this option ``The resulting consolidated border security 
agency with a single chair-of--command would be better positioned to 
coordinate mission, priorities and resources to guarantee a 
comprehensive border security system.''
    The Heritage Foundation also completed a study in December 2004, 
``DHS 2.0: Rethinking the Department of Homeland Security'' in which 
the authors wrote ``. . .the split of responsibilities between the CBP 
and ICE was done without a compelling reason--other than vague (and 
ultimately incorrect) descriptive notion that the Customs and Border 
Protection would handle ``border enforcement'' and ICE would handle 
``interior enforcement.'' In another report by Heritage on May 25, 
2005, the authors said ``Separating responsibilities makes no sense. 
Every ICE investigation begins with a person or persons crossing or 
attempting to cross U.S. borders. Thus every ICE operation requires 
working with CBP. In fact, in researching the creation of the 
department, we couldn't find one compelling argument for creating 
separate agencies.''
    Former CBP Commissioner Bonner was quoted in the Washington Times 
on December 7, 2005, as saying ``There is a simple principle--
Bureaucracy 101-- that applies here; if you want people to work 
together, you don't split them into two separate agencies. . .'', he 
continued, ``CBP's mission is to interdict drugs and potential 
terrorist, but most of our interdictions are based on CBP's own 
targeting and not what CBP gets from ICE. This breakdown in the 
intelligence and the feedback loop could be fixed simply by merging CBP 
and ICE--to create one border agency, but one with the investigative 
and intelligence capacity to do the job.''
    The issues with border security are manifold and this nation 
deserves a competent, coherent approach. In view of the concerns I've 
mentioned and those raised by the reports from DHS and the Heritage 
Foundation, there appears no way the current framework under which CBP 
AND ICE operate can work. However, the fundamental issue we address 
today is one of national security, not organization. I therefore look 
forward to hearing from our panel members on this issue.

    Mr. Rogers. Without objection.
    Mr. Souder. I want to make sure that each of the witnesses 
understand that my comments are not about the individuals. We 
have gone through multiple individuals in these positions. My 
concern is about the structure. No matter how well you do your 
job, I believe you have a structural problem, and my statement 
deals much with the narcotics, which is the committee I chair.
    But in working through this, your mission is multi-tasked 
and very, very difficult to do. We want you to catch every 
potential terrorist and everybody on the watchlist, make sure 
that illegal immigrants don't get across, make sure that no 
contraband gets across, whether narcotics or agriculture or 
biochemical or nuclear or any of that type of thing, and you 
are multi-tasked.
    What became immediately apparent to me in the structure--
and I have absolutely no answer to this question; and Steve 
King, our colleague from Iowa, was on the Arizona border last 
week and has come back absolutely furious. You can't deal with 
the Shadow Wolves. It illustrates the problem. The Shadow 
Wolves are gradually leaving. The reason they are leaving is 
because you had a unit from the Tohono O'Odham Reservation of 
experienced trackers who did both border and investigations, 
and they didn't picket fence, and they didn't do just 
investigations, and your structure doesn't accommodate that.
    What do we do with people who go both directions? We don't 
have a way to deal with them. Because your structure is so 
inefficient, you took Native Americans, one of the hardest 
groups to penetrate--this would be like if we had a group of 
Iraqis who had been intelligence people in Iraq or Iran and 
said, oh, no, we are going to spread them all over the world. 
We don't care that that is their expertise.
    We took the people in the Shadow Wolves and put them in the 
picket fence or made them investigators but took them away from 
where their skill was when we should be doing this at one of 
the biggest holes we have in the northern border. We should be 
looking at the southwest border as a model, but we busted it 
because it didn't fit the uniform structure of how to do this.
    Then we have the Air and Marine Division. How do they fit? 
Some of their planes are down in Colombia. Some are doing 
investigations internally. They have got boats. They have got 
air. So in the Caribbean they are working under kind of legacy 
Customs-type things and doing what the Air and Marine Division 
did, and they moved into the typical CBP-type thing because 
they don't have a land border. But in the land border we are 
taking P3s used for intelligence and parking them like Border 
Patrol helicopters that go along.
    Look, I want the border controlled, too, and the Members of 
Congress and voters are demanding we control the border, but 
you are multi-tasked with multiple missions, and you don't have 
the flexibility in the current structure.
    General Kostelnik is trying to deal with it in the 
Caribbean. You don't have a solution for the land border 
because it doesn't fit the model. If you don't merge the 
divisions--this would be like having a baseball team with a 
manager for the pitchers and a manager for the hitters and then 
your proposal is to hire coaches to run between the two 
managers and add more layers when, in fact, it is within the 
same team. You should have had a structure that is here with 
divisions and then you wouldn't need to get to how do we 
coordinate the intelligence. We are going to add a whole new 
layer of bureaucracy so that you two can talk to each other 
when you should be under the same thing down in a logical, 
managerial structure. It is not the individuals here; it is the 
structure.
    Maybe it can be accommodated, but until you can figure out 
how to do this--I was just in Charleston, looked at Operation 
Seahawk. They are standing up. You have the ability there to 
track every boat in every air. So we are funding millions of 
dollars in different ports saying why don't we invent this 
system to track every airplane and every boat. You have got it.
    The divisions are so separated from each other in our 
government they have to put in new people to figure out how to 
talk to the other people so they know what the divisions are 
doing. It is incredibly exasperating. They, in fact, want to 
stand up an intelligence agency, because in El Paso they have 
seven different intelligence agencies and now they have a task 
force, so I think they spend half their day trying to talk to 
each other inside the same agency.
    That is our frustration. It is not with the individuals, 
but I believe there are conceptual problems that need to be 
addressed. If you can show me another way, before all the 
Shadow Wolves quit, to figure out how to do the Shadow Wolves, 
Air and Marine, before you lose your people on the southwest 
border who know how to fly the P3s and are trained to fly them, 
then I am willing to listen to it. But, right now, the new 
solution just seems to me like more agency people to talk to 
the people who they should have been in the same division on 
the same team in the first place.
    Yield back.
    Mr. Rogers. Thank you, Mr. Souder.
    Mr. Rogers. I thank the witnesses. We have got two panels 
of distinguished guests today. We are going to be called for a 
series of votes around 3:15, so it is our goal to try to get 
through these opening statements and hopefully have some 
questions. Ideally, that vote will be called a little bit later 
so we can get through with the questions for the first panel 
and then break between the first and second panel. For that 
reason, I would ask that you keep your opening statements as 
limited as you can so we can have more room for questions and 
know that your full statement will be accepted for the record.
    Mr. Rogers. With that, the Chair calls the first panel and 
recognizes the Honorable Stewart A. Baker, Assistant Secretary 
for Policy for Homeland Security.
    You are recognized for any statements you may have, Mr. 
Baker. Welcome back.

          STATEMENT OF THE HONORABLE STEWART A. BAKER

    Mr. Baker. Thank you, Chairman Rogers, Ranking Member Meek, 
distinguished members of the committee. I appreciate the 
opportunity to address you today, and I want to thank you for 
your support for the Department.
    I also want to thank you--when I came up here the first 
time to testify, it was my first opportunity to testify before 
the committee--before a congressional committee in years. I 
thought it was a pretty rough debut, but my second outing was 
defending the Dubai Ports World deal and our CIFIUS approval, 
so I now remember this subcommittee with great fondness. It is 
a pleasure to be back.
    Any reorganization is going to have challenges, and it is 
certainly true that the creation of ICE and CBP was not an 
exception to that rule. But I think that, despite the initial 
challenges, ICE and CBP have taken a number of positive steps 
to effective coordination in their first 3 years of existence 
under DHS. We have documented this in greater detail in past 
testimony and in my prepared remarks, which I ask be accepted 
in full, but I think that I can recount them very briefly.
    The Secretary s Second Stage Review, the Secure Border 
Initiative, the ICE-CBP Coordination Council, and many other 
coordination mechanisms have been developed that I think will 
create the kind of unified effort that we all want to see from 
ICE and CBP.
    Secretary Chertoff's Second Stage Review led him to 
conclude that, while he thought pretty carefully about merging 
ICE and CBP, that it was not necessary to do that but instead 
was appropriate to create what I think Congressman Souder would 
describe as a manager. The manager of our team is the 
Secretary, and he created what you might think of as the 
pitching coach and the batting coach and the policy office and 
the operations office and the intelligence office to provide 
specific guidance to both ICE and CBP and then to let ICE and 
CBP do their jobs, report to him and take responsibility for 
making sure that they did coordinate their operations.
    We have been operating under the Second Stage Review 
effectively for several months now; and, by and large, we are 
seeing very substantial improvements in coordination. One of 
them is the Secure Border Initiative, in which the Secretary 
looked carefully at some of the border issues that he faced and 
recognized that there are a lot of interdependencies among the 
agencies and among the kinds of control activities that you can 
undertake and that the only solution is to approach those 
problems as a whole with a coordinated response.
    The SPI office that I have responsibility for has led 
integrated and coordinated approaches to procurements for the 
border, for catch and release coordination, approaches to 
solving the catch and release problem. Again, I think we have 
seen real results as a result of our efforts in that regard.
    ICE and CBP also created the ICBP Coordination Council 
under the Secretary's direction, which allows the heads of 
those agencies to meet on a very regular basis to iron out 
problems as they arise rather than letting them fester.
    One of the kinds of examples of the field operations where 
field agents are actually getting an opportunity to coordinate 
their activities is the Border Enforcement Security Task Force, 
or BEST Force. We have stood up one in Texas and are now 
standing up another in Arizona, which requires the coordination 
of ICE and CBP as well as the participation of intelligence 
elements aimed at addressing cross-border crime and human 
smuggling.
    Finally, just in closing, keeping in mind the chairman's 
request that we keep our testimony short, I want to say that 
staying the course of results-oriented coordination is a better 
solution to securing the border and enforcing immigration law, 
providing the kind of coordination we need, than a new and very 
far-ranging reorganization that would force these agencies back 
into yet another period of uncertainty about how they are 
organized, who their boss is, and how they are going to be 
judged in carrying out a job that I think we all agree is 
absolutely essential at this point in our Nation's history.
    Thank you, Mr. Chairman.
    Mr. Rogers. Thank you, Mr. Baker.
    [The statement of Mr. Baker follows:]

                  Prepared Statement of Stewart Baker

                         Thursday, May 11, 2006

                              INTRODUCTION

    Mr. Chairman and members of the Committee: thank you for the 
opportunity to address you today, and for your ongoing support of the 
Department of Homeland Security's efforts to keep America secure. I am 
honored and pleased to appear before the House Committee on Homeland 
Security, Subcommittee on Management, Integration, and Oversight to 
speak on behalf of the Department regarding our efforts to coordinate 
the missions of U.S. Immigration and Customs Enforcement (ICE) and U.S. 
Customs and Border Protection (CBP) during my tenure as the Assistant 
Secretary for Policy at the Department of Homeland Security. I am 
pleased to have this opportunity to discuss the current state of 
coordination and cooperation between two of the Department's most vital 
agencies: ICE and CBP each play a leading role in several of the 
Department's crucial missions, including border security, interior 
enforcement and immigration reform. I appreciate this Subcommittee's 
work with the Department in this area. It is critical to the Department 
that we work hand-in-hand with you to ensure that we are effectively 
managing our border and interior enforcement efforts.
    Despite initial challenges, ICE and CBP have taken many positive 
steps toward effective integration and coordination in the initial 
three years of their existence under the DHS organization. Both 
agencies have complex legacy authorities and diverse cultures. As part 
of the initial transition planning, policies and procedures were 
developed to provide a fully integrated, comprehensive immigration and 
customs cooperative process for the legacy Customs and former 
Immigration and Naturalization Service (INS) field managers. Both ICE 
and CBP developed organizational templates, which met the new DHS 
mission requirements. Subsequently, each organization highlighted 
problems for resolution and has worked towards enhancing coordination 
to address identified problems. Through interdisciplinary groups within 
the Department, we continue to work on coordination issues. 
Coordination has improved simply by virtue of the fact that a number of 
offices that were previously housed in several different Departments 
are now under one umbrella allowing conflict resolution and critical 
resource allocations to occur under a single Cabinet official. But, as 
we have documented in greater detail in previous testimony and our 
response to the Inspector General's November 2005 report concerning the 
possible merger of ICE and CBP, significant steps have been taken to 
enhance coordination at all levels. The Inspector General report 
focused on: (1) Apprehension and Detention and Removal Operations; (2) 
Investigative Operations; and (3) Intelligence Activities. Through an 
ongoing evolution of coordination, these and other vital areas of ICE, 
CBP, and DHS operations continue to be integrated for optimal 
performance of the Department's mandate to keep America secure.
    This coordination occurs under several initiatives which include 
the Secretary's Second Stage Review reorganization, the Secure Border 
Initiative (SBI), the ICE-CBP Coordination Council, and many others in 
the field of operations.

                          SECOND STAGE REVIEW

    Considerable work has been done since 9/11 to enhance border 
security. We have significantly increased the number of agents and 
officers securing our borders and ports of entry, strengthened and 
consolidated inspections, expanded the terrorist watch list, created 
new screening and credentialing tools, and increased our enforcement 
capabilities. But much remains to be done. Illegal immigration 
undermines our national security. And illegal immigration imposes 
particular public safety and economic strains on our communities.
    Secretary Chertoff studied these critical issues carefully in his 
Second Stage Review of the Department. He looked, in particular, at 
proposals to enhance coordination between ICE and CBP. After careful 
study, he decided that the best course was not to merge the two 
agencies, as some had suggested, but to propose a new management 
structure intended to reduce bureaucracy, improve accountability, and 
enhance coordination. In addition to making ICE and CBP direct reports 
to the Secretary and eliminating the Border and Transportation Security 
Directorate (BTS), the Secretary stood up a Department-wide Policy 
Office, an Operations Coordination Office, and an Intelligence Office 
to ensure that the Department and its components are mission-focused 
and effectively leveraging tools from across the DHS spectrum. These 
offices have been charged with utilizing the tools of all of DHS's 
components to address the Department's critical homeland security 
mission. Indeed, these new offices interact on a daily basis with their 
counterparts in CBP and ICE, among other DHS component agencies. Among 
other things, it was the Secretary's belief that a merger would 
diminish, rather than enhance, the roles of the Assistant Secretary of 
ICE and the Commissioner of CBP by, in effect, relegating them to the 
Deputy Assistant Secretary level.It would thus merely recreate a 
bureaucratic reporting mechanism like BTS that has already been harshly 
criticized. Also, the disruption created by a merger of this magnitude 
would distract the focus of these two agencies.
    Integration is coordinated at the Department level in conjunction 
with ICE and CBP by the Directorate of Policy, the Office of 
Intelligence and Analysis, and the Office of Operations Coordination 
including:
         Integration and alignment of priorities. Both the 
        Department-wide Policy Office and Director of Operations 
        Coordination play a major role in integrating policy and 
        operations of all the DHS operational agencies, including CBP 
        and ICE. In coordination with CBP and ICE, they also align 
        Departmental priorities.
         Performance tracking and interagency reviews. The 
        Office of Policy will monitor the implementation of these 
        priorities through performance tracking and periodic 
        interagency reviews, including assessments of related resource 
        deployments.
         Intelligence Fusion and Department-wide Intelligence 
        Products. The Office of Intelligence and Analysis takes the 
        lead to ensure that we are operating under a common picture 
        across the Department. In addition to the joint efforts that 
        are already underway between these two agencies with respect to 
        intelligence and information-sharing, the Department's new 
        Chief of Intelligence fuses information from all DHS 
        components, including ICE and CBP. This organizational change 
        within the Department increases information sharing between 
        components, and also develops intelligence products that 
        incorporate all-source information from across DHS. A working 
        group within the Department recently established protocols and 
        mechanisms to provide analysts from the Office of Intelligence 
        and Analysis with much-improved access to key ICE and CBP 
        databases, providing the Office of Intelligence and Analysis 
        with a far better capacity to conduct patterns and trends 
        analysis in this area. Plans are also underway to improve our 
        Reports Officers program and the Department is making 
        significant improvements in the number and quality of 
        Intelligence Information Reports that it produces.
    A specific example of the CBP and ICE cooperative interaction is 
reflected at CBP's National Targeting Center (NTC). ICE has an on-site 
liaison officer assigned to the NTC to ensure effective communication 
and information exchanges between CBP and ICE. For example, all 
``special interest alien'' intercepts by CBP Officers or Border Patrol 
Agents are reported to the NTC and notification is made to the ICE 
liaison officer to conduct further investigations or inquiries, or to 
forward the information for further review to the appropriate ICE 
headquarters personnel.
         Performance Metrics. The Department is developing 
        performance metrics for internal CBP and ICE operations, and 
        metrics for gauging the extent of interaction and coordination 
        between CBP and ICE.
         Budget Coordination. Starting with the 2007 
        President's Budget, the Department CFO has established a more 
        formal process to ensure greater visibility and coordination 
        between CBP and ICE for budget formulation and strategic 
        planning processes. This ensures a more consistent and proper 
        balance of border/apprehension assets in CBP with interior 
        enforcement/removal assets in ICE. In addition, the Chief 
        Financial Officer (CFO) tracks budget execution to guarantee 
        compliance with agreed-to budget and plans.

                        SECURE BORDER INITIATIVE

    The Secretary also concluded that a top priority must be to think 
innovatively and undertake a new way of doing business in the border 
security realm. Thus, the first major initiative that he launched 
following his Second Stage Review, in addition to the new management 
structure, was the stand-up of the Secure Border Initiative or SBI. The 
Secretary put together a team of experts, from CBP, ICE, U.S. 
Citizenship and Immigration Services (CIS), U.S. Coast Guard, our 
Intelligence Office, Management Directorate, Office of International 
Affairs, and others, to focus on all aspects of immigration 
enforcement--deterrence, detection, apprehension, detention, removal 
and investigation of criminal organizations violating the border. This 
initiative is intended to provide a mechanism to meet the challenges in 
each of these areas with an integrated mix of increased staffing, 
robust interior enforcement, greater investment in detection technology 
and infrastructure, and enhanced coordination on the federal, state, 
local, and international levels.
    Indeed, the SBI Program Executive Office (PEO) brings together ICE, 
CBP, Budget, and Management regularly to align resources. PEO will 
establish the proper foundation that will enable DHS components to 
create and maintain a functional and seamless network of capabilities 
that control the border and disrupt and dismantle the continuum of 
border crime into the interior of the United States. The PEO is 
partially staffed with ICE, CBP, and CIS detailees working hand-in-hand 
to review immigration enforcement resource proposals in advance of, or 
concurrent with, DHS CFO review. The office is also developing 
integrated planning models and program plans upon which major border 
and immigration reform resource decisions are based. It is of 
particular importance to note that the Secretary sits down with the 
leadership of these components each and every week to monitor 
improvements closely, launch new initiatives, ensure that we are 
measuring results, and readjust and realign resources accordingly.

        The overall vision for SBI includes:
         More agents to patrol our borders, secure our ports of 
        entry and enforce immigration laws;
         Expanded detention and removal capabilities to 
        eliminate ``catch and release'' once and for all along the 
        border;
         A comprehensive and systemic upgrading of the 
        technology used in controlling the border, including increased 
        manned aerial assets, expanded use of UAVs, and next-generation 
        detection technology;
         Increased investment in infrastructure improvements at 
        the border--providing additional physical security to sharply 
        reduce illegal border crossings; and
         Increased interior enforcement of our immigration 
        laws--including more robust worksite enforcement and increased 
        compliance with visa requirements.
    To date, SBI has had significant success in ending ``catch and 
release'' of aliens apprehended between ports of entry along the SW 
border for all Central American countries except one country (which has 
some unique issues). This success is a direct result of close 
cooperation between ICE and CBP to increase the efficiency of the 
apprehension and removal system as a whole including gaining 
efficiencies in obtaining travel documents, expanding the use of 
expedited removal and carefully monitoring the use of detention 
resources.
    From the inception of SBI, ICE and CBP have been and continue to be 
major contributors to the initiative. In fact, ICE and CBP conduct the 
majority of the SBI ground work and are the key players chartered with 
ensuring SBI's success. As SBI develops, ICE and CBP will continue to 
coordinate around this shared mission and vision of a more secure 
border.

                      ICE-CBP COORDINATION COUNCIL

    To complement and solidify the effectiveness of the Second Stage 
Review Organization and the SBI initiative, CBP and ICE, under the 
Secretary's direction, created the ICE-CBP Coordination Council. The 
Council meets regularly to proactively consider and address issues to 
better coordinate and resolve operational and policy matters and to 
monitor implementation of Memoranda of Understanding (MOUs), among 
other things. The Council reports to the Secretary on outstanding 
issues, resolutions, and disagreements that require further direction 
or de-confliction. The Council also interacts closely with the 
Assistant Secretary for Policy, the Director of Operations Coordination 
and the Chief Intelligence Officer.
    The Council is co-chaired by the leaders of each agency, and 
membership includes the heads of the main operational divisions and 
main policy and planning arms of both ICE and CBP. The Council's 
ongoing mission is to identify and address areas where greater 
cooperation can enhance mutual achievement of our missions and be 
proactive in fostering improved coordination efforts. It addresses a 
revolving agenda of ICE-CBP touch points, developing, as appropriate 
and necessary, interagency policies, prioritizations, and procedures to 
better guide ICE and CBP interactions and communicate roles and 
responsibilities in those matters.
    The ICE-CBP Coordination Council has, and will continue to address, 
at a national level, appropriate touch points that are raised 
internally, or from the field level. An example of the Council's 
procedural review process is its evaluation of existing ICE-CBP MOUs on 
referrals. During a Council meeting in February, for example, ICE and 
CBP agreed to issue a joint memorandum to clarify and reinforce key 
components of the existing policies by which CBP refers cases to ICE 
for investigation and to ensure that enforcement results are routinely 
and effectively shared between the two agencies. The signatories of 
this memorandum will be Acting Commissioner Spero and Assistant 
Secretary Myers, prior to its distribution to the field.

                     RESULTS_ORIENTED COORDINATION

    A prime example of the kind of integration and cooperation which 
the Department envisions as the future of ICEcCBP operation is the 
established Border Enforcement Security Task Forces or BESTs along the 
Southwest border. These DHS-led task forces are comprised of ICE, CBP, 
the DHS Office of Intelligence and Analysis, and other Federal, State, 
and local entities. The goal of the BESTs is to improve border security 
through the creation of an environment that fosters cooperation and 
collaboration. A BEST in Laredo, Texas has been operational for several 
months now and is a model for widespread cooperation and efficacy. It 
has already improved DHS's effectiveness against criminal activity. In 
March a second BEST began in Tucson, Arizona. Planning is underway for 
future task forces.
    The BESTs are charged with sharing information, developing priority 
targets, and executing coordinated law enforcement operations designed 
to enhance border security and interior enforcement efforts. BESTs 
ensure that resources are appropriately focused and expended to 
identify and prioritize emerging or existing threats in order to 
disrupt and dismantle cross-border criminal organizations to mitigate 
border security vulnerabilities. BESTs focus on DHS strategic border 
security priorities, including
         Identification and Apprehension of Threats to National 
        Security
         Cross-Border Violence
         Cross-Border Human Smuggling and Trafficking
         Cross-Border Contraband Smuggling
         Cross-Border Money Laundering and Bulk Cash Smuggling
         Transnational Criminal Gangs
         Cross-Border Weapons Smuggling or Trafficking
         Travel Document-related Identity Theft and Benefit 
        Fraud
         Cross-Border Drug Smuggling
    Such initiatives and other ongoing enhancements will ensure that we 
are carefully monitoring, measuring, and implementing mechanisms to 
enhance coordination. At the same time, ICE and CBP have been working 
steadily to build a better relationship at all levels. Both ICE and CBP 
have increased productivity in virtually every facet of their law 
enforcement activities, in many cases breaking annual enforcement 
records. Recent MOUs between ICE/Office of Investigations (OI) and 
CBP's Office of Border Patrol (BP) and Office of Field Operations (OFO) 
demonstrate that the necessary policy and operational coordination is 
occurring and continues to evolve.
    While the core missions of CBP and ICE differ, CBP is primarily 
focused on interdiction and ICE on investigation of cross-border crime 
and the continuum of that crime into the interior, they are 
complementary. Together ICE and CBP have generated many cooperative 
successes in the last two years, such as Operation ICE Storm, Operation 
Texas Hold `Em, the ABC Initiative, the LAX Initiative, and the 
Expedited Removal Working Group.
    DHS supports and participates in the Human Smuggling and 
Trafficking Center (HSTC) an interagency intelligence/law enforcement/
diplomacy fusion center and information clearinghouse created to combat 
human smuggling, human trafficking and criminal support of terrorist 
travel. An ICE supervisory special agent is the HSTC's director and it 
disseminates a large volume of information to CBP.
    In addition to these achievements in inter-agency coordination, 
both agencies have accomplished intra-agency coordination and 
integration. For example CBP has made great strides in its own merger 
at integrating its inspectional workforce, aspiring to One Face at the 
Border. More then 37 cross training modules have been built and 
implemented in the field. These modules not only cross train the 
existing personnel who were on-board at the time of the merger, but are 
also the key components in the 2-year on-the-job-training for all new 
CBP Officers. To date, students filling more than 112,660 training 
slots have passed through these courses. In the past year alone, more 
then 7,300 CBP Officers and Agriculture Specialists have taken the 
Anti-Terrorism courses and more then 13,150 employees have taken the 
fraudulent document detection courses.
    ICE, overcoming enormous challenges to fulfill its mission, has 
accomplished much in the last two years. As the second largest federal 
contributor of agents to the FBI's Joint Terrorism Task Force, ICE has 
increased the number of ICE cases by 500 percent. In Worksite 
Enforcement, ICE targeted critical infrastructure worksites, including 
airports in Operation Tarmac that resulted in the arrest of more than 
1,190 unauthorized alien workers with 782 criminal indictments, and 
nuclear power plants in Operation Glow Worm which resulted in the audit 
of 63,835 employee records. Fighting identity and benefits fraud, in 
fiscal year 2005, ICE initiated 3,894 investigations, leading to 914 
criminal indictments. Investigating arms and strategic technology 
violations, ICE has initiated 5,670 investigations into illegal exports 
and has netted 431 arrests, 305 indictments and 282 convictions since 
the formation of the agency.
    Additionally, in FY 2005, CBP cleared 86 million arriving air 
passengers from abroad. This is the largest number of air passengers 
traveling to the United States in history, and also marks the first 
year that the number of air passengers surpassed pre-9/11 levels. In FY 
2005 CBP officers at ports of entry arrested more than 7,600 persons on 
outstanding state or federal warrants, more than a 40 percent increase 
over FY 2003. Over the last two years, CBP did its part to combat 
identity and document fraud through the successful implementation of 
the Machine Readable Passport and Digital Photograph requirements for 
travelers from Visa Waiver countries. In addition, CBP intercepted more 
than 75,000 fraudulent documents in both FY 2004 and FY 2005 and last 
year denied entry to almost 500 persons who presented a terrorism or 
national security threat, more than a 20 percent increase over FY 2004. 
between our ports of entry, the CBP Border Patrol again apprehended 
more than 1.1 million individuals attempting to illegally enter the 
United States, and the CBP P-3s based in Jacksonville, Florida and 
Corpus Christi, Texas contributed to the seizure of over 210,779 pounds 
(105 tons) of illegal drugs--over 38,600 more pounds (19 tons) than 
last year. Sec. 

                               CONCLUSION

    I speak for the Secretary when I say that the level of focus at the 
Department--which we are undertaking--involves innovative and 
integrated thinking to create a truly integrated Department, 
particularly concerning ICE and CBP. Staying with this course of 
results-oriented coordination is a far better solution to securing the 
border and enforcing immigration law than imposing a massive 
reorganization through a merger of CBP and ICE. Indeed, the Inspector 
General's latest testimony [March 28, 2006] on this subject concludes, 
``since our report, DHS has created the Secure Border Initiative, 
(SBI), the ICE-CBP Coordination Council, and Office of Intelligence and 
Analysis. These efforts are intended to address coordination issues and 
help integrate CBP and ICE operations. From what we know of these 
emerging efforts, we believe that the Department is taking the 
necessary steps toward addressing the coordination problems and, thus, 
our recommendations.''
    Our gravest concern is that a merger would have precisely the 
opposite effect. The time and attention that it would take to 
restructure these two organizations under one figurative head would 
divert critical resources away from the critical DHS missions which 
demand our Department's focus. Indeed, a merger would yield a 
protracted period (at a minimum six months to a year) of disruption, 
mission confusion, and organizational churn, thus undermining the 
operational effectiveness of CBP, ICE, and, frankly, the Department at 
large.
    The Department is grateful to this committee for its attention and 
support during the first years of our formation. We look forward to 
working hand-in-hand with this committee as we develop new 
technologies, enhance methodologies, and, critically, measure whether 
our efforts are achieving real results. Conscious of our obligations to 
protect the Nation through effective border control, we have studied 
our enforcement challenges intensely. Through the Second Stage Review, 
SBI, the ICE-CBP Coordination Council and other initiatives I have 
discussed with you today, I believe the Department has provided a 
roadmap for change and improvement in its performance, accountability, 
coordination, and management of personnel and duties.
    The Department is fully committed to meeting the many challenges 
that any recently created organization faces and we believe we have 
made significant inroads in confronting the change needed to be more 
effective for the American people. Thank you once again for the 
opportunity to discuss these issues with you, and I look forward to 
answering your questions.

    Mr. Rogers. The Chair now recognizes the Honorable Julie 
Myers, Assistant Secretary for U.S. Immigration and Customs 
Enforcement for Homeland Security.
    Thank you being here, and I look forward to your statement.

              STATEMENT OF THE HON. JULIE L. MYERS

    Ms. Myers. Thank you for having me, Chairman Rogers, 
Ranking Member Meek and distinguished members of the 
subcommittee. It is my privilege to be here with you today to 
talk about ICE and CBP and their coordination.
    As you know, the Homeland Security Act of 2002 prompted the 
largest reorganization of the Federal Government in more than 
50 years; and after a degree of turbulence in its early years, 
I am pleased to report that ICE has now achieved a measured 
improvement in organizational and funding stability and a 
growing record of operational success.
    In fact, since joining the agency in January, I have had 
the opportunity to visit with many, many of our employees in 
field offices all across the country. I have listened to these 
individuals, I have shared in their success, and I have heard 
their frustration; and already we have taken significant steps 
to address their concerns and to ensure that field 
relationships continue to improve.
    It was clear to me from my visit to the field that, despite 
the challenges we have faced, that the men and women of ICE are 
having tremendous success in fulfilling their mission; and to 
me this demonstrates why a merger of our agencies is not 
necessary. In lieu of a merger, I believe that the Nation is 
best served by permitting ICE and CBP to remain focused on 
their respective interdiction and investigative missions, while 
increasing cooperation where it is most beneficial and also 
ensuring cooperation throughout the entire Department of 
Homeland Security with our many other partners who play 
important roles here. We are in the best position to recognize 
those areas in which ICE and CBP must work closely together and 
those areas where ICE and CBP have separate missions.
    I would like to elaborate a little further on what 
Assistant Secretary Baker noted as a few examples of excellent 
cooperation between ICE and CBP. One of one of them certainly 
is the new Border Enforcement and Security Task Forces.
    As Assistant Secretary Baker noted, we have one down in 
Laredo that has had tremendous success, but something I want to 
point out is that that was a field initiative. It actually 
started at the field level and bubbled up to headquarters where 
field folks saw ways that they could work together in an 
intelligence task force they called Operation Blackjack 
initially.
    We have seen that success, and we are trying to model that 
in Arizona and other parts throughout the southwest border. In 
fact, just yesterday, this team was recognized by the Secretary 
for its tremendous work and cooperation.
    Another example would be the ICE forensic document lab. It 
directly supports both ICE and CBP operations. CBP regularly 
refers suspect documents for lab analysis, and information 
between ICE and CBP is shared on trends and patterns and is 
also very useful for our new Document and Benefit Fraud Task 
Forces.
    Also, as Assistant Secretary Baker noted, the expanded use 
of expedited removal has assisted ICE and CBP in removing more 
aliens apprehended at the border and the interior of the United 
States. Implementation of a new policy that we have developed 
Department-wide has resulted in a dramatic decrease in the time 
it takes to deport other than Mexicans from an average of 90 
days down to 22 days.
    I also want to elaborate just for a moment on a few 
examples of ICE successes within ICE's own distinct set of 
missions.
    First, since ICE became an independent agency, we have 
really been able to use financial investigative methods in 
concert with our immigration authorities; and we are showing 
some tremendous results. In fact, assets seized in immigration-
related criminal investigations grew from only 400,000 in 
fiscal year 2003 to nearly 34 million in fiscal year 2005.
    We have also increased the number of our fugitive operation 
teams that target absconders, those individuals with a final 
order of removal and who evaded it. We now have 35 fugitive 
operation teams in place and will have 52 by the end of this 
fiscal year.
    Last year, in fiscal year 2005, with only 17 teams in 
operation, we effectuated over 11,000 fugitive arrests. Since 
February of 05, we have arrested over 2,500 gang members from 
239 different gangs and we have seized 122 firearms.
    Finally, we have teamed up with the several governments in 
Latin America to conduct new trade transparency units to combat 
trade-based money laundering and other financial crimes.
    Why are we having success? In my view, it is the 
perseverance and professionalism of the men and women of ICE. 
They have achieved much in just 3 short years. I believe 
preserving ICE as an independent agency capable of focusing 
directly upon its core mission and operations is critical to 
our continuing efforts to protect the American people from 
criminal and other threats that arise from our borders.
    I would be pleased to answer your questions after Ms. Spero 
talks, and I would ask that my full remarks be incorporated 
into the record.
    Mr. Rogers. It will. I want to thank you, Ms. Myers, for 
being here.
    [The statement of Ms. Myers follows:]

                   Prepared Statement of Julie Myers

                         Thursday, May 11, 2006

INTRODUCTION
    Good afternoon, Chairman Rogers, Ranking Member Meek and 
distinguished Members of the House Homeland Security Management, 
Integration and Oversight Subcommittee. It is my privilege to be with 
you today to discuss how ICE is applying its expertise and authorities 
to protect the American people from threats that cross our borders.

THE ICE MISSION
    Within the Department of Homeland Security (DHS), ICE has expansive 
investigative authorities and the largest number of criminal 
investigators. ICE is the Nation's principal investigative agency for 
violations of the law that have a nexus to our borders. Our mission is 
to protect the American people by combating terrorists and criminals 
who seek to cross our borders and threaten us here at home.
    In furtherance of our mission, ICE personnel are assigned overseas, 
along the borders, and throughout the Nation's interior. ICE special 
agents and officers utilize their unified immigration and customs 
authorities to identify, investigate, apprehend and remove potential 
terrorists and transnational criminal groups that seek to move 
themselves, their supporters or their weapons across the Nation's 
borders through human, drug, contraband or financial smuggling 
networks, routes and methods.
    Within the Nation's interior, ICE's Federal Protective Service 
(FPS) carries out its statutory responsibility to protect federal 
property, buildings and their occupants. FPS provides security and law 
enforcement services to 9,000 federal facilities and one million 
federal employees and visitors on a daily basis, thereby preventing 
criminal and terrorist attacks against our critical infrastructure and 
resources. Through each of these efforts, ICE continues to make strong 
contributions to the security of our Nation and its borders.

DHS ORGANIZATION
    The creation of the Department of Homeland Security in 2003 
prompted the largest reorganization of the federal government in more 
than 50 years. While several agencies, such as the U.S. Coast Guard and 
the U.S. Secret Service, joined DHS intact, others, such as ICE, were 
created from the constituent elements of legacy agencies. As a result, 
the management challenges associated with establishing ICE, the largest 
investigative agency within DHS, were significant. Compounding these 
challenges were severe financial shortfalls in 2003 and 2004 that have 
since been corrected with Congressional assistance and improved 
financial management. ICE also underwent further organizational changes 
with the 2004 transfer of the Office of Air and Marine Operations (AMO) 
to U.S. Customs and Border Protection (CBP), and the 2005 transfer of 
the Federal Air Marshals Service (FAMS) from ICE back to the 
Transportation Security Administration (TSA).
    I am pleased to report that ICE has now achieved a measured 
improvement in organizational and funding stability. We have overcome 
many of the transitional challenges associated with the agency's 
creation and early development. The resolution of budget constraints 
and organizational challenges has permitted ICE to increase its focus 
on making strong operational contributions to our border, homeland and 
national security. ICE is producing dramatic results across the full 
range of ICE field operations and we are achieving ever-greater 
synchronization with CBP.

        The Inspector General's Merger Recommendation
    Prompted in part by public reports detailing the transitional 
challenges associated with ICE's early development in 2003 and 2004, 
Congress requested in January 2005 that the DHS Inspector General (IG) 
assess the benefits of a possible merger of ICE and CBP. The IG 
conducted the bulk of its fieldwork between February and June 2005--a 
time in which many of the challenges associated with ICE's early 
development had yet to be fully resolved. The final November 2005 IG 
report included 14 recommendations for improving the cooperation 
between ICE and CBP, while recommending a suggested merger of the two 
agencies.

        DHS-Second Stage Review
    While the IG audit was underway, DHS was conducting its own 
internal, organizational review. Secretary Chertoff announced the 
results of the Department's Second Stage Review (2SR) in July 2005, 
which led to the dissolution of the Border and Transportation Security 
(BTS) directorate, a management layer between the Department's 
leadership and its component agencies. This streamlining of the 
Department's organization led to direct lines of reporting between the 
Secretary and ICE and CBP. Now there is the Secure Border Initiative 
(SBI) office, a Departmental-level office that functions, in effect, as 
the engine for increasing ICE and CBP synchronization across the full 
range of interdiction, investigative, and detention and removal 
functions.
    These proactive steps have now eliminated the need for the 
Department to incur the additional and substantial costs and risks 
associated with a merger. The Department's overarching strategy 
supports efforts by ICE and CBP to remain focused on strengthening 
their respective investigative and interdiction mission areas, while 
simultaneously improving cooperation between the two agencies.
    The following structural changes have increased Department-wide 
cooperation:
         The development and Department-wide implementation of 
        a Directorate for Policy and an Office of Operations 
        Coordination. These Departmental units work directly with ICE 
        and CBP to achieve greater efficiencies in our border security, 
        interdiction, investigative, apprehension, and detention and 
        removal operations. The Office of Operations Coordination is in 
        the process of establishing a new capability to design metrics 
        that will support efforts to constantly assess data, measure 
        results and make operational changes accordingly across the 
        Department.
         DHS has also created a new Chief Intelligence Officer 
        position, which includes oversight of a border security unit 
        devoted entirely to the development of analysis, methodologies 
        and requirements that will improve the fusion of border 
        security information while alerting ICE and CBP to 
        vulnerabilities that could be exploited by terrorist and other 
        transnational criminal organizations along the southern and 
        northern borders.
         The ICE/CBP Coordination Council provides a high-level 
        forum for ICE and CBP senior management to identify and resolve 
        outstanding issues between the agencies. ICE and CBP are 
        aligning priorities in some important areas of shared mission. 
        This will allow both agencies to effectively leverage each 
        other's capabilities to achieve the highest levels of 
        performance.
         The DHS Under Secretary for Management and the Chief 
        Financial Officer collaborate directly with ICE and CBP to 
        ensure greater degrees of transparency and cooperation 
        throughout both agencies' budget formulation and strategic 
        planning processes.
         By holding weekly SBI meetings with leadership from 
        ICE, CBP and other involved Departmental offices, Secretary 
        Chertoff maintains direct oversight of the agencies and signals 
        his personal commitment to having ICE and CBP work in concert 
        at all levels with the Department and one another.
         The creation of a standing SBI program office within 
        the Department's Policy Directorate also provides high level 
        direction and guidance to ICE and CBP across the full range of 
        border and interior investigation, interdiction, enforcement, 
        detention and removal operations and functions.
    Ongoing organizational improvements resulting from Secretary 
Chertoff's 2SR, as well as the SBI program office, show that the 
Department's decision not to merge ICE and CBP was correct.
    ICE believes that the Department's decision to maintain separate 
agencies is correct for four principal reasons.
         ICE is producing results in every area, from removals 
        to partnerships with the Department of Justice and U.S. 
        Citizenship and Immigration Services (CIS) to innovative 
        techniques for catching criminals. ICE is also achieving a 
        record level of success--success not achieved by the component 
        agencies that formed ICE. This is due in large part to the 
        agency's ability to focus and display high level attention on 
        topics that previously had remained the domain of lower levels 
        in the organization.
         A merger would cause another massive bureaucratic 
        reorganization that would inflict significant financial costs 
        while having a profound negative impact on operational 
        efficiency and employee morale. It could take years before a 
        merged unit would reach the level of performance presently 
        achieved by the separate agencies.
         The recommendation to merge does not take into account 
        the fact that identified challenges between CBP and ICE can be 
        (and in fact have been) resolved through means other than a 
        merger. The Department's 2SR review and the creation of the SBI 
        office demonstrate the Department's ability to swiftly identify 
        and build the right mechanisms for harmonizing ICE and CBP 
        operations and programs.
         The DHS IG's merger recommendation also does not fully 
        consider the significant risks associated with losing the 
        operational focus presently displayed by ICE and CBP within 
        their respective core investigative and interdiction mission 
        areas. The risks include the diminished ability to apply 
        focused and disciplined leadership across the full spectrum of 
        core missions, as presently undertaken and carefully directed 
        by ICE and CBP leadership.
    ICE and our colleagues at the Department appreciate the hard work 
conducted by the IG. We continue to address and resolve issues of 
concern raised by the audit. However, it remains our informed 
assessment that homeland security would be best protected if ICE and 
CBP remain focused on their respective investigative and interdiction 
missions, while increasing cooperation where it is most beneficial.
    We agree with a more recent assessment by the General Accounting 
Office (GAO) Director of Homeland Security and Justice, Mr. Richard M. 
Stana, who testified on March 28, 2006, before the House Government 
Reform Subcommittee on National Security, Emerging Threats and 
International Relations in opposition to merging ICE and CBP. Mr. Stana 
stated, ``I think the best thing they can do right now is let [ICE] 
mature, let it stabilize.'' We strongly believe that Mr. Stana's 
assessment is correct. DHS remains strongly committed to preserving ICE 
and CBP as separate agencies and many improvements have already been 
made in the way the two agencies operate individually, and in concert 
with one another.

DHS INITIATIVES
    Since launching the 2SR restructuring of DHS and establishing the 
SBI program office and its related initiatives, Secretary Chertoff has 
continued to aggressively foster a unified organizational culture 
across DHS. The positive impact of these efforts can be seen in several 
ICE and CBP operations and programs. For example,
         In 2006, the Department initiated the first new Border 
        Enforcement Security Task Force (BEST) in Laredo, TX, building 
        upon the success of the multi-agency ICE led Operation 
        Blackjack that began in July 2005. BEST is an intelligence-
        driven task force, comprised of officers from federal, state, 
        and local law enforcement agencies, including the Bureau of 
        Alcohol, Tobacco, Firearms and Explosives (ATF), the U.S. 
        Marshals Service (USMS) and CBP. These agencies share 
        information and target the leadership and supporting 
        infrastructure of violent criminal organizations operating in 
        the Laredo/Nuevo Laredo area. Another BEST task force has been 
        established in Arizona, and ICE and CBP are working together to 
        identify future locations.
         Last month, the Department announced the creation of 
        ten new Document and Benefit Fraud Task Forces across the 
        country to combat the growing problems and national security 
        risks associated with the falsification and counterfeiting of 
        identity documents as well as fraud involving efforts to obtain 
        immigration and other benefits. Along with an existing task 
        force in Washington, D.C., new task forces will be established 
        in Atlanta, Boston, Dallas, Denver, Detroit, Los Angeles, New 
        York, Newark, Philadelphia and St. Paul. Supporting this ICE-
        led effort are the Departments of State, Justice and Labor, as 
        well as other DHS agencies such as U.S. Citizenship and 
        Immigration Services (CIS) and the U.S. Secret Service. ICE and 
        CIS have consistently been engaged in a productive joint anti-
        fraud effort since the Department's creation. With these new 
        Document and Identify Benefit Fraud Task Forces, DHS is leading 
        the federal effort to combat the grave national security 
        vulnerabilities that can arise when potential terrorists and 
        other criminals seek to exploit our immigration system through 
        fraudulent means. A crucial element of this effort is the 
        outstanding work performed by experts at the ICE Forensic 
        Document Laboratory (FDL), which conducts sophisticated 
        forensic analysis of counterfeit and fraudulent travel, 
        identity and immigration benefit documents for ICE and our 
        federal, state, local and international partners.
    The expanded use of expedited removal and the efficiencies gained 
through an initial reengineering of our detention and removal processes 
under the auspices of the Secure Border Initiative have enhanced our 
removal capabilities. The additional beds and support staff included in 
the Administration's FY 2007 budget will allow us to facilitate the 
detention and removal of an additional 100,000 illegal aliens annually. 
This substantial increase in ICE capacity will strengthen deterrence by 
demonstrating to potential violators that apprehension is synonymous 
with removal from the United States.
         By reengineering ICE and CBP processes, the Department 
        has continued to decrease the time it takes to remove non-
        Mexican (OTM) illegal aliens from this country. This new 
        expansion of expedited removal (ER) policy permits the 
        accelerated removal of such individuals apprehended within 14 
        days of entry and within 100 miles of the borders. To date, ER 
        has decreased the average number of days that OTMs are detained 
        from 90 to 22. By reducing the average detention time, the 
        Department has, in effect, made available a greater number of 
        beds and associated infrastructure to support additional 
        capacity.
         ICE and CBP also work closely to ensure the integrity 
        of their respective work forces. Staffed by both agencies 24 
        hours per day, the ICE/CBP Joint Intake Center (JIC) was 
        established to receive, document, route and track misconduct 
        allegations involving ICE and CBP personnel. Furthermore, ICE's 
        Office of Professional Responsibility conducts all criminal 
        investigations declined by the DHS Office of Inspector General 
        involving both ICE and CBP employees.
         Through the Security and Prosperity Partnership of 
        North America (SPP), ICE and CBP are actively engaged in DHS' 
        cooperative efforts with the Governments of Canada and Mexico. 
        For example, we are working with Mexican officials to combat 
        border violence and improve public safety. In March, Secretary 
        Chertoff met with the Secretary of Governance of Mexico, Carlos 
        Abascal, to sign an action plan that strengthens cooperative 
        procedures between federal law enforcement agencies on both 
        sides of the border and the ability of our agencies to respond 
        effectively to scenarios ranging from accidental crossings to 
        incidents of violence. ICE and CBP are firmly committed to 
        coordinating law enforcement efforts with the Government of 
        Mexico--whether combating cross-border crime in Laredo, Texas, 
        reducing the number of human smugglers operating along the 
        southwest border, or uncovering cross-border tunnels in 
        California and Arizona.
    While significant gains have been made in coordinating both 
Department-wide and ICE/CBP operations with shared or overlapping 
mission sets, the Department's current structure also allows both 
agencies to develop expertise in their own mission areas without 
competing priorities.

THE ICE FOCUS
    By maintaining ICE as an independent agency, the Department 
continues to signal two national requirements that are prerequisites 
for effective homeland security:
         The need for a federal law enforcement agency 
        dedicated to investigating crimes that arise from and are 
        associated with our borders and related border activity, 
        including lawful and illicit commerce, trade and travel. This 
        dedicated, investigative capability provides a critical layer 
        of protection against threats to our homeland and national 
        security that arise from our borders.
         The vigorous enforcement of immigration laws at our 
        borders and throughout the interior, including the continued 
        development of infrastructure and mechanisms needed to swiftly 
        apprehend, detain and remove illegal aliens from this country.
    Having reached a more stable organizational and funding level this 
year, ICE has devoted maximum attention to these objectives.
    One of the most significant developments to flow from the 
unification of the nation's customs and immigration authorities under 
ICE has been the aggressive application of financial investigative 
methods to disrupt and dismantle criminal organizations involved in 
immigration and human smuggling and trafficking violations. By 
leveraging these authorities, ICE is now identifying and seizing the 
profits of criminal organizations that once thrived and generated 
extensive wealth from violating immigration laws.
    Assets seized in immigration-related criminal investigations grew 
from $400,000 in FY2003 to more than $34 million in FY2005. We expect 
these numbers to increase as ICE special agents identify and uncover 
more sophisticated immigration fraud, human smuggling and trafficking 
conspiracies.
    In addition, ICE is targeting its investigations to close national 
security vulnerabilities and to ensure the integrity of our nation's 
critical infrastructure facilities, including nuclear power and 
chemical plants, military installations, seaports, airports and other 
sensitive facilities.
    ICE is also moving aggressively to increase the number of our 
Fugitive Operations teams that target absconders - those persons with a 
final order of removal who seek to evade apprehension. At the present 
time, we estimate the absconder population to be more than 550,000. The 
President's Budget includes additional resources to fund a total of 70 
Fugitive Operations teams.
    In March, ICE announced another wave of nationwide arrests of 
violent gang members who are immigration status violators. Since 
February 2005, ICE has arrested 2,596 gang members from 239 different 
gangs and has seized 122 firearms. Fifty-four of those arrested were 
gang leaders and approximately 984 of those arrested were affiliated 
with the violent Mara Salvatrucha (MS-13) gang. Of the total number of 
gang members arrested, 586 have been charged criminally for drug, 
firearms, immigration, and Racketeer Influenced and Corrupt 
Organizations (RICO) violations. Another 1,855 have been charged with 
administrative violations of our immigration laws.
    We also are strengthening our capacity to pursue those who 
illegally seek to launder money, especially through the growing use of 
trade-based money laundering techniques. Criminal enterprises have long 
misused international trade mechanisms to avoid taxes, tariffs, and 
customs duties. ICE has created the Trade Transparency Unit (TTU) to 
identify anomalies in cross-border trade data that indicate potential 
international trade-based money laundering. By sharing trade data with 
foreign governments, ICE and participating governments can see both the 
import and export side of commodities entering or leaving their 
countries. This facilitates the trade transparency needed to identify 
and investigate international money launderers and money laundering 
organizations.
    ICE launched the first TTU in Colombia to share information, assess 
risks, and conduct intelligence-driven, trade-based money laundering 
investigations. Using U.S. Department of State funding from ``Plan 
Colombia,'' ICE provided support to Colombian authorities and initiated 
trade-based data exchanges. U.S. investigative leads are vetted by the 
TTU and disseminated to ICE Special Agent in Charge offices for 
investigation, while Colombian leads are disseminated to our Colombian 
counterparts for investigation. With funding from the State Department, 
ICE has provided Colombia with 215 computers and other equipment. This 
has strengthened the Colombian Customs Service's infrastructure 
modernization project and increased trade transparency to combat trade-
based money laundering, drug trafficking, contraband smuggling, tax 
evasion and other crimes involving Colombia and the United States.
    ICE's enforcement of the Bulk Cash Smuggling law does not end at 
our Nation's borders. In August 2005, ICE partnered with CBP and the 
State Department to initiate a joint training program for our Mexican 
counterparts on the methods used to smuggle bulk currency. As a direct 
result of this hands-on training, our Mexican counterparts seized 
during pulse and surge operations conducted over a 9-month period over 
$30 million in cash and negotiable instruments that violated Mexican 
currency-reporting laws. The day after this highly successful joint 
operation--known as Operation Firewall--was launched in August 2005, we 
witnessed the single largest bulk cash seizure in Mexico: $7.8 million 
dollars. ICE has worked with our Mexican counterparts to tie these 
seizures to larger investigations conducted in Mexico, the United 
States, and other South American countries. Building on the proven 
success of this initiative in Mexico, pulse and surge operations 
commenced again in March 2006, resulting in two seizures totaling over 
$7 million dollars within the first few days of the operation. Separate 
from our work with Mexican authorities, ICE continues to provide 
training programs to nations throughout the world in efforts to combat 
bulk cash smuggling. The State Department continues to fund these 
international initiatives and we are grateful for its support.
    ICE is also a critical partner in the FBI led Joint Terrorism Task 
Forces (JTTFs), contributing significant resources second only to the 
FBI, in our Nations fight against terrorism.
    Collectively, these ongoing ICE missions, programs and operations 
strengthen our border, homeland and national security and underscore 
the progress made since ICE's creation in 2003. I credit the 
perseverance and professionalism of the men and women of ICE for 
achieving so much in three short years. Preserving ICE as an 
independent agency--capable of focusing directly upon its core mission 
and operations--is critical to our continuing efforts to protect the 
American people from criminal and other threats that arise from our 
borders.

CONCLUSION
    As the Department of Homeland Security's principal investigative 
agency, ICE is demonstrating that it is uniquely equipped to enforce 
our nation's laws and to protect the American people.
    Although ICE is a new agency, we aggressively apply our unified 
immigration and customs authorities to identify and address 
vulnerabilities affecting the borders and the Nation's homeland and 
national security. At the same time, we bring to this effort the best 
of our former agencies' expertise, cultures, and techniques as we 
continue to improve the efficiency of this new federal law enforcement 
agency. In case after case, ICE agents, officers, analysts, and other 
personnel are putting into practice, on behalf of the American people, 
the powerful advantages that flow from our unified authorities. The 
result is a strong and growing contribution to the Nation's border, 
homeland and national security.
    While the Department has made great strides in fostering a high 
degree of cooperation and synchronization between ICE and CBP for 
coincident mission areas, both agencies have succeeded in focusing on 
their respective core mission areas that do not require high degrees of 
coordination. We continue to demonstrate the significant value of 
retaining both agencies' independence, while simultaneously producing 
homeland security benefits derived from close inter-agency cooperation.
    The men and women of ICE are grateful for the opportunity to serve 
the American people and, on their behalf, I thank this subcommittee, 
its distinguished members and Congress for your continued support of 
our work.
    I would be pleased to answer your questions.

    Mr. Rogers. The Chair now recognizes Ms. Deborah Spero, 
Acting Commissioner for Customs and Border Protection of the 
U.S. Department of Homeland Security.
    We welcome you and look forward to your statement.

                 STATEMENT OF DEBORAH J. SPERO

    Ms. Spero. Thank you, Chairman Rogers, Ranking Member Meek 
and distinguished members of the subcommittee. It is an honor 
to appear before you today to discuss the cooperative working 
relationships between U.S. Customs and Border Protection and 
U.S. Immigration and Customs Enforcement. I am very pleased to 
be here today with my colleagues, Assistant Secretary Baker and 
Assistant Secretary Myers.
    I would like to begin just by expressing my gratitude to 
the subcommittee for the strong interest you have shown in CBP. 
I particularly appreciate the time you have taken in your 
oversight role to visit our front-line offices to see firsthand 
the challenges we face in securing our borders.
    I am confident that, working with the Congress, CBP and ICE 
can succeed together in our responsibilities to the American 
people.
    As you know, as part of the process through which the 
Department of Homeland Security was established about 3 years 
ago, CBP was formed by joining much of the Customs Service with 
the Border Patrol, border inspection elements of the 
Immigration and Naturalization Service and border inspection 
personnel from the U.S. Department of Agriculture. This new 
agency had a critical priority mission to prevent terrorists 
and weapons of mass destruction from entering the United 
States.
    To succeed at this mission, we in CBP focus on what we call 
our two twin goals: the goals of securing our borders at and 
between the ports of entry, while simultaneously facilitating 
legitimate trade and travel.
    Because personnel and operational relationships already 
existed between the agencies, CBP's close working ties to ICE 
at both the managerial and the field levels were already in 
place when DHS was created. We have now institutionalized these 
relationships at the headquarters level, and we continue to 
support each other effectively while maintaining the necessary 
autonomy of the two organizations, each with their unique and 
important missions.
    I want to strongly second Assistant Secretary Baker's 
remarks about the Second Stage Review, or 2SR. The new DHS 
organization which resulted from 2SR provides Secretary 
Chertoff with direct oversight of the agency's operational 
components. Working closely with component leadership, the 
Secretary can ensure that each agency's operations are focused 
on the Department's priorities, that agencies coordinate 
appropriately, and that agency heads are held accountable for 
mission accomplishment.
    And, as noted, under the Secretary's direction, the CBP-ICE 
Coordination Council was established and meets regularly; and 
we think this Council is an excellent forum for discussion of 
our shared objectives in both policy and operational issues.
    At the field level, there is extensive interaction and 
cooperation between ICE and CBP. Within CBP, both the Office of 
the Border Patrol and the Office of Field Operations have 
established memoranda of understanding with the ICE Office of 
Investigation; and these MOUs provide that the ICE Office of 
Investigation has primary responsibility for investigations 
resulting from the work of CBP's border interdiction 
operations.
    Under these MOUs, frequent discussions are held between 
CBP's Border Patrol sector chiefs and field directors and the 
ICE special agents in charge and resident special agents in 
charge on operational planning, communications and information 
sharing. These discussions and a strong commitment to 
cooperation have resulted in significant improvements in the 
joint capabilities of both agencies and numerous successful 
joint operations.
    In the interest of time, I won't go into these operations, 
but there are many of them; and we would be more than happy to 
provide additional information.
    In addition to the operational examples, which we would 
like to discuss at some later point in time, there are many 
other areas where CBP and ICE collaborate closely with great 
success. Through regular meetings, joint planning, and real-
time coordination, CBP and ICE are working together on the full 
range of operational and information-sharing activities 
required to ensure optimal mission achievement by both 
agencies. In fact, over the last year we have initiated new 
information-sharing efforts to include more effective protocols 
and more cooperation in the area of terrorist-related threat 
warnings, joint strategies for utilization of biometrics, 
sharing of daily incident threat analysis, pursuit of joint 
training opportunities, coordinated intelligence-driven special 
options, JTTF program alignment, and international notification 
protocols.
    Thank you very much for the opportunity to testify before 
you today, and I will be happy to answer any questions you 
have.
    Mr. Rogers. Thank you, Ms. Spero.
    [The statement of Ms. Spero follows:]

                 Prepared Statement of Deborah J. Spero

                              May 11, 2006

I. Introduction
    Chairman Rogers, Ranking Member Meek, Members of the Subcommittee, 
it is a privilege to appear before you today to discuss the cooperative 
working relationship that U.S. Customs and Border Protection (CBP) has 
with its sister agency, U.S. Immigration and Customs Enforcement (ICE).
    I want to begin by expressing my gratitude to the Subcommittee for 
the strong interest you have shown in CBP and ICE, and the time you 
have taken in your oversight role to visit our front line officers to 
see first hand the challenges we face in securing our borders. I am 
confident, working with the Congress that CBP and ICE can succeed 
together in our responsibilities to the American people.

II. Creating the Department of Homeland Security
    Please allow me to briefly cover some history of CBP and its role 
in the Department. In March 2003, components of 22 different Federal 
agencies were brought together to form the Department of Homeland 
Security (DHS). Recognizing the need to have a single border 
enforcement agency, CBP was formed by joining much of the U.S. Customs 
Service, with the Border Patrol, border inspection elements of the 
Immigration and Naturalization Service, and border inspection personnel 
from the U.S. Department of Agriculture. CBP acts as the guardian of 
the Nation's borders, safeguarding the homeland by protecting the 
American public against terrorists and the instruments of terrorism, 
while enforcing the laws of the United States and fostering the 
Nation's economic security through lawful travel and trade.Sec. 
    In addition to CBP, the new Department included six other 
operational component agencies (ICE, the Transportation Security 
Administration, U.S. Citizenship and Immigration Services, the U.S. 
Coast Guard, Secret Service and the Federal Emergency Management 
Agency). All seven agencies were changed to some degree by the creation 
of DHS, and all had to develop new working relationships with each 
other. Since ICE and CBP shared legacy portions of both the U.S. 
Customs Service and the Immigration and Naturalization Service, and 
because the missions of the two agencies formed a significant continuum 
of law enforcement, these two agencies needed to create particularly 
strong cooperative networks, from headquarters through the field 
commanders to the front line officers. I am pleased to report today on 
the details of the significant progress we have made in this effort.
    While in the midst of forming effective working relationships with 
ICE and the other DHS component agencies, the newly formed CBP also had 
to launch a parallel effort internally to bring together four different 
work forces inherited from the legacy agencies. At the ports of entry, 
where inspectional staff from several agencies were merged into one 
organization, we established as our goal ``One Face at the Border,'' a 
comprehensive approach to forging the disparate elements of the legacy 
agencies into a unified and effective workforce, focused on the new 
anti-terrorism mission. Between the ports of entry, the Border Patrol 
was also facing unique challenges, re-focusing on anti-terrorism as its 
priority mission and entering a period of rapid growth to meet new 
mandates to gain more effective control of the border and improve 
interdiction of illegal immigration.
    Our transition management process focused on the changes needed to 
bring CBP together as one agency with a single culture and one mission 
to which all our personnel felt a sense of commitment and dedication. 
We fully utilize the unique talents and expertise of all personnel from 
the legacy agencies to achieve this mission.
    In October 2004, while continuing to move forward on ``One Face at 
the Border'' and other unification initiatives, Secretary Ridge moved 
the air and marine force from ICE to CBP, combining two operational 
entities with similar missions into one agency with a single chain of 
command and a clear, coordinated mission set. Specifically, ICE's 
Office of Air and Marine Operations (AMO) was moved to CBP, where it 
was subsequently consolidated with the Office of Border Patrol's air 
and marine units to form Customs and Border Protection Office of Air 
and Marine (OAM), the single largest unified law enforcement air force 
in the world.
    Within a three year period, CBP has been simultaneously managing 
three separate major reorganizations: the move to a new Department, the 
consolidation of four legacy work forces, and the addition and 
unification of major new operational air and marine forces. While it is 
often said that mergers of this magnitude take many years to be fully 
institutionalized, we are enjoying solid success and realizing 
increasing benefits on a daily basis from the synergy and improved 
operational effectiveness of the new organization.

III. ICE-CBP Headquarters Coordination
    Because personal and operational relationships had already existed 
between the legacy agencies, CBP's close working ties to ICE at both 
the managerial and field levels were already in place when DHS was 
created. I would like to describe how we have institutionalized these 
relationships at headquarters to continue to support each other 
effectively, while maintaining the autonomy of the two organizations, 
each with a unique and important mission.
    Under the Secretary's direction, the ICE-CBP Coordination Council 
was established. The Council meets regularly and has made significant 
progress on policy and operation issues where senior decision makers' 
engagement has produced rapid agreements on joint solutions. Chaired by 
the CBP Commissioner and the ICE Assistant Secretary, the Council's 
core membership includes the operational leadership of both agencies:

------------------------------------------------------------------------
                    CBP                                  ICE
------------------------------------------------------------------------
Acting Commissioner                         Assistant Secretary
------------------------------------------------------------------------
Assistant Commissioner, Office of Field     Deputy Assistant Secretary
 Operations
------------------------------------------------------------------------
Chief, Office of Border Patrol              Director, Office of
                                             Investigations
------------------------------------------------------------------------
Assistant Commissioner, Air and Marine      Director, Office of
                                             Detention and Removal
------------------------------------------------------------------------
Director, Office of Policy and Planning     Senior Policy Advisor
------------------------------------------------------------------------
Director, Office of Anti-Terrorism
------------------------------------------------------------------------

    Through the Coordination Council, CBP and ICE are clarifying 
guidance to the field on referring cases for investigation and handling 
seized property, and we also agreed on a joint response to the 
recommendations in the DHS Inspector General's report entitled, An 
Assessment of the Proposal to Merge Customs and Border Protection with 
Immigration and Customs Enforcement. Under the Council's leadership, we 
developed a strategy for addressing an ICE requirement for temporary 
CBP augmentees to cover a short-term personnel shortage. Additionally, 
we have defined each agency's roles and responsibilities in meeting DHS 
requirements at our overseas embassies and consulates.
    The Air and Marine Operations Council is another major forum for 
CBP/ICE coordination on critical operational issues. The Air and Marine 
Operations Council is a vital part of the new command structure 
designed to make CBP OAM more flexible, effective, and efficient 
against the various threats it combats. Members of the Air and Marine 
Operations Council include the Commissioner and Deputy Commissioner of 
CBP, the Assistant Commissioner for CBP Air and Marine, the Chief of 
the Border Patrol and the Director of the Office of Investigations (OI) 
within ICE. The Air and Marine Operations Council makes recommendations 
on key operational and tactical control matters, ensuring that a 
balanced process is in place for addressing the varied mission 
requirements our aviation program must satisfy.

IV. CBP Border Patrol and ICE Office of Investigations Coordination
    At the field level, there is extensive interaction and cooperation 
between ICE and CBP. In 2004, the CBP Office of the Border Patrol (OBP) 
established a Memorandum of Understanding (MOU) with the ICE OI. The 
MOU established that ICE OI has primary responsibility for all 
investigations into border interdiction/apprehension operations that 
CBP OBP conducts between the ports of entry, with the exception of 
narcotics. Under CBP's Title 21 Delegated Authority, the Drug 
Enforcement Administration (DEA) has the first right of refusal for 
investigation of narcotics cases. When CBP OBP makes a referral to DEA, 
it provides details of the referral and pertinent information and 
intelligence to ICE. Under the MOU, frequent discussions are held 
between CBP OBP Sector Chiefs and ICE Special/Resident Agents in Charge 
on improving operational planning, communications and information 
sharing. These discussions and a strong commitment to cooperation have 
resulted in significant improvements in the joint capabilities of both 
agencies and numerous successful joint operations:
         A Border Enforcement and Security Task Force (BEST) 
        has been created in Laredo, Texas, and in March, a second BEST 
        began in Tucson, Arizona. The BESTs are new arrangements for 
        sharing information, developing priority targets, and executing 
        coordinated law enforcement operations, not only between ICE 
        and CBP, but with State and local law enforcement as well, with 
        the goal of dismantling border criminal organizations.
         In several Sectors, such as El Centro, Del Rio and San 
        Diego, Border Patrol agents have been assigned to ICE Human 
        Trafficking Units to promote improved information sharing and 
        better operational coordination against human smuggling 
        organizations. Co-location of our personnel has been 
        instrumental in breaking up several of these gangs and 
        improving our joint ability to apprehend other-than-Mexican 
        illegal aliens, as well as Special Interest Aliens.
         Local ICE offices periodically assign their Senior 
        Intelligence Research Specialists (IRS) to Border Patrol 
        Special Intelligence Units to improve information exchange and 
        share best practices on intelligence support to operations. 
        This cooperation has contributed directly to improved 
        operational success against human, narcotics and weapons 
        smuggling operations.
         In San Diego, the ICE Special Agent in Charge and 
        Border Patrol Chief Patrol Agent have agreed to use the San 
        Diego Sector Command and Control Intelligence Coordination 
        Center (CCICC) as the conduit for the dispersal of real time 
        and other intelligence from BP to OI and vice versa. All 
        notifications to ICE OI are coordinated through the CCICC and 
        ICE OI has committed to assigning an intelligence analyst to 
        the center for information sharing.
         The Temecula Border Patrol Station has entered into an 
        agreement with the ICE OI ASAC for Riverside/San Bernardino 
        counties to collocate a Border Patrol intelligence agent in 
        their office. The agent facilitates information sharing for 
        joint enforcement operations for alien smuggling/load houses in 
        the Station's area of responsibility. When ICE has a target 
        location they would like to investigate in this area, they pass 
        the information to the Temecula Station and provide a case 
        agent to support an enforcement action.
         Operation Streamline is an outstanding example of how 
        close cooperationbetween ICE's Detention and Removal Operations 
        Office and the Border Patrol has produced a highly successful 
        operation. To support this special operation, the Border Patrol 
        has assigned two Supervisory Agents to the San Antonio DRO 
        office to assist in travel coordination for aliens apprehended, 
        prosecuted, and removed. As part of the multi-layered 
        enforcement effort, the Border Patrol and DRO have worked hand-
        in-hand preparing and coordinating removal proceedings for 
        those aliens requiring appearances before an immigration judge.
         Recently, CBP OBP and ICE cooperated on three high 
        profile operations in New Orleans. CBP OBP Agents manned boats 
        to intercept a drug and alien smuggling load that originated in 
        Colombia, and CBP OBP Agents assisted ICE with the interception 
        of smuggled Chinese workers who were being transported to a 
        place of employment. Additionally, ICE and CBP OBP worked 
        together with the New Orleans Police Department to provide 
        security during the recent Mardi Gras celebrations.
    These are but a few examples of the constant coordination and 
support at the field level between CBP's Office of Border Patrol and 
ICE.

V. CBP Office of Field Operations and ICE Office of Investigations 
Coordination
    The CBP Office of Field Operations (OFO) and ICE OI signed a MOU in 
2005, which has significantly improved mutual support, operational 
planning and information exchange between the two organizations. 
Recognizing that ICE OI is the primary contact for investigative 
matters for CBP OFO, the MOU created a nation-wide council of CBP 
Directors of Field Operations and ICE Special Agents in Charge. This 
council manages a range of interactions that require operational 
coordination across both agencies. The MOU has provided a framework for 
personnel exchanges and improved operational success:
         CBP Officers at land border ports, airports or 
        seaports refer narcotic seizures, currency seizures, and trade 
        fraud interceptions to the local ICE duty agent, who responds 
        with the full investigative capabilities required to prepare 
        these cases for Federal prosecution. This is the most typical 
        interaction between CBP OFO and ICE, and occurs on a daily 
        basis throughout the nation.
         ICE personnel have been assigned to the CBP National 
        Targeting Center (NTC) to support bilateral cooperation on 
        interdiction of attempts to enter the United States by 
        potential terrorists. Working from the NTC, ICE has access to 
        all information on attempted illegal entry of people or goods, 
        and can focus investigative efforts more precisely.
         CBP and ICE have clarified their roles and 
        responsibilities on the FBI-led Joint Terrorism Task Force 
        (JTTF) and have enhanced the complimentary role the two 
        agencies play in that organization. CBP and ICE jointly 
        participated in a conference on JTTF operations in December, 
        2005, which laid the foundation for new operational guidance on 
        mutual support through the JTTF.
                 Joint CBP/ICE planning and implementation of 
                special operations has become a highly sophisticated 
                and successful example of how the two agencies work 
                together to improve national security. Two recent 
                examples of such operations include:
                 Operation Firewall--a bulk-cash interdiction 
                operation coordinated through the ICE Financial 
                Investigations section and the CBP Tactical Operations 
                Division. The purpose of the operation is to intercept 
                drug proceeds in large quantities. In addition to 
                coordinating this operation with DHS, the International 
                Affairs sections of both agencies also coordinated with 
                State Department and the Government of Mexico. As part 
                of this operation, training is being provided to 
                Mexican law enforcement officers in interdiction 
                techniques, which recently resulted in the largest 
                currency seizure in Mexican history ($7.8 million).
         In close cooperation with the ICE-led Operative 
        Blackjack taskforce, the Narco-Violence Initiative was 
        conducted from August 2005 to January 2006, at the Port of 
        Laredo. Driven by a new approach to using actionable and 
        tactical intelligence in the field, the operation has been 
        highly successful in apprehending of criminal gang members 
        linked to border violence in Nuevo Laredo, Mexico, and Laredo, 
        Texas, as well as interdicting narcotics, aliens and bulk cash 
        smuggling activities.
    Once again, these are but a few examples of the day-to-day 
coordination between CBP and ICE at our nation's ports of entry.

VI. Conclusion
    Through personnel exchanges and extensive joint planning, CBP and 
ICE are coordinating today on the full range of operational and 
information sharing activities required to ensure optimum mission 
success by both agencies. The new DHS organization, which resulted from 
Secretary Chertoff's Second Stage Review, has provided DHS leadership 
with enhanced oversight that ensures that the two agencies focus 
effectively on their respective core missions of border interdiction 
and investigation, while mutually supporting each other where the 
missions overlap. Through the current organizational arrangements, CBP 
and ICE can focus on their core missions, while working together 
through numerous institutionalized arrangements for cooperation and 
joint planning.

    Mr. Rogers. We are probably going to be called for a series 
of votes, and we will be gone for about an hour, so I am going 
to try to keep my questions short and urge the other members to 
do the same and follow up with written questions that we may 
have, so we can let you go before we leave for this series.
    Ms. Myers, I understand that since the separation of the 
two entities that ICE has been able to clean up its financial 
house and improve significantly their accounting problems that 
were a real problem initially. You stated in your opening 
comments that you all had measured improvements, and you gave a 
couple examples, but can you elaborate on the measurements that 
you are taking, the things that you can point to that 
objectively demonstrate why the system is working the way it is 
structured at present?
    Ms. Myers. Thank you, Chairman Rogers.
    Absolutely, there are a number of things that show how ICE 
is achieving results.
    On the financial front, we are making substantial steps in 
improving our audit status. I was able to name the agency's 
first chief financial officer on my first day, as well as a 
deputy assistant secretary for management.
    We have also greatly improved our investigations in a 
number of areas. For example, on the work site enforcement 
front, in terms of criminal cases against employers, we went 
from a very small number to 123 last year. I expect the number 
of arrests to be even higher in this year.
    In terms of cases involving document and benefit fraud, we 
have multiplied those numbers. Our conviction numbers remain 
very high, and we are seeing a lot of cross-integration. For 
example, we often do investigations into in-bond diversions and 
to see if there is a problem there. We started finding that, 
actually, while we are doing the fraud investigations, we are 
finding a lot of illegal aliens. So having agents that are 
cross-trained to see both sides of the picture has been very 
helpful in more effectively carrying out our core missions.
    It is the same thing in export enforcement. There are 
individuals that are here legally, maybe under some sort of a 
visa status but may be working in an area where they are not 
supposed to have access to licensed technology. This is an area 
where Immigration and Customs blends and where we are able to 
really dedicate our authorities and where our members will be.
    Mr. Rogers. You made reference to feedback that you are 
getting from your folks in the field about the current 
structure and it being favorable. Can you give some examples of 
things that you can point to or feedback that you are getting 
now that didn't exist a year ago or a year and a half ago when 
these criticisms of the current structure really were loudest?
    Ms. Myers. Certainly. I have been listening to comments 
across the board from agents in the field, everything from 
their concerns with the finances to concerns with the kinds of 
cases that they are doing.
    Mr. Rogers. Do you still get comments from folks in the 
field saying we need to go back to be a single entity?
    Ms. Myers. Frankly, I do not really get comments like that. 
I do get comments of frustration of other sorts of things; for 
example, being frustrated about how long it took to go through 
the hiring process. We have had a financial situation in this 
agency, so we had a number of procedures set up to protect us 
in the hiring process. What I was able to do, because of the 
agency's strengthened financial status, is remove one of those 
steps from the waiver board.
    Another thing they complained about, rightfully so, is some 
of them were in hardship locations, being unable to move. What 
I was able to do, given our improved financial status, is make 
it available for agents to be transferred off the border in 
these hardship locations immediately; and that is improving 
morale.
    To be frank, I think integration is better in some 
locations than others. The agency is still on its way, but I 
think our numbers point in a positive trend.
    Mr. Rogers. Ms. Spero, for those folks who are advocating 
that we merge CBP and ICE, what is your initial response in 
plain language as to why that is a bad idea, if you think it is 
a bad idea; and, apparently, from your statement, you do.
    Ms. Spero. I do. I think it is a very interesting 
phenomenon that we are undergoing. In many ways, if you asked 
this question in 2003, the answer might be a little different. 
Because when we first set up the two agencies, really breaking 
up INS into three and moving a portion of it to ICE, there were 
very, very difficult times for our former Customs employees.
    I am a former Customs employee. It was wrenching for people 
who had committed their careers to one agency to say now you 
are doing something else. And I think that is just an 
inevitable part of a huge organizational change, that people 
have a hard time giving up something they know and love and 
learning to accept a new world, which is part of this merger 
and culture change.
    I do believe, though, we can't use a 2003 issue to solve or 
address 2006 issues. I think we have come a long, long way; and 
my personal opinion is that the two organizations are working 
well together and that a merger is not just the disruption, 
which we do believe would be highly disruptive, to me, it would 
be the wrong way to design an organization. It would be an 
enormous, enormous scope of authority for one individual to try 
to manage that huge range and hold everybody accountable.
    I think, working in an organization as a manager for as 
many years as I have, I think there is the right size that one 
manager can handle. I think we are individually--our two 
agencies are at that right size, and I would worry about 
combining them.
    Mr. Rogers. Thank you very much.
    I see my time is up. I recognize the ranking member, my 
friend and colleague from Florida, Mr. Meek, for any questions 
he may have.
    Mr. Meek. Thank you.
    I will go back to page 2 of my opening statement, Mr. 
Chairman: Detention and removal operations were hindered, 
interdiction and investigation capabilities have been weakened, 
and there was a lack of coordination of intelligence activity. 
Those are the three points out of the Inspector General's 
report.
    It takes me back to my first question, for whoever on the 
panel that wishes to answer the question: Understanding the 
response to the Inspector General's report as relates to 
development of a Coordinating Council, who are the 
representatives amongst those members on the Coordinating 
Council? Are there rank and file CBP inspectors or Border 
Patrol agents, ICE investigators, or detention and removal 
officers? Are they included in this Coordinating Council? Do 
they sit on this Council?
    Ms. Spero. Either one can handle, because we both co-chair 
the Council. It is composed deliberately of senior leadership, 
not because there should not be other forums for rank and file, 
but this deals with high-level policy issues. Both Assistant 
Secretary Myers and I work very hard on this Council with just 
a select few of our key operational leaders.
    Mr. Meek. I am more concerned about what happens at 3:00 in 
the morning or 5:00 in the morning on the border. Who can best 
bring to light at the Council level of what kind of 
coordination we actually need to protect our borders? With all 
due respect to the seniors who are there, I am saying we visit 
these sites. We are not actually part of an ICE investigation 
or part of a CBP investigation or what have you.
    Ms. Spero. The purpose of the Council is not for that kind 
of case operational coordination, so it is a different kind of 
structure. It is more of a governance body, if you will, at the 
local level. In the middle of the night or any time, Border 
Patrol agents are in constant contact with ICE agents and vice 
versa in accordance with the protocols that we have set up.
    Mr. Meek. Part of the response to the correspondence that 
we received from the Department is saying that this was to help 
streamline what goes on on the front end, and I am concerned by 
the fact that they are not on it. We can't assure that these 
agreements have been really communicated to the folks 
throughout the Department.
    The chairman asked for some feedback. We are saying that we 
are getting feedback from the field, but it is not being 
identified, unless it is at the Secret or Top Secret level or 
ongoing investigation or saying this is a lot better now that 
we have this council structure in place.
    I am just trying to figure out even among the department 
that works so closely together--and there has been a lot of 
discussion here about memoranda of understanding between two 
entities that are in the same department--how much time is 
being spent on those memoranda of understanding? And if 
everything is going so well, we are still receiving phone 
calls, e-mails and information saying that they are not.
    I mean, I am trying to really get down--and maybe I may get 
more in the next panel, but I am really trying to getting the 
Department to say that, listen, we are getting everything that 
we need to know at our level, and I can assure you, 
Congressmen, that we are and making sure that operations are 
running smoothly.
    I am more concerned--I am not concerned as much--I am not 
concerned about right now as I am 1 or 2 years down the road. 
Because this committee is hot and heavy on the question of 
should we merge or not. What happens when we say okay, well, we 
believe everything that people are telling us and from what you 
understand and we understand and let's move on to the next 
issue.
    I want to hear more about--give me something to run with. 
Because I don't want this panel to go on and the next panel and 
say, Congressman, you are absolutely right. It is not bubbling 
down, not helping us on the front line, and what we are hearing 
from the people that work with us, that there is a problem.
    Mr. Chairman, I want to let you know, to get an active 
Border Patrol or ICE agent here to grab the mike, many of them 
feel they will be making a career decision if they do so. That 
is just a normal kind of situation.
    But if you can give me a little feedback, quickly. I am 
sorry I took so long.
    Ms. Myers. Ranking Member Meek, if I could elaborate a 
little bit. Whenever I hear of a problem or a complaint on 
coordination either with CBP or with the Coast Guard or DEA or 
someplace else, we have our managers look into it. What the 
Council is assigned to do is address if we see systemic 
problems occurring.
    For example, just yesterday, we were talking about some new 
issues down on the border; and it just happened to be that the 
Border Patrol sector unit and the others were all in 
Washington, D.C., so they got together to try to come up with a 
field level plan to address it and presented it to us.
    That is the kind of initiative we are driving down from 
ICE, I believe they are driving down from CBP, is it perfect--
no, we think the trend is up. We think there are improvements 
that are being made.
    Mr. Meek. Madam Secretary, my time has run out, but I 
believe, between when the vote is called--I know my other two 
colleagues will get there in 5 minutes. If we get a chance to 
come back around, or if we don't, I would appreciate if your 
staffs stay around for the second panel. Because it will help 
us if something is said in the second panel that needs to be 
addressed, because we are at a very pivotal time in making some 
decisions on what we are going to do.
    It will be good for the Department to send us something in 
writing to our staff or to us to let us know your position on 
this, because I am pretty sure that they will let us know their 
position on what was stated here in the first panel.
    I appreciate all of you coming. Thank you, Mr. Chairman.
    Mr. Rogers. I thank the gentleman.
    Also, I would note that the second panelists are here, so I 
would be interested in their perspective on what they are 
hearing now when they take their chairs.
    The gentleman from Indiana, Mr. Souder, is recognized for 
any questions he may have.
    Mr. Souder. First, let me say we can never express enough 
our appreciation to the people who work in CBP and ICE, that 
all this is interesting discussion, but they are out there 
every day taking risks and working hard. We appreciate every 
drug bust they make, every person they apprehend, every person 
they discourage from illegally entering the country. That needs 
to be said.
    I also appreciate that, in fact, that we have had increased 
success. Quite frankly, we should have increased success, 
because we spent millions of dollars and hired lots more people 
and are presumably somewhat better organized. What we are 
really debating here is not radical overhaul but how an 
organization is structured and having a management difference 
of opinion of how best to do that.
    Clearly, GAO and others outside don't share your view that 
it is just managerially clear cut here. There is a legitimate 
debate. What you would clearly have is two divisions 
underneath. The question is, you already have the Coast Guard, 
we are trying to figure out TSA, and all these different 
agencies with different brands and is this part of ICE and CBP 
really a separable brand or should it be integrated? Because 
you already have a multi-tasked Coast Guard.
    This would be like separating the Coast Guard into 
divisions: fisheries, operations, rescues, and for narcotics. 
We don't separate them so they can have a unified structure to 
deal with their fungible-type problems.
    Even though these agencies are bigger, I understand they 
are bigger, you would still need the subpart. The question is, 
why do we have to create all these new offices linking 
something that should be like the Coast Guard, which is a 
functional border agency?
    To me, the Shadow Wolf question keeps coming back. Because 
you seem to say that we are so rigid in CBP and ICE that we 
don't have a way to accommodate special cases.
    I am not from Arizona. I am not Native American. I have a 
German background. I believe it is very important to have these 
kind of units. But it is not just that.
    When I was up in Vermont and upstate New York, I asked how 
many agents there spoke French. Because, clearly, a big 
percentage of the people across from Maine, Vermont and parts 
of New York speak French. Do you have any incentives to train 
to speak French? Are there any criteria for CBP that come up in 
that area that you understand the language across from you.
    One guy did speak French all of his life, but he couldn't 
pass the test because the French they speak doesn't meet the 
government standards of how we have this formal French.
    So the question is, would you have, in an area where there 
is a higher risk of historic smuggling operations across from 
Maine, special type things that might blend between ICE and 
Border? Because it is not enough to say, oh, that is 
investigation. No, it is not investigation. When they come 
across the border and there is a package there, they are 
supposed to call up and get a language interpreter if they 
don't know.
    But when people across from you speak French, it makes some 
sense to have a specialized unit. But it is not just that. It 
is across from Buffalo and Detroit are where most of the 
Arabic-speaking people are going to come across. But we don't 
have any kind of idea of special incentives or how to 
accommodate special units that work on those borders that are 
doing both important functions, picket fence and monitoring at 
the crossings and official ports of entry, picket fence in 
between and trying to discourage people from coming in and 
detaining them if they do, and the investigations. It is the 
same function. Some of it goes back and forth.
    Now if you can accommodate some sort of special unit, then 
it makes some sense. But if you are so rigid that everybody has 
to either be this, which is a legacy border patrol person whose 
job is to discourage people from coming through, or an ICE 
person, which is a legacy investigatory function, you are going 
to fail.
    I would like to hear some specific response on the Shadow 
Wolves in particular and what I raised here with other language 
questions where you have preponderance of challenges that are 
unique.
    Ms. Spero. Thank you. I would be glad to start on that 
first question of the Shadow Wolves.
    I certainly agree we need to be flexible. Now 3 years into 
our new agency set-up, I think it is more than time for us to 
take a hard look at anomalies, things that don't necessarily 
fit. And with that in mind, Assistant Secretary Myers and I 
have had a series of conversations about what is the best 
placement for the Shadow Wolves. I have to say we haven't quite 
finished our conversations, but we would be glad to report back 
to you at such time as we have finished the discussion. We are 
keeping an open mind on this.
    Ms. Myers. If I could just add to Commissioner Spero's 
comments, I think the Department fully agrees with you that we 
need to be flexible and think about things in different ways; 
and I do think the Secure Border Initiative and the leadership 
of the Secretary is forcing us to do that, not only think about 
where do we need to be more creative in dealing with CBP but 
with, for example, citizenship and immigration services.
    ICE is partnering with USCIS in a number of ways we never 
did before. We need to. It is a problem if we have illegal gang 
members applying for benefits. We needed to partner up closer. 
I think the Department's leadership is forcing us to be more 
flexible and think about things in more creative way.
    With respect to language, we have added into all of our 
announcements now that foreign language is desirable, to try to 
encourage native speakers of different languages, because we 
believe that would be very useful.
    Mr. Souder. Do you grant that some parts of the country are 
more need than others or are you going to put a French person 
in Montana or down in New Mexico?
    Ms. Myers. Certainly it is needed more in certain parts of 
the country than others, but I think having foreign language 
fluency is ideal for everyone, frankly, in our agency, so we 
are definitely encouraging that.
    Mr. Rogers. The Chair recognizes the gentleman from Texas, 
Mr. McCaul, for any questions he may have.
    Mr. McCaul. Thank you, Mr. Chairman.
    I want to focus specifically, and it may not be the 
integration of CBP and ICE but rather on these border 
enforcement and security task forces. I am from Texas, and I 
have been down to Laredo, and I visited with them, and I am 
trying to recall if these task forces included the local 
sheriffs.
    Ms. Myers. They did.
    Mr. McCaul. This is sort of a pilot program in Laredo at 
this time?
    Ms. Myers. It was a pilot in Laredo when it was called 
Operation Blackjack. Secretary Chertoff saw that pilot, saw the 
success between ICE and CBP, also DEA, ATF and State and 
located--and the intelligence community--and decided to work 
with DOJ to expand it. So we have expanded it into the Tucson 
sector, kind of a brand new one starting up, and we are working 
now on our third. They are intelligence driven, so we look to 
what is the threat in that area. In Laredo, of course, it is 
cross-border violence; in the Tucson area, more alien 
smuggling. Our third location may be something different.
    Mr. McCaul. I used to work at Justice with the Joint 
Terrorism Task Force. Is it similar to that kind of model; is 
that what you are trying to replicate.
    Ms. Myers. It is similar to the JTTF, although--and both 
our agencies have large participation on the JTTF, although 
this is designed to be a little more flexible and intelligence-
driven in the front end in terms of focusing on something as 
specific as an intelligence threat in a particular area. And so 
a BEST is not formed until an intelligence assessment is 
completed, and it is based on that, that a BEST is formed. It 
is not in competition with the JTTF.
    Mr. McCaul. And the HIDTA, the High Intensity Drug 
Trafficking Areas, is it similar to that concept, do you think, 
or not? How would it compare to HIDTAs?
    Ms. Myers. HIDTAs take various shapes and sizes, from my 
experience in different places, so I think in some of the more 
successful HIDTAs, it would certainly model that type of a task 
force, but it would depend on a particular HIDTA you are 
referring to.
    Mr. McCaul. Would you see any utility to developing a high 
intensity border area that would have an enforcement piece to 
it, that incorporates a multiplier effect of Federal, State and 
local law enforcement?
    Ms. Myers. From my personal view, I think that is something 
that we should definitely look at. I think that is what the 
BESTs are designed to try to do. And I think we should think 
about all sorts of creative ways to address these problems.
    Mr. McCaul. We can appropriate 7,000 more Border Patrol, 
but really, the locals can provide a multiplier effect. And we 
have Operation Linebacker, which you are familiar with, which 
is more share-driven; Stonegarden, which is more Border Patrol. 
I met with Carl Rove this morning, and he talked about 
Operation Streamline, and unfortunately, I didn't get to stay 
through the whole presentation. Mr.Baker, you may be in the 
best position to comment on Streamline. His view is that we 
have had great success with this pilot program so far.
    Mr. Baker. We have. It is essentially a zero-tolerance 
approach to people who cross the border. Everyone who crosses 
the border in a section of about 150 miles is prosecuted or 
serves time, 30 or more days in jail. The result of that is 
there has been a great drop in border crossings in that area. 
And remarkably, the actual number of cases that have had to go 
to trial has not gone up substantially so that the commitment 
of resources by the Justice Department has been manageable, and 
we are very, very pleased with the Justice Department's 
participation in that and are looking for ways to expand it. It 
requires cooperation from the U.S. attorney in the area, great 
cooperation from the courts. We had all that in Operation 
Streamline, and I hope we can get it elsewhere.
    Mr. McCaul. Is that in the Del Rio sector, Streamline?
    Mr. Baker. Yes.
    Mr. McCaul. And I guess most of them pled guilty, so you 
didn't have a trial?
    Mr. Baker. Yes.
    Mr. McCaul. In terms of resources with prosecutors and 
judges, they were able to bear on that?
    Mr. Baker. Exactly. I would say the caseload has not, as I 
said, increased, even though we have steadily expanded from 
about 5 miles of the border to more than 150.
    Mr. McCaul. Is there any plan to basically develop that--
expand that all across the southwest border?
    Mr. Baker. We would love to do that. It would require 
careful coordination with the Justice Department, because we 
are really spending lots of their resources, and I think 
coordination with the courts as well because, by and large, 
Federal courts are reluctant to handle masses of what they view 
as small cases. But I think given the success of Streamline, I 
am hopeful that we can get that cooperation.
    Mr. McCaul. Last question. It seems to me that CBP seems to 
favor Stonegarden over Linebacker. Can you articulate, is that 
true, number one? And if so, why?
    Ms. Spero. I am not sure that we do. I would have to look 
into this a little more and get back to you. I think we support 
both. I think they are different, but we are very supportive of 
both. I would be glad to take a look and get you more 
information on that.
    Mr. McCaul. That would be great.
    Thank you, Mr. Chairman.
    Mr. Rogers. I appreciate very much you being here. I hate 
that this vote has been called because I have many more 
questions. I know that my colleagues do, but your input has 
been very valuable to us and helps us in this decision-making 
process.
    I would remind each of you that we leave the record open 
for 10 days, and I know that I will be submitting additional 
questions to each of you, and I would ask that you respond to 
those in writing, not only for me, but for the other members 
who do have additional questions.
    And with that, we will dismiss the first panel, and thank 
you for your attendance in being here. And we will recess for 
one hour and return for our second panel at that time. And with 
that, we are in recess, thank you.
    [Recess.]
    Mr. Rogers. This subcommittee will come back to order. And 
we convene our second panel. And I want to apologize for the 
delay, but thankfully, we are through for the day over there, 
so we won't be bothered again with having to leave.
    Mr. Rogers. I want to call our first witness, who will be 
Mr. T.J. Bonner, who is back before us. And we are proud to 
have you, Mr. Bonner, as president of the National Border 
Patrol Council, and we look forward to your statement.
    And I would remind all of you the same thing, your entire 
statement will be put in the record. If you want to give an 
abbreviated version, that would be great.
    Mr. Bonner.

  STATEMENT OF T.J. BONNER, PRESIDENT, NATIONAL BORDER PATROL 
    COUNCIL, AMERICAN FEDERADION OF              GOVERNMENT 
                      EMPLOYEES (AFLO-CIO)

    Mr. Bonner. Thank you, Chairman Rogers, Ranking Member 
Meek. It is, again, an honor to be in front of this 
subcommittee discussing this important topic.
    The events of 9/11 should have served as a wake-up call to 
America, and to many people it did. It occasioned the creation 
of a brand new department that was supposed to ensure that 
another terrorist attack never happened. Thankfully, to this 
date, it has not, but it doesn't give me warm fuzzy feelings 
when I look around the Department of Homeland Security and see 
the lack of coordination, cooperation and communication. One of 
the glaring examples of this is the artificial distinction 
between interior enforcement and border enforcement that ICE 
and CBP have brought about.
    The framers of the Homeland Security Act got it right; they 
called for the U.S. Customs Service to be a separate agency. 
They called for the division of the enforcement and service 
parts of the Immigration and Naturalization Service. The 
creation of the Bureau of Border Security would have absorbed 
all of the enforcement pieces of the INS, the Border Patrol, 
the inspections, the investigations, detention and removal, and 
agriculture would have remained a separate entity.
    The President, in his reorganization plan of February the 
4th, 2003, changed all that. He created ICE and CBP and 
launched the One Face At the Border initiative. Both of these 
were a mistake, and the only way to fix this mistake is to undo 
this mistake. It can be done administratively. I don't believe 
it requires congressional action, but it has hampered the 
accomplishment of the mission. The mission of the Department of 
Homeland Security, obviously, its most important function is to 
ensure that another terrorist attack never happens.
    And I sat here and listened to the examples of cooperation 
given from the previous panel, and I am not going to tell you 
that good things aren't happening, but they are happening not 
because of the structure but in spite of the structure. We need 
to come up with a structure that ensures that the brave men and 
women who are doing these jobs have every tool at their 
disposal and that the lines of communication are wide open and 
facilitate the accomplishment of the mission. The way it works 
now is, people who have been around for a while know someone 
else who has been around for a while, and they can pick up the 
phone and make things happen. That should not be--we should not 
have to go through this serpentine process to get the mission 
accomplished. It should be very easy to accomplish the mission 
because if we get it wrong even once, the terrorists win.
    So our recommendation is not to simply merge ICE and CBP 
because that would leave you with a structure that is still 
dominated by one agency, and in this case, the Customs Service, 
not to detract from the importance of that mission. It is a 
very important mission, but so is Immigration, and so is 
agriculture.
    Our recommendation is that we go back to the way that the 
framers of the Homeland Security Act envisioned this working, 
with a separate Customs organization, a separate Immigration 
organization and a separate agriculture organization, all with 
seamless chains of command within there, and no artificial 
barriers between investigations and patrol functions and 
inspections functions. This, to us, makes the most sense.
    And one final note, we have been debating this issue for a 
number of years now. We believe it is time to get off the dime 
and take some action. I don't want to be here next year in part 
six of a hearing to study something that could have been easily 
resolved now. And the homeland security of this country demands 
that action be taken swiftly to cure this problem.
    I had the pleasure of being in the Rio Grande Valley last 
week--in fact exactly a week ago--and talking to about 50 of 
the frontline agents. The current system is not working. We 
don't have sufficient funding in ICE. Even though everyone is 
being put into the expedited removal program, some aliens are 
being held at our Border Patrol stations for 4 or 5 days before 
we can get them over into property detention spaces. This is 
simply unacceptable.
    The system is broken. It needs to be fixed, and the time to 
act is now. Thank you for your attention, and I would be happy 
to answer any questions.
    [The statement of Mr. Bonner follows:]

                   Prepared Statement of T.J. Bonner

                              May 11, 2006

    The National Border Patrol council appreciates the opportunity to 
once again present the views and concerns of the 10,00 front-line 
Border Patrol employees that it represents regarding the organizational 
structure of the components within the Department of Homeland Security 
Responsible for Enforcing immigration, customs, and agriculture 
laws.\1\
---------------------------------------------------------------------------
    \1\ The National Border Patrol Council previously offered testimony 
concerning this matter before the Subcommittee on Infrastructure and 
Border Security of the Select Committee on Homeland Security on June 
15, 2004; before the Subcommittee on Management, Integration, and 
Oversight of the Committee on Homeland Security on March 9, 2005; and 
before the Subcommittee on Immigration, Border Security and Claims of 
the Committee on the Judiciary on May 5, 2005.
---------------------------------------------------------------------------
    The Homeland Security Act of 2002 established the Directorate of 
Border and Transportation Security, and transferred thereto all of the 
functions, personnel, asses and liabilities of the Customs Service, the 
Transportation Security Administration, the Federal Protective Service, 
the Federal Law Enforcement Training Center, the Office for Domestic 
Preparedness, certain agricultural inspection functions, and the 
enforcement programs of the Immigration and Naturalization Service. It 
also called to the establishment of a Bureau of Border Security to 
establish the policies for performing all of the immigration 
enforcement functions that were transferred to the Directorate of 
Border and Transportation Security, and to oversee the administration 
of such policies. Significantly, the Homeland Security Act as 
originally enacted did not contemplate merging the immigration and 
customs enforcement functions, but rather maintained a very bright line 
of demarcation between the two.
    On February 4, 2003, the President of the United States Submitted a 
revised Reorganization Plan to the Congress that created two 
enforcement bureaus under the Directorate of Border and Transportation 
Security instead of the single Bureau of Border Security envisioned by 
the Homeland Security Act. Under the new structure, most of the 
enforcement resources of the Immigration and Naturalization Service and 
Customs Service were split along geographic lines and placed into the 
Bureau of Customs and Border Protection if they worked near the borders 
or at a port of entry, and into the Bureau of Immigration and Customs 
Enforcement if they did not. At the time, the Administration launched 
the controversial ``One Face at the Border'' initiative that merged the 
immigration, customs, agriculture inspections functions into a single 
occupation.
    Both of these modifications to the Homeland Security Act were 
serious mistakes, and significantly hampered the ability of the new 
Department to carry out its mission. It should have been clear from the 
outset that tasking two bureaus to enforce the same laws, with 
jurisdiction divided along meaning less geographic lines, would lead to 
massive breakdowns in communication, coordination and cooperation. 
Likewise, it should have been apparent that the requisite levels of 
expertise would suffer greatly if three specialized occupations were 
merged into one. While several independent entities now acknowledge the 
folly of creating two separate enforcement bureaus to enforce the same 
laws,\2\ there is no similar consensus concerning the problems that 
will result from the ``One Face at the Border'' initiative.\3\ This is 
probably due to the fact that there are still a fair number of 
inspectors who retain the specialized skills that they acquired as a 
result of the previous structure. Once sufficient numbers of these 
employees leave the agency, however, the shortcomings of the current 
approach will become all too evident. These three areas of law are each 
very complex and demand specialized training and experience. Providing 
employees with small amounts of generalized training and experience in 
all of these arcane fields will yield a generation of mediocre 
employees who are incapable of the high level of performance that the 
public expects and homeland security demands.
---------------------------------------------------------------------------
    \2\ See Heritage Foundation and Center for Strategic and 
International Studies, HDS 2.0: Rethinking the Department of Homeland 
Security, December 13, 2004 and Department of Homeland Security Office 
of Inspector General, Office of Inspections and Special Reviews, An 
Assessment of the Proposal to Merge Customs and Border Protection with 
Immigration and Customs Enforcement, November 2005.
    \3\ Nonetheless, this issue has been the subject of at least one 
critical study. See Migration Policy Institute, One Face at the Border: 
Behind the Slogan, June 2005.
---------------------------------------------------------------------------
    Far from being akin to a corporate merger, the consolidation of the 
immigration, customs, and agriculture functions into the new Bureau of 
Customs and Border Protection was much more analogous to a hostile 
corporate takeover. The Immigration and Naturalization Service's well-
deserved reputation for ineptitude assured that its role would be 
minimal during the transition and in the day-to-day administration of 
the new bureau. This was unfortunate, as many of the employees working 
at that agency were extremely knowledgeable, dedicated professionals 
who could have helped ensure that the immigration enforcement aspects 
were a high priority in the new Department. Sadly, this did not happen, 
and our Nation is at great risk as a result.
    Simply merging the Bureaus of Customs and Border Protection and 
Immigration and Customs Enforcement will not fix the problems resulting 
from their creation. In fact, it is likely that such a move would 
exacerbate some of the existing problems. The new bureaucracy would in 
all likelihood continue to be dominated by legacy Customs Service 
managers, whose natural predilection will be to continue to emphasize 
customs enforcement at the expense of immigration and agriculture 
enforcement because they are much more familiar with customs laws and 
regulation. In order to undo the harm caused by the Administration's 
Reorganization Plan, it will be necessary to separate immigration and 
customs enforcement in addition to eliminating the meaningless and 
counter-productive geographic distinctions between border and interior 
enforcement. Likewise, the enforcement of agriculture laws should 
revert back to the control of the U.S. Department of Agriculture so 
that specialized experts perform and oversee that function. All of 
these areas of law are important, and in order for each of them to be 
properly emphasized, separate structures need to be re-established.
    There are understandable concerns that three separate law 
enforcement entities would detract from the cooperation and 
coordination that are so essential when employees are working side by 
side. It is important to recognize that the historic competition 
between these legacy agencies was largely due to the funding formula 
that rewarded each agency based upon the number of seizures, 
apprehensions and prosecutions that were independently undertaken (or 
for which credit was claimed) instead of those resulting from 
cooperative ventures. This flaw can be easily remedied by rewarding 
cooperative efforts (where such efforts are feasible and appropriate) 
rather than independent actions.
    The structure of these enforcement branches of the importance of 
their missions, it is essential that this not be treated as an 
intellectual exercise, but rather as an urgent problem that needs to be 
addressed as expeditiously as possible. It is equally important to 
ensure that the proposed solution actually cure the identified 
problems. To this end, the National Border Patrol Council strongly 
recommends that the law enforcement bureaus within the Department of 
Homeland Security be restructured along the lines of the statutes that 
are being enforced. One bureau should be responsible for the 
enforcement of immigration laws, one for customs laws, and another for 
agriculture laws. Within each such bureau, a structure that supports 
the accomplishment of the mission should be created. For example, the 
immigration bureau structure should include a Border Patrol program, an 
inspections program, an investigations program, an intelligence 
program, and a detention and removal program. This would ensure that 
all of the areas of law within the jurisdiction of the Department are 
administered and enforced by specialists who are comprehensively 
trained in a single discipline.
    It must also be recognized that even a perfect organizational 
structure will fail if it is not supported by adequate funding and 
sufficient numbers of dedicated and experienced employees. All of these 
matters are under the direct control or strong influence of Congress. 
In addition to providing the necessary funding, it is important to 
establish a working environment that is conducive to attracting and 
retaining the best and brightest employees. The new ``human resources 
management system'' being implemented throughout the Department will 
have precisely the opposite effect. No one wants to work in an 
organization where their voice is muzzled and they are not treated and 
compensated fairly.
    These goals can be quickly and easily attained through 
administrative action. Further delays are inexcusable, as each day of 
inaction leaves our Nation more vulnerable to additional terrorist 
attacks.

    Mr. Rogers. Thank you, Mr. Bonner.
    The chair now recognizes Arthur Gordon, president of the 
Federal Law Enforcement Officers Association, for your 
statement. Welcome, Mr. Gordon.

                   STATEMENT OF ARTHUR GORDON

    Mr. Gordon. Thank you. Chairman Rogers and Ranking Member 
Meek and other members of the subcommittee, I want to thank you 
for the opportunity to appear before you today to testify on 
the issues facing ICE and CBP.
    I am a full-time Federal agent. I am president of the 
Federal Law Enforcement Officers Association. I am not part of 
ICE or CBP, but I represent 24,000 Federal agents, 3,300 of 
which are FLEOA members from ICE. I have repeatedly heard the 
issues at hand for the past 2 years from membership. I have met 
with Secretary Chertoff. I have met with Assistant Secretary 
Garcia and Undersecretary Hutchinson as well, and we have 
talked about the problems.
    Secretary Chertoff has told me that he feels that he can 
resolve the issues without a merger of ICE and CBP. Let me just 
go over some of the things that we have gotten from our members 
in terms of their complaints. And the complaints all center 
around a disconnect between ICE and CBP. And if at the 
headquarters level there are agreements or MOUs or directives 
coming out, they are not coming down to the field.
    There are current MOUs that were intended to dissolve some 
of the red tape that don't. There is a database called TECS 
which is primarily used by ICE, yet it is manned by CBP. ICE 
and CBP do not know who is putting what into that database. ICE 
makes entries. CBP doesn't, so a lot of times ICE cannot tell 
if CBP is investigating the same target that they are. The 
analogy has been made to the police patrol function and to the 
detective units, and that is kind of similar to what our people 
tell us all the time.
    Prior to the formation of DHS, you had the uniform 
division, and you had the investigators. The uniform division 
at the border would have the initial leads, and the 
investigators in ICE now would follow up on it. There is a 
disconnect between having people in CBP get the information to 
ICE to be followed up on. The flow of information just does not 
seem to be there. We have been assured by the Secretary's 
office and very recently by Julie Myers that that is going to 
be corrected.
    The same situation applies at the airports. ICE offices and 
CBP offices were initially under Customs. They were co-located, 
housed together, and they spoke to each other, and the uniform 
people would make referrals to the investigators. We see this 
as a problem at the airports, ICE and CBP in many cases don't 
even talk to each other.
    One of the suggestions that we have to offer, and our 
people are kind of evenly divided as to whether a full blown 
merger would fix the problem; 90 percent of our agents that 
responded to our survey tell us they want some restructuring, 
restructuring needs to be done to fix the problems. There has 
got to be better coordination and communication between ICE and 
CBP. They have suggested a possible task force approach, one 
that Secretary Myers mentioned is the BEST task force; that is 
a good example of a start. Task forces of ICE and CBP people 
and analysts in other agencies seem to show promise. I have 
seen other task forces. You mentioned HIDTA. You mentioned the 
JTTF. They all bring resources and people together, and they 
exchange information, and they talk. So that is one of the 
suggestions that we would make as a possible alternative to a 
full-blown merger of CBP and ICE, maybe some type of a better 
task force approach. And I know that DHS is looking at this 
right now.
    You have my written testimony. The message I would like to 
give you from our members is simple and clear, they ask that 
you please do something to fix the problem.
    On a positive note, I can tell you that I did speak to 
Julie Myers on a couple of occasions very recently. We are 
going to be meeting in the next couple of weeks. She feels very 
positive that she can help fix a lot of the issues, and she 
wants to work with us, and I think that is a very positive 
sign.
    So I would like to thank you for allowing me to speak on 
behalf of the men and women of Federal Law Enforcement who are 
part of FLEOA. Thank you.
    [The statement of Mr. Gordon follows:]

                    Prepared Statement of Art Gordon

                              May 11, 2006

    Chairman Rogers, Ranking Member Meek, and other members of the 
Subcommittee, I want to thank you for the opportunity to appear before 
you today, to testify about the need to resolve coordination and 
communication issues between two important DHS agencies; Immigration 
and Customs Enforcement, commonly referred to as ICE and Customs and 
Border Protection, commonly referred to as CBP.
    My name is Art Gordon and I am currently the National President of 
the Federal Law Enforcement Officers Association (otherwise known as 
FLEOA). FLEOA is the largest non-partisan professional association, 
exclusively representing Federal law enforcement officers.
    I am here today representing over 24,000 Federal agents from over 
50 different agencies, including 3,300 special agents (criminal 
investigators) who work for Immigration and Customs Enforcement (ICE) 
within the Department of Homeland Security.
    All FLEOA National Officers like me are full-time Federal law 
enforcement officers who conduct FLEOA business on their own time. I am 
currently a full-time Federal agent serving as an Assistant Federal 
Security Director for Law Enforcement for the Transportation Security 
Administration (TSA). I previously spent 29 years as a special agent 
with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) 
before joining TSA in 2004. I am here today on annual leave, 
representing the members of FLEOA.
    In March of 2003, portions of the abolished Immigration and 
Naturalization Service (INS) and the US Customs Service (USCS) were 
combined into two separate agencies within DHS: US Immigration and 
Customs Enforcement (ICE) and US Customs and Border Protection (CBP). 
These are now the two agencies with primary responsibility for 
immigration enforcement within the Department of Homeland Security.
    It appears that the initial split of border and immigration 
responsibilities between ICE and CBP during the formation of the 
Department of Homeland Security was done without any compelling reason, 
and it was determined that CBP would handle ``border enforcement'' and 
ICE would handle ``interior enforcement''.
    Over the past two years, we have received many complaints from our 
members regarding the lack of communication and coordination between 
ICE and CBP.
    I have personally met with DHS Secretary Michael Chertoff, former 
Under Secretary for Border and Transportation Security Asa Hutchinson 
and former Assistant Secretary Michael Garcia from Immigration and 
Customs Enforcement (ICE) on more than one occasion to voice our 
member's concerns on this serious issue.
    Secretary Chertoff has been very receptive to FLEOA and he has 
assured us that he intends to resolve these problems. He has indicated 
to FLEOA that the problems can be resolved without merging ICE and CBP.
    In order for me and the rest of the FLEOA National Executive Board 
to better understand the apparent disconnect between ICE and CBP, FLEOA 
polled our 3,300 ICE special agent members on this issue.
    I would like to share the results of our membership survey with you 
today.
    The following problems have been identified by our members:
        1. The current Memorandums of Understanding (MOUs) that were 
        intended to dissolve the red tape between ICE and CBP have only 
        served to strengthen it. There are still complaints from ICE 
        agents regarding accessing certain database information that is 
        controlled by CBP. CBP currently controls the TECS (Treasury 
        Enforcement Communications System) database which stores 
        information on ICE case/investigative data. However, CBP does 
        not enter information into this database on their investigative 
        targets, so there is no way for ICE agents to tell if CBP has 
        an open investigation on one of their suspects. This results in 
        dual track investigations and duplication of effort, with 
        little or no coordination.
        2. By separating the police/patrol functions from the 
        investigative component, which is the current case with 
        CBP(police/patrol component) and ICE (investigative component) 
        as separate agencies, it appears that DHS is slowly eroding the 
        ability of ICE agents to build quality informant networks and 
        follow-up on investigative leads developed at the border or 
        points of entry.
            The criminal investigators within ICE should be able to 
        rely on timely referrals from the uniform component of CBP, but 
        unfortunately there is a disconnect between the two agencies. 
        It appears that CBP is currently attempting to become self-
        sufficient in the investigative arena, eliminating any need to 
        work with ICE criminal investigators in the future.
        3. The original division of Customs and Immigration Inspectors 
        from their related investigative colleagues (Customs special 
        agents and INS special agents) with the formation of ICE and 
        CBP, may be responsible for building administrative walls, lack 
        of cooperation and lack of information sharing between these 
        two agencies.
        4. The flow of information from CBP(police/patrol component) to 
        ICE (investigative component) for investigative follow-up 
        within DHS is very limited and in some cases non-existent.
        5. ICE and CBP have law enforcement personnel assigned to all 
        major international airports within the US, but in many cases, 
        there is no coordination or communication between the two 
        agencies, because of the separate chain of command, separate 
        management structure and separate priorities, policies and 
        procedures. However, there is significant overlap on the 
        functions they perform.
    Many of our members have employed the police officer/detective 
analogy to illustrate the need to get everyone under one roof. As all 
of you know, in a police department the uniform patrol officer makes 
the initial contact with the suspect or the crime and it is than 
followed up by the investigative component, the detective division. 
Currently with ICE and CBP as separate agencies, our members feel there 
is a major disconnect between the police/patrol component (CBP) and the 
investigative component (ICE).
    It is important to integrate the talent of ICE and CBP law 
enforcement personnel into cohesive investigative teams, while 
maintaining the appropriate chain of command. Criminal investigators 
should report up the chain of command to senior criminal investigators. 
We would not advocate a merger that will result in ICE special agents 
(1811 criminal investigators) reporting to CBP senior officials who do 
not have any investigative experience.

Possible Alternative to Merger:
    A Task Force concept comprised of ICE and CBP personnel in many 
instances could be an alternative to a total merger of ICE and CBP into 
one agency at this juncture. For example, a Smuggling Unit in ICE could 
be comprised of ICE special agents, CBP Inspectors, CBP Patrol Officers 
and intelligence analysts. However, we still run into the same issue of 
two separate chains of command, two separate reporting systems, two 
separate data bases and the question of will ICE or CBP run this task 
force group.
    We believe that the task force concept could be employed by ICE and 
CBP for smuggling investigations, strategic investigations, fraud 
investigations and sex crime investigations. The same concept could 
also be applied at all international airports, where ICE and CBP could 
be co-located and function as a task force, as US Customs previously 
did prior to the formation of the Department of Homeland Security.
    It should be noted that on April 20, 2006, DHS announced the 
formation of a new Border Security Enforcement Task Force (BEST) in 
Laredo, TX and one in Arizona. Additional BEST Task Forces will be 
formed along the Southwest border. DHS also announced that ICE will 
form Document and Benefit Fraud Task Forces in 10 major US cities this 
year.
    FLEOA believes that this is truly a step in the right direction by 
DHS, in resolving these communication and coordination issues.

Recommendations:
    In the event that a merger of ICE and CBP were to take place, we 
recommend that this new entity be restructured as follows:
        1. Services Division--Process immigrants who are attempting to 
        enter the country through legal means. Make referrals to the 
        Investigation Division as appropriate.
        2. Patrol Division--Arrest and administratively process illegal 
        aliens at the US borders and inland.
        3. Investigation Division--Handle all criminal investigative 
        matters. This component would include ICE special agents and 
        CBP senior inspectors (formerly called INS senior inspectors), 
        and intelligence analysts.
        4. Detention and Removal Division--Handle all detention and 
        removal of all illegal or criminal aliens. This would include 
        the removal of criminal aliens from State or Federal prison 
        systems.
    At this juncture, FLEOA believes that a restructuring at a minimum 
within ICE and CBP is necessary, to fix the disconnect between the two 
agencies.
    If it is determined that the only way to resolve these issues is to 
merge ICE and CBP, then FLEOA would support this merger.
    The message from our members is simple and clear. Please fix these 
problems now!
    While the debate on the ICE/CBP merger continues, I call upon DHS 
Secretary Michael Chertoff, Assistant Secretary Julie Myers (ICE) and 
Commissioner Nominee Ralph Basham (CBP) to deal with the issues that I 
have brought forward to this committee today.
    My goal as FLEOA National President is to work with the 
Administration and members of Congress to improve Federal law 
enforcement. That is why I am here today.
    Thank you for allowing me to speak on behalf of the men and women 
of Federal law enforcement, who put their lives on the line every day 
to keep our nation safe.

    Mr. Rogers. I thank you, Mr. Gordon.
    And the chair now recognizes Mr. Seth Stodder, senior 
counsel of the law firm of Akin Gump Strauss Hauer & Feld, LLP.
    Thank you for being with us, and we look forward to your 
statement.

               STATEMENT OF SETH STODDER, ESQUIRE

    Mr. Stodder. Thank you, Mr. Chairman, and Ranking Member 
Meek, and the other distinguished members of the subcommittee.
    Thank you for inviting me to testify here today on the 
important topic of whether the two sister agencies of DHS 
focused on securing our border and enforcing our Immigration 
Customs laws, CBP and ICE, should be consolidated into a single 
border Immigration and Customs enforcement agency within DHS.
    I am currently a lawyer at Akin Gump, but before that, I 
served at DHS as the director of policy and planning at CBP. 
Since leaving government, I have remained active in the 
homeland security policy arena in various forms. And the most 
relevant to this hearing I served on the CSIS Heritage 
Foundation Task Force that drafted the DHS 2.0 report, which 
recommended significant reorganizations of DHS.
    In the Second Stage Review, Secretary Chertoff accepted 
many of the organizational recommendations of the DHS 2.0 
report, but one DHS 2.0 recommendation not adopted by the 
secretary was our proposal that CBP and ICE be merged into a 
single agency devoted to securing our borders and to enforcing 
our Immigration and Customs laws. I continue to stand by the 
recommendation that we made in the DHS 2.0 report.
    In my view, the original decision to dismantle Customs and 
INS and then reconstitute them into CBP and ICE was a mistake. 
For many years, experts have recognized that the fragmentation 
of border security responsibility between INS and Customs was a 
bad idea, and that it had led to waste, duplication, lack of 
coordination on policy, strategy and operations, stovepiping of 
information, turf warfare, overall dysfunction, and other 
parades of horribles.
    The creation of DHS was supposed to fix this problem and 
consolidate border responsibility and accountability; instead, 
though, we took the harder path of breaking up two existing and 
competing agencies with overlapping responsibilities and then 
creating two new ones with different overlapping and competing 
responsibilities. We now have yet again two border agencies, 
and on top of that, we have also now split responsibility for 
Immigration and Customs Enforcement, which wasn't the case 
before.
    On the up side, at least these two agencies are in one 
Cabinet department, DHS, unlike INS and Customs were, and we 
have to give DHS credit; it has worked extremely hard to make 
due with a difficult hand. DHS has been making significant 
strides in better securing our border and enforcing our 
Immigration and Customs laws, and it is muddling through and 
coordinating or babysitting the two competing border agencies 
in Immigration and Customs enforcement agencies, but it didn't 
have to be this hard. And speaking from experience, it was 
hard.
    In fixing the previous horizontal Customs-versus-
Immigration split, we created a new vertical fragmentation, 
separating the patrol and interdiction functions of border, 
Immigration and Customs enforcement from the investigation and 
alien processing functions. So in other words, we decided to 
simultaneously conduct a divorce by breaking up Customs and INS 
as well as conduct a merger by re-combining these pieces of the 
former agencies into CBP and ICE and then integrating them into 
cohesive wholes.
    And this divorce took countless hours of management time of 
DHS, CBP and ICE. And over years of acrimonious what I would 
say divorce negotiations for which agency gets what, splitting 
up budgets, wrenching change, and then on top of that, we also 
merged and created One Face At the Border and merged 
investigations within ICE. And to what end no one is quite 
sure. It is telling that last year's DHS IG report on whether 
CBP and ICE should be merged noted that the rationale of 
splitting of the agencies was difficult to discern. And the 
problems with the split are pretty well documented, don't 
require large-scale rehashing here. I submitted my written 
testimony, and that can be, hopefully, put into the record.
    But the issue that is presented before this committee right 
now is not so much rehashing the mistake of 2003--and I think, 
as Acting Commissioner Spero reflected, if this were 2003, it 
would be an easy call, the agencies should be merged. I think, 
in 2006, it is a harder call, but I still maintain the 
recommendation that we should be merging the agencies.
    And it is interesting, DHS has really not defended the 
decision to split the agencies on merits; it is really focused 
now on the 2006 problem, which is, is it more difficult to put 
it back together? Are we going to be creating, as Deputy 
Assistant Secretary Jackson would say, organizational churn? 
And I would say, in the remaining time that I have here, the 
issue is, yes, there will be organizational churn if you have a 
merger of the agencies, but it will be far less than the 
organizational churn that you had in 2003 in the sense that the 
two biggest issues in 2003 were the divorce of Customs and INS 
which created enormous dysfunction and wasted lots of time. And 
then the second difficult issue of 2003 was the merger, 
creating One Face At the Border within CBP, merging the Office 
of Investigations within ICE. Those tasks are done, and so the 
organizational churn that would be involved in remerging the 
agencies would be far less complicated. It wouldn't be 
uncomplicated. There would certainly be some complication, but 
it would be far less complicated than it was in 2003. And I 
think the upside benefits of merging the agencies, in terms of 
solving some of the organizational and policy and operational 
confusion problems and dysfunctions, would be worth the effort 
because ultimately DHS has better things to think about 
ultimately than babysitting its overlapping border, Immigration 
enforcement agencies. An agency head should be dealing with 
these issues, like the head of the Coast Guard does and other 
agencies; DHS should not be doing that.
    With that, any questions you might have, I would be happy 
to address any questions. Thank you.
    [The statement of Mr. Stodder follows:]

                   Prepared Statement of Seth Stodder

                              May 11, 2006

    Chairman Rogers, Ranking Member Meek, and Members of the 
Subcommittee:
    Thank you for inviting me to testify here today on the important 
topic of whether the two sister agencies of the Department of Homeland 
Security (DHS) focused on securing our borders and enforcing our 
immigration and customs laws--U.S. Customs and Border Protection (CBP) 
and U.S. Immigration and Customs Enforcement (ICE)--should be 
consolidated into a single border, immigration, and customs enforcement 
agency within DHS.
    I am currently a lawyer in private practice at Akin Gump Strauss 
Hauer & Feld LLP in Los Angeles, but prior to that, I served in the 
Department of Homeland Security as the Director of Policy and Planning 
at U.S. Customs and Border Protection, as well as Counselor/Senior 
Policy Advisor to then Commissioner Robert C. Bonner. I served in a 
similar position with Commissioner Bonner at the U.S. Customs Service, 
prior to the creation of DHS and CBP. Since leaving government, I have 
remained active in the homeland security policy arena through work with 
the Center for Strategic and International Studies (CSIS), the George 
Washington University Homeland Security Policy Institute (HSPI), and 
other activity. Of most relevance to this hearing, I served on the 
CSIS-Heritage Foundation Task Force that drafted the ``DHS 2.0'' 
report, recommending a significant reorganization of DHS. In his Second 
Stage Review (2SR), Secretary Chertoff accepted many of the 
organizational recommendations of the ``DHS 2.0'' report. One ``DHS 
2.0'' recommendation not adopted by Secretary, however, was our 
recommendation that CBP and ICE merged into a single agency devoted to 
securing our borders, and enforcing our immigration and customs laws.
    I continue to stand by the recommendation made by the ``DHS 2.0'' 
report. In my view, the split of CBP and ICE was a mistake that, in the 
supposed interests of breaking down the stovepipes and duplications 
that made the relationship between the two pre-DHS border agencies--INS 
and Customs--so dysfunctional, created new ones that did not exist 
before and never needed to exist. We now have--yet again--two border 
agencies, and have--yet again--stovepiped and fragmented the 
interrelated pieces of border, immigration, and customs enforcement 
into two competing and turf protective agencies. While DHS, CBP, and 
ICE have certainly made significant progress in better securing our 
borders and enforcing our immigration and customs laws, I believe the 
current organizational structure interferes with DHS from accomplishing 
all that it could in this area.
    How did we get here? Honestly, I have no idea. Literally since the 
Hoover Administration, experts had produced numerous reports arguing 
that the separation of the twin border functions of immigration and 
customs into two separate agencies--INS and Customs--in two separate 
cabinet departments--Justice and Treasury--had led to needless 
dysfunction, duplication, and turf warfare. The examples of this are 
well worn, but a few are worth repeating--the separate and duplicate 
management structures for the immigration and customs inspectors 
working side-by-side at our ports of entry, the stories of Border 
Patrol Agents and Customs Special Agents drawing guns on each other on 
conflicting and uncoordinated enforcement operations, the separate INS 
and Customs air forces both performing border enforcement functions but 
not coordinating, among other choice tales. Over the years, the 
government had missed various opportunities to fix this problem, coming 
closest in 1973, when the merger of customs and immigration was 
proposed and some Customs Special Agents were split off as part of the 
creation of the Drug Enforcement Administration (DEA).
    With the creation of DHS and the public momentum behind 
strengthening our border security post 9/11, the golden opportunity 
finally arose to make this ``good government'' reform and consolidate 
our border security, immigration, and customs enforcement agencies. At 
the same time, the creation of DHS presented the opportunity to make 
good on a Presidential promise to split the services functions of the 
old INS away from the enforcement side, to create a separate agency 
devoted to citizenship and immigration services.
    Unfortunately, in making this ``good government'' reform, we 
bobbled the ball. Instead of doing the simple thing and simply 
consolidating the U.S. Customs Service with the enforcement side of the 
INS, we embraced complexity and made our lives more difficult. 
Violating the so-called ``KISS'' principle, we decided to consolidate 
border, immigration, and customs issues by fragmenting responsibility 
and accountability for them into not two but now three agencies--CBP, 
ICE, and CIS.
    Fixing the previous ``horizontal'' customs versus immigration 
split, we created a new ``vertical'' fragmentation--separating the 
patrol and interdiction functions of border, immigration, and customs 
enforcement from the investigation and alien processing functions. So, 
in other words, we decided to simultaneously conduct a ``divorce'' by 
breaking up Customs and INS, as well as conduct a merger by re-
combining the shards of these former agencies into CBP and ICE, and 
integrating legacy customs, immigration, and agriculture enforcement 
operations into not one but two agencies.
    For good measure, we also complicated the border intelligence 
functions, international operations, mission support, and integrity 
functions--splitting them haphazardly and painfully between CBP and 
ICE. (Indeed, for a time, even the air and marine interdiction 
operations were split between CBP and ICE, with the legacy Border 
Patrol assets going to CBP and the legacy Customs assets going to ICE, 
with little operational coordination--even though both had overlapping 
border interdiction missions. Thankfully, after more than a year of 
considering this elementary problem, DHS consolidated these functions 
and assets into one of the border agencies, CBP.)
    This ``divorce'' process of splitting up Customs and INS and 
recombining them into CBP and ICE took countless hours of DHS, CBP, and 
ICE management time, over a year of acrimonious ``divorce'' 
negotiations over which agency gets what, complicated processes of 
splitting up budgets, wrenching change as legacy Customs Special Agents 
were forced to adopt legacy INS systems and vice versa, and the 
creation of duplicate mission support bureaucracies. In short, the 
splitting of INS and Customs and their recombination into CBP, ICE, and 
CIS created no end of management headache, and greatly complicated the 
first years of DHS--including the process of merging legacy 
immigration, customs, and agriculture enforcement functions into 
cohesive operational units within what became CBP and ICE.
    And to what end? Still, no one is quite sure. It is telling that 
last year's DHS Inspector General report on whether CBP and ICE should 
be merged noted that the rationale for splitting the border agencies in 
the first place was ``difficult to discern.'' Indeed, just as it would 
be ``difficult to discern'' a rationale for splitting the New York 
Police Department into a ``Patrol Bureau'' and a ``Detectives Bureau'' 
with overlapping and inextricably interdependent responsibilities for 
the same crimes but different management structures and chains of 
command, it is also ``difficult to discern why we would split 
overlapping and inextricably interrelated border, immigration, and 
customs enforcement responsibilities into a ``Border, Immigration, and 
Customs Interdiction, Patrol, and Enforcement Bureau'' and a ``Border, 
Immigration, and Customs Investigations, Detention and Removal, and 
Student Visa Processing Enforcement, Among Other Things, Bureau.''
    The problems with such a split of overlapping border, immigration, 
and customs enforcement responsibilities are well documented and don't 
require large-scale rehashing here. The ``divorce year'' problems of 
2003-2004, discussed previously, are ``water over the dam''--those 
countless hours of DHS management time (and accompanying distractions 
from work on the substantive homeland security mission) figuring out 
how to split up Customs and INS (including their assets, budgets, 
missions, legal jurisdictions, and personnel) and recombine them into 
CBP, ICE, and CIS cannot be retrieved. But the operational and 
practical problems continue. In summary form (again, avoiding rehashing 
well-trod ground), they include:

    1. The fragmentation of inextricably interrelated border, 
immigration, and customs interdiction and patrol functions from border, 
immigration, and customs investigations.1 Just as NYPD detectives 
depend on leads from NYPD patrol cops, many (if not most) border, 
immigration, and customs enforcement investigations start with an 
interdiction, an arrest by a Border Patrol Agent or Inspector, or some 
other similar lead from the frontline. And, conversely, effective 
interdiction efforts depend on the intelligence and targeting 
information drawn from those investigations. This is the ``feedback 
loop'' that, over the decades, has been such a critical feature of 
effective border, immigration, and customs enforcement. This is true, 
even with regard to so-called ``interior'' immigration enforcement--
given that all illegal migrants had a path here that led through a 
border or port of entry and many got here with the help of an alien 
smuggling organization that delivered them across the border. Given 
this, why would one put these inextricably interrelated functions into 
two different agencies, with different operational, budgetary, 
enforcement, and policy priorities, and with only a thin layer of 
Department-level (i.e., not field level) coordination? Last year's 
Inspector General report documents the predictable result of this 
split, with numerous anecdotes of missed handoffs, turf warfare, and a 
general lack of coordination in the field and at headquarters.

    2. The split of border and immigration apprehensions from alien 
detention and removal functions. By most estimates, approximately 90% 
of the aliens detained and removed by the legacy INS Office of 
Detention and Removal Operations are apprehended by the Border Patrol 
and frontline inspectors at the Ports of Entry. Given this, why would 
one put the apprehensions side of border/immigration enforcement in one 
agency with one set of policy, budgetary, and enforcement priorities, 
while putting the detention/removal side of border/immigration 
enforcement in another one with different such priorities, again with 
only a thin layer of Department-level (i.e., not field level) 
coordination? Last year's Inspector General report documents the 
predictable result of this split, in terms of mismatches of resources 
and priorities--the quintessential example being the OTM release issue.

    3. The division of intelligence functions. It goes without saying 
that both border/immigration/customs investigators and border/
immigration/customs patrol and inspections officers need intelligence 
concerning potential border, immigration, and customs violations. And, 
given the ``feedback loop'' discussed previously, it would be ideal for 
that intelligence resource to be common to both the patrol/inspections 
side and the investigations side of border/immigration/customs 
enforcement. Given this, why would one break the intelligence function 
into two pieces and put the fragments into two separate agencies?

    4. The division of international operations. By definition, border, 
immigration, and customs enforcement has an international dimension. On 
the interdiction side, this is demonstrated by the Container Security 
Initiative (CSI), pre-clearance operations in Canada, the CBP 
deployments at Schipol Airport in Amsterdam, and Border Patrol efforts 
with Mexico, among other things. On the investigations side, all border 
smuggling investigations by definition have an international component. 
In the legacy Customs Service, the foreign ``attache'' corps served 
both the interdiction and investigations sides of the house--
coordinating foreign smuggling investigations and negotiating the CSI 
agreements with foreign governments. With the split of CBP and ICE, 
however, the legacy Customs attaches (all of whom were Special Agent 
investigators by background) were transferred to ICE, leaving the CBP 
operators overseas--including the CSI teams operating in 42 ports 
around the world--without effective representation at the U.S. 
Embassies. CBP is now having to rebuild its attache corps, now with 
attaches in Mexico City and Ottawa.

    5. The split effectively destroyed the legacy Customs Internal 
Affairs Office. One unintended by-product of the split was the 
destruction of the legacy Customs Office of Internal Affairs--which, 
when it was re-tooled in the late 1990s, dramatically reduced the 
serious corruption problems that had plagued Customs. This successful 
program was split along with CBP and ICE, and fundamentally was 
destroyed--for little reason.

    These are just an assortment of the areas in which the dismantling 
of INS and Customs and their re-combination into CBP and ICE caused 
predictable problems, waste, and dysfunction. Adding these points to 
the hours of DHS, CBP, and ICE management time wasted managing the 
``divorce'' of the agencies in 2003-2004--rather than focusing on 
substantive homeland security issues--places a heavy burden of proof 
upon those who contend the split was in fact a good idea. Given that 
even the Inspector General found the rationale for the split and all of 
its disruptions to be ``difficult to discern,'' it is hard to see how 
split proponents can justify why they made such a disruptive and 
destructive decision.
    Concluding that the original split of INS and Customs and their 
reconstitution into CBP and ICE was a mistake does not answer the 
question posed by this Committee, however. The reality is that the 
split has happened, and CBP and ICE currently exist. The question now 
becomes whether it is worth the effort to undo the organizational 
mistake made a few years ago.
    The Department of Homeland Security has clearly concluded that it 
is not. Tellingly, DHS does not defend the original decision to split 
Customs and INS and re-combine them into CBP and ICE. Deputy Secretary 
Jackson's letter responding to the Inspector General's report of last 
year does not defend the original decision. Nor did Assistant Secretary 
Baker's testimony of last year. Rather, the apparent DHS rationale for 
not merging CBP and ICE appears to be that it is too late to unbreak 
the eggs and that the omelet has already been made. In Deputy Secretary 
Jackson's words, a merger of CBP and ICE would ``yield a protracted 
period of organizational churn, thus undermining operational 
effectiveness at CBP, ICE, and the Department at large.''
    I can certainly sympathize with Deputy Secretary Jackson's comment. 
I lived through the first period of ``organizational churn'' when DHS 
made the decision to break up Customs and INS and re-combine them into 
CBP and ICE.
    And it may indeed be true that the benefits associated with 
creating a single border, immigration, and enforcement agency might not 
be worth the ``organizational churn'' associated with combining two 
currently existing agencies, CBP and ICE. In some sense, DHS might 
simply have ``bigger fish to fry,'' as it works on strengthening FEMA, 
addresses port security issues, and endeavors to strengthen border and 
immigration enforcement through the Secure Border Initiative, among 
other things. It may be that the window for organizational tinkering 
has closed--even to correct obvious mistakes, such as the CBP-ICE 
split--and it is time to focus on the substance of homeland security 
and strengthening obvious organizational basket-cases like FEMA. In the 
meantime, DHS can muddle through with the dysfunctions of having CBP 
and ICE be separate agencies through coordination mechanisms and a 
stronger policy apparatus. And we must give significant credit to 
Secretary Chertoff, Deputy Secretary Jackson, and to the leaders of ICE 
and CBP for all the great strides they have made.
    Maybe at this point it is better to leave well enough alone, and 
let DHS do its substantive work without the distractions involved with 
further organizational change.
    I don't think so, however. In fact, I think now is exactly the time 
to correct the mistake, merge CBP and ICE, and fulfill the longstanding 
goal of establishing a single border, immigration, and customs 
enforcement agency. The reality is that the longer we wait to correct 
this mistake, the more entrenched the CBP and ICE bureaucracies will 
become, and the more painful it will be to create a single agency. As 
we discussed in the ``DHS 2.0'' report, this is the lesson of the 
Department of Defense. DoD muddled through and bowed to service 
parochialism for almost 40 years from 1947 to Goldwater-Nichols in 
1986, when it finally reorganized the armed forces to make our military 
more effective.
    The lesson of DoD is clear. Fix organizational problems at the 
beginning, or conceivably be doomed to live with them for decades--as 
with each year, the change becomes harder and harder to accomplish and 
the transaction costs rise. The reality is that DHS is still young, and 
the cement within the Department is not yet dry. The War on Terror will 
be with us for decades, and DHS will be with us for far longer. DHS 
needs to be organized for the long term, and not simply in order to 
avoid the costs associated with correcting dysfunctional organizational 
structures--especially if those dysfunctions were self-inflicted.
    Moreover, the ``organizational churn'' associated with merging CBP 
and ICE--while not insignificant, surely--would not nearly rise to the 
level of ``organizational churn'' that accompanied the original 
decision in 2003 to shatter Customs and INS and re-constitute them as 
CBP and ICE. Indeed, much of the ``organizational churn'' in 2003 and 
2004 had to do with the ``divorce'' proceedings associated with the 
dismantling of INS and Customs--the ``who gets what,'' and how to split 
up and re-constitute mission support bureaucracies. A CBP-ICE merger 
would not have any of those complications or traumas. Indeed, a CBP-ICE 
merger would simply add additional direct reports to the head of the 
consolidated border/immigration/customs enforcement agency--as all the 
interrelated operational elements of border, immigration, enforcement 
elements (i.e., investigations, intelligence, patrol, inspections, 
detention/removal, air/marine operations, and international affairs) 
would all be under one roof and under one operational chain of command. 
This ``churn'' would be far more manageable than the miserable 
``churn'' that associated the initial mistaken decision to dismantle 
existing agencies.
    Furthermore, much of the pain associated with the ``merger'' piece 
of creating CBP and ICE--as opposed to the ``divorce'' associated with 
dismantling Customs and INS--primarily arose out of the need to 
integrate legacy customs, immigration, and agriculture functions into 
single operational chains of command. This has now been done. CBP has 
created ``Once Face at the Border,'' as legacy immigration, customs, 
and agriculture inspectors have all be integrated into a single CBP 
inspectional force. ICE has integrated legacy customs and immigration 
Special Agents into a single Office of Investigations. Many other 
integrations have been accomplished by the ICE and CBP leadership. In 
merging CBP and ICE, this integration of legacy functions would not 
need to be done again. Instead, the integrated Office of Investigations 
would simply co-exist with the integrated Office of Field Operations in 
a unified border, immigration, and customs enforcement agency, under a 
single chain of command to the agency head.
    In addition, bringing CBP and ICE together under one agency head 
would simplify the Departmental task--as DHS leaders would no longer 
need to waste their time ``coordinating'' the obviously interrelated 
operational functions of border, immigration, and customs enforcement. 
An operational agency head would do this, assisted by a firm chain of 
command down to the field, and that operational agency head would be 
held accountable for failure by the President and the Secretary. DHS 
would no longer need to mediate disputes between CBP and ICE on mission 
support or budget issues. An agency head would deal with these issues 
for the unitary border, immigration, and customs enforcement agency--
and the President and the Secretary would hold him or her accountable 
for failure. The DHS leadership has far better things to do than baby-
sit the two often warring border, immigration, and customs enforcement 
agencies.
    In short, the merger of CBP and ICE would bring significant 
benefits, and achieve a long-sought reform--creating a single border, 
immigration, and customs enforcement agency. And the costs in 
``organizational churn'' identified by DHS are greatly overstated and, 
in any event, will be inevitable whenever CBP and ICE are ultimately 
merged. In short, this is a good government reform and there is no time 
like the present.
    Thank you again, Mr. Chairman, Ranking Member Meek, and members of 
the Subcommittee for holding this hearing and inviting me to 
participate. I look forward to answering any questions you might have.

    Mr. Rogers. And I thank you.
    I would like to start with you on my questions. You heard--
I think you were present for the first panel, weren't you?
    Mr. Stodder. Yes.
    Mr. Rogers. When you heard Ms. Meyers and Ms. Spero talk 
about the fact that they seem to have worked through their 
difficulties, and while they are still encountering some 
organizational struggles, they felt--my impression is they felt 
like they have gotten through the rest of it, and that it would 
be far more damaging for them to try to go through this 
organizational churn--a phrase that Secretary Jackson has used. 
Why do you disagree with their logic? I tried to follow you and 
your statement, and I really don't. Why is that logic flawed?
    Mr. Stodder. Well, I think there are two issues there. I 
think the issue of, are things getting better between CBP and 
ICE? And I think the answer to that is probably, A, it is too 
soon to tell in terms of the coordination mechanisms that have 
been put in place over the last year at the DHS level, and then 
somewhat at the field level. And maybe it is too soon to tell, 
but I guess my sense of that is, it is always going to be a 
second best solution to have DHS at the departmental level from 
Washington trying to coordinate two agencies that have 
overlapping jurisdictions, have significant interrelationships, 
inextricable interrelationships between the patrol functions 
and the interdiction functions and the investigative functions, 
between the detention and removal functions and the patrol 
functions, et cetera, let alone the international issues which 
are even more complicated and still haven't really been 
resolved ultimately. I think it is far more preferable to have 
that be taken down a notch and further into the operational 
agency. And ultimately the better coordination mechanisms have 
to be done at the field, with a strong chain of command in the 
field. So that is on the positive side in terms of why I still 
think a merger is the best course.
    On the issue of organizational churn, certainly that would 
be a cost, and that is something that--that issue is why I 
think, in 2006, it is a tougher call in terms of what the right 
course is at this point versus 2003. But I think, even so, I 
think the organizational churn is something that can be dealt 
with. It is not as bad as its organizational churn was in 2003 
because are not going to have to divorce agencies, you are not 
going to have to merge competing cultures of Customs, 
Immigration and in CBP's case, agriculture into two particular 
chains of command. You can still have an office of 
investigation, et cetera, within a unified agency, but you 
would have a stronger structure to deal with the conflicts that 
could arise within that agency in the same way that you have an 
agency structure that could deal with conflicts that arise 
within the Coast Guard or within the old Customs Service or the 
old INS.
    Mr. Rogers. If the merger were to take place, in your view, 
at what point in time do you think we would see an easing of 
the churning activity and the organization smoothly running?
    Mr. Stodder. Well, I think that would be dependent on what 
type of a merger you would see in terms of what--I mean, you 
could do things--I mean, one of the issues that you would see 
is that there are different field structures for the Office of 
Investigations, detention removal, Border Patrol and the Office 
of Field Operations, and the question is, would you want to 
merge those field structures completely and co-locate them? I 
think that would be more difficult certainly. But I think there 
would be ways of going about the merger that would not be as 
difficult.
    And the other thing is that you would realize some synergy 
in the mission support area because certainly a lot of the 
fight in the 2003-2004 period was on how to split apart, to the 
extent that you wanted to split apart, some of the mission 
support areas in terms of who does what, personnel. And we 
tried to muddle our way through things like shared services and 
tri-border, tri-agency agreements with CIS and other things. 
But ultimately, if you had a single agency that actually had an 
agency head that could be held accountable for failure in all 
those areas, I think you would have a more effective border, 
immigrations, Customs enforcement.
    Mr. Rogers. Thinking about that statement, you heard 
earlier Ms. Sp ero say that she felt like we had finally right-
sized CBP and ICE as far as an organizational structure. So I 
take it, from what you just said, you disagree.
    Mr. Stodder. I disagree with that. CBP is about 44,000 
people right now, I think ICE is about 18 or 20,000. You would 
have a significant agency in the 60,000 range. But I think 
ultimately the issue is not size, the issue is function, and 
the issue is, how do you forge the interrelationships of 
border, Customs and Immigration enforcement together. And so 
the question of whether it is a 60,000 person or 65,000 person 
agency versus 18,000 or 42,000, that is not the issue. I think 
the issue is strong leadership, strong chains of command to 
forge interrelationships.
    Mr. Rogers. I thank you. My time has expired.
    The Chair now recognizes the ranking member, Mr. Meek, for 
any questions me might have.
    Mr. Meek. Thank you very much, gentlemen, for being a part 
of the second panel. And I apologize for the long vote, but 
that is above our pay grade.
    Well, this is quite interesting because I am hearing a 
number of things. I am hearing that it would be good if we 
could merge the department. I am hearing that maybe a merge is 
not the best thing. And I am hearing even mixed reviews from 
the men and women in the field that are not sure, but they want 
something to happen more than what is happening now.
    I would assume if it came down to Border Protection and 
investigation and streamlining the whole process, that being 
under one roof versus several roofs would be more efficient and 
would work better.
    Mr. Gordon, if you could talk a little bit about the 
airport experience and also maybe talk about the different 
areas where the men and women in uniform or out of uniform, 
those investigators, have said where they are having some real 
issues as it relates to the efficiency of the agency, because 
that is what this really is boiling down to. When I asked a 
question of Assistant Secretary Myers about how this 
coordinating council, how is it really working, is it--do we 
have any frontline input on what actually happens on the 
ground? And that answer was, well, we have the folks that are 
in position that can make the decisions to make sure that those 
issues are addressed. And I think that that is where the rubber 
meets the road in this whole debate. The department is trying 
to quench the Inspector General's report, quench the thirst of 
the Inspector General's report of those three areas--and I 
don't know I need to read them again--that they found were 
major issues that weakened our border security. So if you could 
give me some insight on some of the frontline folks, what they 
are saying, some of the--you identified some things that were a 
problem or still is a problem, identify what happens every day 
because we don't have this merger, and where we get confused in 
translation here.
    Mr. Gordon. Basically, prior to the formation of DHS, you 
had Customs agents and inspectors at the airport. The 
inspectors were the uniform people, and when they came across a 
crime or some information or something that needed to be 
investigated, it was referred to the Office of Investigations 
special agents.
    What I am told now is you have CBP at the airports and you 
have ICE at the airports, and they are, in many cases, not co-
located anymore. They have separate chains of command, separate 
priorities. They have separate structures. So, in many cases, 
they don't speak to each other, and that is a significant 
problem. Now we are being told, I was told earlier today, that 
is being addressed at the highest levels to force CBP to make 
all referrals to ICE, but there are MOUs out there--for 
instance, as I understand, there is a MOU that Border 
Protection has from DOJ days where it makes referrals to DEA. 
Well, Border Patrol is part of CBP. They are part of DHS. They 
should be making referrals to ICE, which is the investigative 
arm of DHS.
    Mr. Meek. Mr. Gordon, did you raise that with Secretary 
Chertoff when you--was that one of the issues you raised when 
you met with him?
    Mr. Gordon. That was one of the issues I raised. In fact, a 
member of his staff was here today and told me that he is 
coming out in writing as we speak to resolve that issue from 
the headquarters level. The issue becomes--I don't know that it 
is going to get down to the field, and that is what they have 
to do, is get this down to the field level. The agent, the 
uniform people and the investigators have to start working 
together. They have to start talking. They have to start 
communicating, and that is our main concern.
    Mr. Meek. Well, do you have a copy of any correspondence 
that you sent to the Secretary outlining these concerns?
    Mr. Gordon. Not with me, but I do, I can send them.
    Mr. Meek. Our record will be open. And if we could, Mr. 
Chairman, have unanimous consent to enter that letter into the 
record.
    And Mr. Bonner, I just want to--you mentioned something 
about it may not be good to merge these two agencies, but maybe 
there could be some tweaking to be able to make--to reach our 
objective of border security and communications at the same 
time.
    Mr. Bonner. Actually, what I was suggesting is you blow up 
the two existing agencies, ICE and CBP, and you revert back to 
the original intent of the Homeland Security Act, that you 
create a separate agency that is in charge of Customs, a 
separate one for Immigrations Enforcement, a separate one for 
agriculture. All three of these areas are extremely complex, 
and it is impractical and unrealistic to think that a single 
employee can become expert in all of those areas. Plus your 
leadership is going to--it is only natural that one of those 
functions is going to emerge at the top, and in this case, it 
was the Customs Service because INS was so mismanaged, it was 
natural that the larger Customs agency, which was much better 
funded and much more highly regarded, would emerge as the 
victor in this power struggle, and they did. And the emphasis 
is primarily on Customs matters, which is not the sole focus of 
these two agencies. The focus needs to be on Immigration, 
Customs and agriculture.
    And so what I am suggesting is a reorganization, not a 
merger of the two existing ones, but rather a reorganization so 
that we have more clear lines of authority based upon the 
statutes that these employees are enforcing.
    Mr. Meek. So are you advocating three agencies?
    Mr. Bonner. Yes, I am, which was the intent of the Homeland 
Security Act. I went back and read it, and I was kind of 
surprised that Congress--I am not surprised that Congress got 
it right; don't misinterpret me. I was surprised that that was 
the structure that was called for because all of the debate had 
been swirling around, well, is it ICE, is it CBP, should we 
merge them? And then when I went back and looked at the 
statute, it was very clear that it was laid out in that manner. 
And it was an afterthought that they came up with ICE and CBP. 
And it made no sense at that time to divide it along geographic 
lines as if there is somehow a distinction between border 
enforcement and interior enforcement; there is clearly not. And 
the coordination and cooperation has suffered greatly as a 
result of this structure that we have now. And what we have 
seen is an evolution. Border Protection is now developing its 
own anti-smuggling capabilities, they are not calling them 
criminal investigators, but they are handling more and more of 
these cases through disrupt units and units that they call 
other things because the system isn't working. When you have 
two separate agencies and you have to jump through all these 
bureaucratic hoops, it makes it impossible to get things done, 
so people figure out a way to work around the system.
    Mr. Meek. Mr. Chairman, I just want to ask your indulgence 
for a few more questions here.
    You mentioned something also that it may not--DHS, the 
Department of Homeland Security, has this ability to 
restructure or make it one agency or make it three agencies. 
They have the statutory authority to do that now without us 
doing anything?
    Mr. Bonner. It is my understanding that the President 
retains the authority to offer another reorganization plan to 
the Congress of the United States, and I believe that it lays 
on the desk of Congress for 60 days before it would become 
effective, but, yes, I believe he still retains that authority 
under the Homeland Security Act.
    Mr. Meek. Okay. If I can, Mr. Stodder, I just want to--you 
mentioned something I thought that was very unique, and then I 
am going to yield to the chairman.
    You mentioned that it won't be as painful--
    Mr. Stodder. Right.
    Mr. Meek. To merge these agencies together so that they can 
communicate.
    Mr. Stodder. Right.
    Mr. Meek. You wrote, and it was a part of the 2.0 report 
that--actually, this is your second time before this committee. 
Hopefully you won't have a third and fourth experience. We 
won't continue to talk through this, because as the Nation 
debates this issue of border security, A, we have to have the 
right personnel in the field playing in the right positions to 
be able to be successful, and I know I am using this metaphor, 
but I hear a lot of meetings and organizing, and we are talking 
to John and John is talking to us, and then we have to meet 
again about what John said; I mean, a lot of that is going on. 
Meanwhile, back at the, ranch, are we investigating these cases 
and prosecuting these cases in the way that they should be 
prosecuted? And are we protecting our borders, what we should 
have been doing from the beginning versus the inside baseball? 
I hear the reluctance from the first panel. We don't need to do 
that. As a matter of fact, one of the gentlemen--I cannot 
remember his name right now, it escapes me--but he says, his 
words were that we needed to stay the course regardless of the 
fact that we have these problems and these issues have been 
brought about--Mr. Baker said we need to stay the course. I 
want you to talk a little bit about staying the course on what 
we have right now and the way you see this thing coming to a 
head eventually as it relates to prosecutions, as it relates to 
the efficiency of the Department, and then I will yield back to 
the chairman. There is only two of us here today.
    Mr. Stodder. Okay. What Assistant Secretary Baker said or 
has said about staying the course, I mean, that is a compelling 
argument in the sense of, at some point, to continue with the 
sports analogy here, at some point, it may be wise to blow the 
whistle and say, stop any further organizational tinkering and 
move on with substance and get the job done. My view on that 
is, we are not there yet. I mean, we have to be thinking about 
the Department of Homeland Security for the long haul. The war 
on terror is going to go on for a long, long time, and even 
after al Qaeda is completely destroyed, we will have a need for 
a Department of Homeland Security.
    And I think that--so in that sense, I mean, we are 3 years 
into the Department, it is still young, it is still--the cement 
is not yet dry. And I think that part of the reason why CBP and 
ICE are muddling through, and I think are still effective to 
some degree--I mean, they are still effective because of the 
personal relationships that are still out there in the field 
among people who served in the Customs Service or served in INS 
together, some of the field--some of the directors for field 
operations for CBP on the inspection side or some of the SACs 
on the Office of Investigations or some of the Border Patrol, 
they know each other from the days within their legacy 
agencies, and so I think that some of the things are still 
moving because of that. But I think, as time goes on, those 
people will retire, and I think that the CBP and ICE 
bureaucracies will become more entrenched, and I think it will 
be more difficult to merge the agencies.
    So my sense is, while I sympathize with Stewart Baker's 
views on staying the course, because of the concern about 
organizational churn, as Deputy Secretary Jackson has so 
eloquently said, I do think that if you are going to merge the 
agencies and you are going to create a single agency to enforce 
Border Security, Immigration and Customs, all of those 
interrelated functions, now is the time to do it. I don't know 
if that answers your question, Ranking Member Meek.
    Mr. Meek. It does. I know what you are saying, that is it 
is important that we stay the course in the overall global 
issue of dealing with this, but now is the best time since we 
have an open book on how we protect our border, that is what I 
hear you saying.
    Mr. Stodder. Right. I mean, I think it is important to stay 
the course. It is a factor to consider. But I think the 
countervailing factors of making our border, Immigration, 
Customs Enforcement more effective and more efficient 
ultimately, I think are countervailing factors right now. And I 
think if you ask me 10 years from now, maybe not, but right 
now, the cement is sufficiently still wet that we could 
actually do a merger and limit the amount of organizational 
churn that would hinder our effectiveness during that merger 
period.
    Mr. Meek. I thank you. I yield back.
    Mr. Rogers. I thank the gentleman.
    I would like to ask you, Mr. Gordon, you stated in your 
opening statement that you believe that a merger is not the 
answer. And you talked about the flow of information, and you 
felt like some of the things that are taking place now, and it 
could be done short of merger, would remedy the flow of 
information problems that currently exist. Is that an accurate 
characterization of your view?
    Mr. Gordon. My view is that our people in our survey, the 
Federal agents out there are kind of evenly divided on whether 
the merger is the appropriate answer. I think they are afraid 
of the organizational churn, the turmoil again of going through 
what happened 3 years ago when the agencies were torn apart and 
then put back together. So I think it is kind of a fear of the 
unknown.
    Mr. Rogers. So is it accurate to say, then, that your 
position today then is not that you are advocating merger?
    Mr. Gordon. I would say that is accurate at this time, yes, 
sir.
    Mr. Rogers. You made reference to the task forces that have 
been developed as useful. And you think the BEST task force, 
which was made reference to in our earlier panel, I think you 
cited it in your opening statement; do you believe those are 
going to be an effective means of remedying some of the 
communication shortfalls?
    Mr. Gordon. Yes, I do, because my experience with task 
forces is they have proven to be a very effective means of 
coordination of communication.
    Mr. Rogers. Mr. Bonner, I want to make sure I understand. 
My understanding of your statement is you also are not here as 
an advocate of merger. In fact, in your written testimony, your 
quote was, ``simply merging the bureaus of CBP and ICE would 
not fix the problems resulting from their creation.'' And you 
went on to say, ``In fact, it is likely that such a move would 
exacerbate some of the existing problems.'' So I think that is 
a pretty fair assessment to say that you are not a fan of 
merger.
    Mr. Bonner. I am not a fan of merger but a huge fan of 
reorganization to correct some of the problems.
    And I would also like to go back to Assistant Secretary 
Baker's stay-the-course remark. That only works if you are on 
track. If you are heading towards a cliff, the wisest thing to 
do is throw the breaks on and turn around.
    Mr. Rogers. I want to visit your suggestion about creating 
three separate bureaus of Immigration, Customs and agriculture, 
and ask you how, in your view, would that eliminate some of the 
bureaucracy that we are suffering under and streamline 
activities organizationally?
    Mr. Bonner. What we are dealing with here is a set of three 
very complex sets of laws. If you stack the laws and the 
regulations and all of the implementing policies and court 
decisions on top of each other, they would probably reach the 
ceiling in this room. And so I am not advocating that we--that 
you are going to achieve a lot of streamlined efficiency, what 
I am saying is, you are going to be able to do the job more 
efficiently. And job one is protecting America from terrorist 
attacks, and job two for these agencies is doing their former 
functions, whether that function was ensuring that only people 
who have a right to come into the country come into the country 
or to keep counterfeit goods out of the country or to keep 
produce that that is tainted out of the country. So I don't 
think you can look at it from a standpoint of trying to achieve 
economies of scale by merging everything together. I mean, that 
would suggest that you just throw every government agency into 
one huge government agency.
    Mr. Rogers. So, in summary--I want to get back to the 
threshold question for this third--and I am convinced it is 
going to be our final meeting on this issue--the threshold 
question is whether or not we should merge CBP and ICE. The 
first three panelists said, no. Two of the three of you are 
saying merger is not the answer. Is, basically, that an 
accurate assessment of what has happened here today?
    With that, I will be quiet and yield to the ranking member 
if he has any final questions before we adjourn this panel.
    Mr. Meek. Well, I just mainly--I don't have a question, I 
just have mainly a comment, Mr. Chairman.
    I think it is important, gentlemen--obviously, there are 
two or three members that are very passionate about this issue. 
It is frustrating when we feel that we are doing the right 
thing and then we hear that we are not doing the right thing as 
it relates to policy. I don't read a lot coming out of Heritage 
Foundation, but I think this makes some sense to be honest with 
you, I am going to be brutally honest with you. I think it does 
make sense.
    I used to be a law enforcement officer, and I know what it 
means when--what the chain of command means and the things that 
go on at the top with the brass. When you start talking about 
merger and you start talking about combining agencies, and then 
folks go into the mode where they are saying, wait a minute, 
hold it, I have a retirement boat in my future somewhere, and a 
merger doesn't necessarily--I don't know where I am going to 
fall in that organizational chart. The only thing different in 
this case from the average merger is the fact that it is 
dealing with border security, and it is dealing with the issue 
that is at the forefront of all Americans' minds of protecting 
us from individuals that will harm us, stopping drug dealers 
from getting drugs into our country, all of these things, so 
this is very, very important.
    I just want to make sure for those folks that are out there 
working shift work within both of the agencies, that they have 
what they need. President Bonner, you know that the stovepipes 
that we talk about, as relates to agriculture and enforcement 
and investigation and a couple of other stovepipes that are out 
there, to be able to allow hopefully individuals to be able to 
carry out their functions better is something that, through the 
mandatory process, that I have embraced some of that, and I 
have embraced a lot of what you are saying about right now. I 
believe right now is the time. And this will be an ongoing 
discussion, and I hope you will continue to work with the 
Chairman and members of this committee on this very issue, but 
I think it is something that we are going to have to deal with 
more sooner than later. And just shelving it and saying that, 
well, we had the discussion, hopefully things will get better, 
that is the reason why, Mr. Gordon, I am very interested in 
seeing your letter to the Secretary to see, using concrete 
again, is the concrete wet or dry? Are folks really willing to 
be flexible for the sake of making sure that we have the best, 
efficient agency as possible?
    I go through Miami International Airport every week, and I 
see Customs and Border Protection officers. I see ICE officers. 
I see detention and removal. I mean, I see these folks that are 
there. And they know I am a Congressman, and they stop me and 
say, I understand that you all are talking about this, and 
these are my issues. And I mean, I would like to help you 
further, but I do want to hopefully have an opportunity to move 
up in the organization without any repercussions. And I think 
that is what makes this job even more difficult.
    Mr. Chairman, hopefully in the discussion that we have 
amongst members, I hope that we will be able to find some sort 
of way that we can continue to carry out what Mr. Gordon said; 
his members are split on this, but they want things to get 
better. That is one thing that they hold a common interest on. 
But what I am concerned about is a major, major foul up, when 
we see--we kind of felt that it needed a little help, and we 
needed to do something, and we didn't act when we should have 
acted, should have responded to it, to the issues, that we 
legislate in haste. And when we legislate in haste, that is a 
true train wreck because things will not come out the way we 
want to come out. I will say the Department of Homeland 
Security, great idea, but it was created in haste. If we had an 
opportunity to really oil it out and have the witness testimony 
and to be able to do the things that we need to do, maybe we 
will have a better functional department, and so now we are 
going through the process and ironing out these issues.
    One of the biggest steps, Mr. Chairman, was the creation of 
this committee to be able to carry out the oversight functions 
and to have members that will spend the time to get educated on 
the issues versus coming in and out of the issue on other 
committees of jurisdiction and trying to be professionals in 
the area of management, integration and oversight.
    So with that, Mr. Chairman, that is the end of my comments. 
And I look forward to working with all of you as we move 
forward.
    Mr. Rogers. I thank the ranking member. I want to thank all 
of you for your valuable time and your testimony. It is very 
helpful to us to hear from professionals like you about these 
important issues and decisions that need to be made.
    Because of the late hour, I am intentionally not asking all 
the questions I have, so I will remind you all that the record 
will be open for 10 days. I know I have got a series of 
additional questions that will be submitted to you. I would ask 
that you respond to those in writing if you could for the 
record.
    And with that, we stand adjourned. Thank you.
    [Whereupon, at 5:45 p.m., the subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


  Questions from Hon. Mike Rogers of Alabama for Assistant Secretary 
 Stewart Baker, Assistant Secretary Julie Myers and Hon. Deborah Spero 
                               Responses

                              May 11, 2006

    1. Please provide an update on the Request for Proposals (RFP) for 
SBInet.
    Response: A critical component of the SBI strategy is the 
Department's plan to launch a program to transform its border control 
technology and infrastructure. This program, named SBInet, will 
integrate multiple state of the art systems and traditional security 
infrastructure into a single comprehensive border security suite for 
the Department.
    Since late January, the DHS team has been focused on the goal of 
awarding a single prime contract to develop and deploy SBInet by 
September 2006. The SBInet request for proposal was issued on April 11, 
2006, and proposals were received on May 30, 2006.
    As anticipated, we had a strong response to the RFP and the 
evaluation process will be a lengthy one. To maintain the September 
2006 award schedule, an intra-agency team of 36 DHS staff members are 
working to complete thorough discussions and a comprehensive 
evaluation.

    2. Congress requested that the Department submit its strategic plan 
for SBI by April 17, 2006 however; this plan has not yet been 
submitted. When can we expect this plan to be submitted?
    Response: DHS continues its work to refine the SBI strategy. The 
strategy will include a multi-year plan that includes: a comprehensive 
mission statement; an explanation of how long-term goals will be 
achieved; schedule; an identification of annual performance goals and 
how they link to long-term goals; an identification of annual 
performance measures used to gauge effectiveness towards goal 
achievement by goal; and an identification of major capital assets 
critical to program success. The strategy will be submitted to Congress 
as part of the requirement for delivery for a SBI strategic plan in 
November 2006.

    3. The Department describes SBI as a mix of technology, 
infrastructure, and personnel solutions to strengthen border security. 
Thus far, DHS has not estimated the number of Border Patrol personnel 
that will be required to secure the border. Would you please discuss 
why the Department does not have an estimate for the number of 
personnel that will be required?
    Response: U.S. Customs and Border Protection, Office of Border 
Patrol (OBP) planners have indicated they need 18,000 to 20,000 Border 
Patrol agents to secure the border. However, this estimate may change 
based on the SBInet Integrator's recommendations, assuming an optimum 
mix of personnel, technology and tactical infrastructure are made 
available. Border Patrol is currently in the process of hiring agents 
to meet the goal of 6,000 new agents by the end of the first quarter of 
fiscal year 2009.

    4. When does the Department plan to consider its future staffing 
and training requirements?
    Response: We have already begun by focusing on succession planning 
and workforce development. These strategies address three main areas: 
recruitment, retaining talent, and learning and development.

Recruitment
    The Department is conducting workforce analyses that include 
strategies to close hiring and competency gaps in mission critical 
occupations across DHS. To assist in the recruitment effort, DHS has 
established a corporate branding initiative resulting in recruiting 
materials such as portfolios, slipsheets, a recruitment video, and CDs 
that may be utilized throughout the Department at a variety of 
recruitment events. A Recruitment Taskforce has been established to 
leverage component-specific recruitment activities throughout the 
Department. Components are making use of recruitment flexibilities such 
as outreach, the student loan repayment program and hiring bonuses.

Retaining Talent
    DHS is fostering a results-oriented workforce through the 
implementation of the new pay and performance management system that 
links individual/team/unit performance to organizational goals and 
results. The DHS Chief Human Capital Office links specific component 
results from the Federal Human Capital Survey to results gained from 
workforce analysis. Components are encouraged to actively develop 
internal strategies to track and improve retention for those segments 
of their workforce where losses are above the normal rate by making use 
of retention flexibilities such as retention bonuses, performance 
awards, telework and alternative work schedules. We will continue to 
develop approaches to retention based on exit interviews, grievance/
complaint trend analysis, and/or focus groups.

Learning and Development
    All Components must foster continuity of leadership and knowledge 
by applying the DHS Leadership Competency Framework and a succession 
planning approach to their workforce planning efforts. Learning and 
development opportunities must be continually funded through 
centralized (Departmental) and Component-sponsored activities. This 
ensures that the executives and those in the leadership pipeline 
strengthen their ability to direct and manage the work of others, 
evaluate and analyze results, and implement process improvement 
techniques. The Leadership Competency Framework provides the necessary 
standards to ensure learning is also aligned with organization goals. 
Components will use the results gained from the workforce planning 
process to identify appropriate attendees for programs such as the 
newly established DHS-wide Senior Executive Service (SES) Candidate 
Development Program, Component-specific Candidate Development Programs, 
the Department of Labor's SES Forum Series, The USDA Graduate School, 
and USDA's Executive Potential Program and Aspiring Leaders Program 
among others.
    Components will continue to share resources through programs such 
as the tri-bureau (ICE, CIS, CBP) Supervisory Leadership Training 
Program; USCG's Midlevel Managers Course, Mentoring, and Executive 
Development Programs; and FEMA's Leadership Development Programs. It 
will be through these efforts that DHS' leadership cadre will better be 
able to effectively manage people, ensure continuity of leadership, and 
sustain a continuous learning environment.

    5. In the new DHS Policy Office, there is an office of 
International Affairs that reports directly to you. However, CBP and 
ICE still maintain their own offices of International Affairs and we 
continue to hear about competition between the agencies for precious 
billets at overseas posts.

         Has Policy considered the possibility of bringing the 
        ICE and CBP Offices of International Affairs under your policy 
        office? If not, why not?
    Response: ICE and CBP maintain their own Offices of International 
Affairs. However, the Component offices rely on OIA for international 
policy guidance.

         How does the Policy office plan to ensure that CBP and 
        ICE coordinate with you about overseas assignments and plans 
        that do not compete for overseas posts?
    Response: In accordance with DHS Management Directive 3400, prior 
to the establishment of a DHS billet at a post abroad, the Office of 
International Affairs (OIA), within the Policy Directorate, reviews the 
position description and justification, and submits a recommendation to 
the Deputy Secretary for approval. It is OIA's responsibility to 
validate and manage the Department's overseas footprint in concert with 
the Department of State's rightsizing initiative, the NSDD-38 process 
and the DHS strategic plan to ensure all of our positions abroad are 
necessary.

    6. One of the Committee's continuing concerns is about ICE's morale 
in the field. I understand that you have been meeting with agents in 
the field and that these meetings are being well received. Can you 
please tell us in more detail about these meetings, including the 
feedback you have received?
    Response: Agency morale is one of the most critical issues related 
to agency success. Improving morale therefore has been one of my 
greatest priorities. Establishing clear goals and providing strong 
leadership are critical components of this effort. Upon my appointment 
as Assistant Secretary for Immigration and Customs Enforcement, I 
mailed a letter, sent a broadcast email and recorded a video message 
targeted to the agency's 15,000 employees setting forth my vision. I 
thought it was very important to inform employees about where I wanted 
the agency to go, what expectations I had for them and how I intended 
to achieve success with their support.
    I also believe it is essential to engage employees in the field. 
Since becoming Assistant Secretary, I have met with over 1,000 
employees in various locations including Laredo, TX; Tucson, AZ; 
Chicago, IL; Tampa, FL; San Diego, CA; and New York City, NY. The 
feedback I have received indicates that the employees have appreciated 
the opportunity to communicate directly with me, to express their 
concerns and ideas as well as to receive added information about my 
vision for the agency. Following these visits, I recorded my ``Notes 
from the Road'' and issued them as regular broadcast emails to ensure 
that ICE employees across the agency recognize that I take their 
comments seriously and that I am committed to a strong line of 
communication with our field operations.
    I want to assure employees that my primary goal is to support them 
and enable them to perform their responsibilities to the best of their 
abilities. Since joining ICE, I have taken many steps to ensure that we 
are addressing ongoing concerns raised by employees. I have issued 
additional broadcast emails that echo my priorities for the agency. 
Finally, I addressed ICE employees in May to talk about our 
accomplishments and to reconfirm my priorities going forward.
    I am pleased to report that employees in the field are responding 
positively to the improving financial picture for the agency as well as 
the greater clarity offered in terms of our priorities. We have a lot 
of work to do, but based on the feedback we have received to date, 
agents realize that we are making great progress.

    7. How does ICE's enforcement of immigration laws in the interior 
relate to the Secure Border Initiative?
    Response: On November 2, 2005, the Department of Homeland Security 
(DHS) announced the Secure Border Initiative (SBI). The border is not 
merely a physical frontier and, effectively securing it requires 
attention to processes that begin far outside U.S. borders, occur at 
the border, and continue to all regions of the United States. SBI 
brings a systems approach to meet this challenge; its mission is to 
integrate and unify the systems, programs and policies needed to secure 
the border and efficiently enforce our customs and immigration laws
    A major component of SBI is ICE's work on immigration enforcement 
inside the United States. The primary objective of the ICE Interior 
Enforcement Strategy is to target the criminal networks, employers and 
aliens that undermine our nation's laws and harm our communities. In 
addition, ICE is increasing its worksite enforcment efforts. A joint 
government and private sector initiative has been designed to increase 
employer compliance through outreach programs that will reduce 
vulnerabilities in the hiring process by partnering with employers to 
share best practices and encourage an environment of self-policing. 
This will allow ICE to focus on known and egregious violators of the 
law.
    DHS has launched ICE-led Border Enforcement Security Task Forces 
(BEST) to combat illicit border activities domestically, to include 
human smuggling. BEST teams are comprised of personnel from a number of 
federal law enforcement agencies (ICE, CBP, ATF, FBI, DEA, U.S. 
Marshals Service), key state and local law enforcement agencies and 
U.S. Attorney's Office and local prosecutors. BEST also incorporates 
personnel from existing intelligence groups--involved in both 
collection and analysis--to help identify and disseminate information 
relating to smuggling organizations. BEST has been launched in Laredo 
and Tucson.

    8. What are the top ten most porous areas of the border? How many 
Border Patrol agents do you believe it will take to gain operational 
control of these areas?
    Response: The four states along the southwest border have the most 
illegal activity. The Border Patrol has divided the southwest border 
into three strategic enforcement corridors: California Corridor; 
Arizona/New Mexico Corridor; and Texas Corridor.
    Operational control is not gained exclusively through additional 
staffing. Instead, operational control is achieved with the right mix 
of technology, infrastructure and staffing, including Border Patrol 
Agents and support personnel. Maintaining control will also require 
sufficient support from other agencies, such as detention and removal 
support from ICE as well as prosecution support from DOJ. In order to 
be responsive to your inquiry, estimates are provided below; however, 
CBP will work with the SBInet integrator (a contract is expected to be 
awarded in the fall) to determine the best solution for each particular 
environment. As a result, these staffing estimates could change in the 
future. It is also essential that other components within the 
government that are involved in prosecuting, investigating, and 
detaining individuals who are arrested by CBP receive the resources 
necessary to meet the increased demand arising from additional Border 
Patrol staffing.
    The California Corridor consists of San Diego and El Centro 
Sectors; it contains approximately 131 miles of border and has twenty-
two percent of the southwest border's total manpower. This corridor 
accounts for eighteen percent of all apprehensions and six percent of 
narcotics seized. To gain operational control in the California 
Corridor, CBP Border Patrol will need approximately 800 additional 
agents, a twenty-five percent increase from current staffing levels. 
However, as noted above, this estimate is subject to change, based upon 
the work of the SBInet integrator.
    The Arizona/New Mexico Corridor consists of Tucson, Yuma, and El 
Paso Sectors. It contains approximately 655 miles of border and has 
thirty-seven percent of the southwest border's total manpower. This 
corridor accounts for fifty-six percent of all apprehensions and fifty-
six percent of narcotics seized. The sectors within this corridor are 
focus sectors and will receive priority resource deployments. To gain 
operational control in the Arizona/New Mexico Corridor, CBP Border 
Patrol will need approximately 1,400 additional agents, a thirty 
percent increase from currents staffing levels (subject to change, as 
noted above).
    The Texas Corridor consists of Marfa, Del Rio, Laredo, and Rio 
Grande Valley Sectors. It contains approximately 1,207 miles of border 
and has forty-one percent of the southwest border's total manpower. 
This corridor accounts for twenty-six percent of all apprehensions and 
thirty-eight percent of narcotics seized. To gain operational control 
in the Texas Corridor, CBP Border Patrol will need approximately 2,600 
additional agents, a forty-three percent increase from current staffing 
levels (subject to change, as noted above).
    Operational control of all corridors will also be dependent on 
additional deployments of technology and infrastructure along with an 
increase in agents.

    9. The Federal Government regularly uses contract security guards 
to provide security at sensitive Federal sites around the country. 
Given the inability to gain operational control of the border and the 
shortage of trained Federal law enforcement, would you consider 
utilizing private contractors to supplement the Border Patrol until we 
have a sufficient number of trained Border Patrol agents?
    Response: As an initial matter, CBP does not agree that operational 
control of the border is not achievable. CBP has taken and continues to 
take aggressive actions to control and protect the border, including 
increasing Federal personnel, using innovative technology, and using 
contractors to perform support activities.
    You have asked whether CBP would consider using private security 
guards to supplement the Border Patrol. CBP cannot legally contract out 
Border Patrol Agent positions because Border Patrol Agents perform 
inherently governmental functions. As explained more fully below, 
current laws restrict those activities that may be performed by 
contractors.
    CBP is required by the Federal Activities Inventory Reform (FAIR) 
Act of 1998 to perform an annual inventory of agency functions to 
identify employee functions that are inherently governmental. See Pub. 
L. No. 105-270 (Oct. 19, 1998). The report must be submitted to the 
Office of Management and Budget annually. The FAIR Act places 
limitations on what Federal agency functions can be performed by 
contractors. Specifically, the FAIR Act prohibits Federal agencies from 
contracting out those functions that are deemed ``inherently 
governmental.''
    The FAIR Act defines an inherently governmental function as one 
``that is so intimately related to the public interest as to require 
performance by Federal Government employees.'' Pub. L. No. 105-270. The 
FAIR Act sets forth criteria for determining what functions are 
considered inherently governmental. A function is inherently 
governmental if it requires the individual performing the function to 
exercise ``discretion in applying Federal Government authority or the 
making of value judgments in making decisions for the Federal 
Government, including judgments relating to monetary transactions and 
entitlements.'' Pub. L. No. 105-270. Some functions considered 
inherently governmental include positions requiring interpretation and 
execution of Federal laws in order to ``determine, protect, and advance 
United States economic, political, territorial, property, or other 
interests by military or diplomatic action, civil or criminal judicial 
proceedings, contract management, or otherwise'' and ``significantly 
affect the life, liberty, or property of private persons.'' Pub. L. No. 
105-270.
    The FAIR Act also provides guidance about those functions not 
considered inherently governmental functions. These functions, 
otherwise known as commercial functions, include information-gathering 
positions where the information is transmitted to Federal employees for 
use in performing inherently governmental functions. See Pub. L. No. 
105-270. Commercial functions also include performance of actions 
deemed ``primarily ministerial and internal in nature.'' Specific 
examples of this second category identified in the FAIR Act include, 
``building security, mail operations, operation of cafeterias, [and] 
housekeeping.'' Pub. L. No. 105-270 (emphasis added).
    In accordance with the FAIR Act, CBP's Office of Finance 
coordinates, analyzes, and compiles the annual, agency-wide inventory 
of positions within CBP to identify those that involve performance of 
inherently governmental functions and those that are of a commercial 
nature. This inventory and associated analysis includes positions 
within the Border Patrol.
    In June 2005, CBP specifically reviewed the FAIR Act 
classifications of CBP law enforcement functions. After reviewing the 
authorities vested in these individuals, CBP concluded that the 
functions performed by Border Patrol Agents, CBP Officers, and Air and 
Marine Officers have been properly classified as ``inherently 
governmental'' and therefore cannot be performed by contractors. It 
remains CBP's position that the position of Border Patrol Agent is 
inherently governmental in that it requires performance of numerous 
activities that fall within the definition of that phrase under the 
FAIR Act.
    Border Patrol Agents have authority delegated from the Secretary of 
the Department of Homeland Security to perform numerous inherently 
governmental law enforcement tasks including interrogating, boarding 
and searching vessels without a permit, patrolling to prevent entry of 
aliens, arresting for violations of any Federal law, carrying firearms, 
using force, and executing and serving orders, warrants, summons and 
subpoenas. Border Patrol Agents interpret laws, exercise discretion, 
and make binding legal decisions that can affect the life, liberty, and 
property of the people they encounter along the border. The authority 
to perform these activities is set forth in the Immigration and 
Nationality Act, 8 U.S.C. Sec. 1357 and 8 C.F.R. Sec. 287.5. These 
activities fall squarely within the FAIR Act definition of inherently 
governmental and simply cannot be performed by security guards or other 
contractors. Although other types of work now performed in the border 
environment (such as building roads and fences, repairing vehicles, 
etc.) may be contracted out, the FAIR Act prohibits CBP from 
contracting out Border Patrol Agent functions.

    10. I recently received the response to a letter I wrote to Chief 
Tom Walters, the Assistant Commissioner for Training and Development at 
CBP, regarding the use of private security guards to supplement the 
work of Border Patrol agents. The response letter raised a number of 
limitations to using private security guards, including liability, 
officer safety, a potential language barrier, and training.

        a. Regarding liability, contractors providing security 
        personnel to the military are required to have liability 
        protection under the Defense Base Act. In addition, contractors 
        could gain SAFETY Act coverage. Would you please discuss why 
        liability concerns would preclude the Border Patrol from 
        utilizing private security guards to supplement the work of 
        Border Patrol agents?

        b. Regarding safety, contractors currently train and deploy 
        personnel to Iraq and Afghanistan on behalf of the military and 
        the Department of State. Blackwater USA provides border patrol 
        and safety training to the Afghan Border Patrol. Private 
        security personnel also guard U.S. embassies in Baghdad and 
        Kabul. Would you please discuss why safety concerns cannot be 
        overcome?

        c. Regarding a language barrier, Blackwater USA was recently 
        asked to hire guards with Japanese speaking skills to protect a 
        strategic site overseas. Unlike Japanese speakers, this country 
        is full of Spanish speakers. Would you please discuss why you 
        believe that a potential language barrier should prevent the 
        Border Patrol from exploring the use of private security 
        guards?

        d. Regarding training, the letter also raised the concern that 
        private security guards might not be adequately trained to be 
        deployed in such a dangerous environment as the border. A 
        statement of work on any contract, however, can set the 
        standards for training, physical fitness, and other 
        requirements. If the Border Patrol would have the ability to 
        specify the training requirements, why would this still be a 
        concern?
    Response: As explained above, CBP is prohibited by statute from 
hiring hire private security guards to perform the work of Border 
Patrol Agents because Border Patrol Agents perform inherently 
governmental functions.
    With regard to sub-questions 10a-10d, we regret that our previous 
response may not have clearly explained the primary threshold 
determination of inherently governmental work. Some of the issues 
identified are legitimate concerns and are taken into account by an 
agency when it performs an OMB Circular A-76 feasibility study. If, 
despite concerns such as safety, training or oversight, a function is 
deemed feasible for competition, then the agency will take steps to 
mitigate those concerns via contractual requirements. In other words, 
when CBP has specific areas of concern, such as language proficiency or 
training, then CBP includes relevant requirements in the competition. 
However, as explained above, CBP first analyzes whether an activity is 
inherently governmental or commercial. If the function is classified as 
inherently governmental, then CBP does not perform a feasibility study.
    Because the position of a Border Patrol Agent is classified as 
inherently governmental, CBP cannot use contract security guards to 
increase the law enforcement capability of the Border Patrol. However, 
CBP can use contract security guards and other contractors to perform 
administrative or support functions currently performed by Border 
Patrol Agents, provided that CBP's abides by the FAIR Act, OMB Circular 
A-76, the Competition in Contracting Act and the Federal Acquisition 
Regulation. In fact, contractors are already performing IT services and 
medical testing services that support the Border Patrol. There are also 
some activities that support the Border Patrol that CBP is analyzing 
and may be made available for competition in the future. Some of these 
activities include facilities repair and maintenance, motor vehicle 
maintenance, and support positions within the areas of program 
management, recruiting, and public relations.
    While it may appear that using contractors to supplement the ranks 
of the agency's Border Patrol Agents is desirable, even where it is 
allowed under the FAIR Act, CBP must carefully analyze whether it is 
reasonable and feasible. OMB Circular A-76 requires that the agency 
perform extensive preliminary planning and identifies the steps to be 
taken in the preliminary planning process as part of the overall 
competitive sourcing process. This process is often referred to as 
conducting a feasibility study or business case study. The feasibility 
studies look expansively at the impact of competing a function. 
Specifically, they are used to evaluate, scope, and group functional 
``business units,'' test market interest in the function, and document 
the business case for whether to proceed with a competition of the 
function. A feasibility study of activities supporting the Border 
Patrol would consider factors such as potential liability, Federal 
employee/contractor employee safety, and contractor oversight. But, 
again, the inherently governmental nature of Border Patrol Agents 
precludes the use of contract security guards for duties that involve 
performing inherently governmental functions.

    11. The President's Budget Request for Fiscal Year 2007 includes 
the addition of 375 operations support personnel for the Border Patrol.

        a. Will CBP please discuss how these additional support 
        personnel will be used?
    Response: The support personnel will be employed in positions such 
as Law Enforcement Communications Assistants, Camera Operators, Vehicle 
Mechanics, Infrastructure Maintenance (fence repair, heavy equipment 
operation, truck drivers, etc.), Intelligence Analytical Support and 
Facilities Maintenance.

        b. If the Border Patrol will be hiring 375 additional support 
        personnel, how will this affect the number of Border Patrol 
        agents deployed along the border? How many more Border Patrol 
        agents will be able to perform the functions they were trained 
        for, rather than performing administrative and other support 
        functions?
    Response: While the hiring of an additional 375 support personnel 
for the Border Patrol will redress a long-standing deficit, it will not 
have a direct effect on the number of Border Patrol Agents deployed to 
the border.
    Although the agent workforce for the Border Patrol has tripled 
since the early 1990s, there have not been significant, matching 
increases in the support personnel that are required to support these 
additional agents. As a result, there has been a deficit in support 
personnel for a number of years. While, ultimately, the hiring of 375 
additional support personnel will help to redress this long-standing 
deficit, in the more immediate term, it is the National Guard 
deployment that will allow agents to return to regular law enforcement 
duties. The new support employees are expected to come on board during 
the National Guard deployment so that, once this deployment concludes, 
Border Patrol Agents will not be required to return to these non-law 
enforcement functions.

        c. Do support personnel require training? If so, what kind of 
        training do they receive? What is the cost to provide this 
        training? How long is the training? Who provides the training?
    Response: Support personnel are selected using standard Federal 
personnel processes wherein the applicants are evaluated to determine 
which candidates are most qualified to perform the duties and 
responsibilities as described in the vacancy announcement. They do not 
attend a basic training curriculum prior to their employment.
    Training for support personnel is usually minimal. Vehicle 
Mechanics, Infrastructure Maintenance Workers, and Intelligence Support 
are hired because of their existing respective skill sets. The majority 
of the training for newly hired support personnel will be on the job 
training. If specialized training (i.e. certifications) is required, it 
is usually for no longer than one week and takes place on site.

    12. How many memorandums of understanding has the Department issued 
governing the relationship and responsibilities between ICE and CBP?
    Response: The answer to your question is ``For Official Use Only, 
Law Enforcement Sensitive.'' Immigration and Customs Enforcement and 
Customs and Border Protection staff are available to provide a briefing 
on the issue in an appropriate venue upon request.

        a. What metrics does CBP utilize to assess the effectiveness of 
        MOUs and determine whether they need to be updated or amended?
    Response: The response to the question depends on the specific MOU. 
s an example from a joint CBP & ICE MOU, CBP's Office of Border Patrol 
(OBP) and ICE's Office of Intelligence (OI) joint MOU has a clause 
which provides for review after six months, one year, two years, and 
then every succeeding two years. Five Sector Chiefs and Five ICE 
Special Agents in Charge constitute a review committee to make 
recommendations to CBP OBP and ICE OI. The review committee has 
determined that the joint MOU has been effective at the field level and 
no major revisions or changes to the Joint MOU are necessary. In 
another example, the CBP Office of Field Operations and ICE OI have 
another MOU that is reviewed twice annually at meetings of appropriate 
field leaders.

    b. How does CBP translate MOUs into practice on the operational 
level in the field?
    Response: The joint MOUs have been beneficial to both CBP and ICE 
in clarifying the roles and responsibilities of each agency. Since that 
time, headquarters and field personnel have worked hard to improve our 
partnership based upon the principles and direction outlined in the 
joint memoranda. As a result, the relationship between the two agencies 
has strengthened, roles and responsibilities are better understood and 
are more appropriately and efficiently executed, and field personnel 
within both agencies have effectively applied the principles set forth 
in each joint MOU in a spirit of cooperation. Cooperative efforts 
throughout the country have contributed to mission success and 
increased the efficiency and effectiveness of our enforcement efforts.

    13. What is the status of that investigative pilot program at CBP 
and does it violate the basic premise of the MOU? What has been the 
Department's response to the pilot program?
    Response: In order to coordinate border enforcement activities, a 
joint working group was established with the U.S. Customs and Border 
Protection (CBP), Office of Field Operations (OFO), and the U.S. 
Immigration and Customs Enforcement (ICE), Office of Investigations 
(OI). The group was established in recognition that it is essential 
that officers from the CBP/ OFO and agents from the ICE/OI communicate 
effectively to harmonize enforcement efforts to protect the United 
States. The CBP/OFO--ICE/OI Working Group meets quarterly to promote 
ongoing dialogue and resolution of issues that impact our agencies. As 
part of this Working Group, on December 8, 2005, the first joint 
memorandum was drafted and issued to the field managers of both 
agencies. The memorandum outlined the guiding principles governing 
ongoing interactions between OFO and OI to assist in coordination and 
clarifying roles and responsibilities. The joint memorandum also made 
reference to the joint CBP/ICE investigative pilot whereby CBP 
Officers/Enforcement (CBPO/E) shadow ICE Special Agents. This joint 
memorandum was not intended to be used as a MOU, but rather to serve as 
a means of communicating the group's work.
    The written agreement between ICE and CBP was not outlined in the 
traditional ``Memorandum of Understanding'' (MOU) format referred to by 
the Subcommittee. Rather the coordination issues between ICE and CBP 
were agreed upon in a joint memorandum titled, ``Guidance on Referral 
Coordination for U.S. Customs and Border Protection and U.S. 
Immigration and Customs Enforcement,'' dated May 10, 2006. This 
agreement between ICE and CBP reaffirms that, with few exceptions, ICE 
is solely responsible for conducting investigations of CBP referrals 
and that CBP is primarily responsible for the operational and 
interdiction activities within the ports of entry. Subsequent to the 
issuance of this agreement, discussions held between ICE Office of 
Investigations (ICE OI) and CBP Office of Field Operations revealed 
that CBP intended to initiate a pilot program that would assess the 
viability of instituting a future program where certain CBP officers 
would have authority to pursue the prosecution of drug smugglers who 
were discovered at ports of entry. This pilot project will be conducted 
with participation from ICE OI agents, and CBP's assessment will be 
limited solely to ports of entry. The Department of Homeland Security 
supports CBP and ICE's efforts in working together to strengthen an 
effective working partnership.

    14. CBP currently controls the TECS (Treasury Enforcement 
Communications System) database which stores information on ICE case 
and investigative data. In FLEOA's (Federal Law Enforcement Officer's 
Association) testimony, they indicate that there are ongoing complaints 
from ICE agents regarding accessing certain database information that 
is controlled by CBP. Specifically, CBP is not entering information 
into TECS on their investigative targets leaving no way for ICE agents 
to be alerted to a CBP lead on a suspect.
         Can you please explain for us why CBP officers are not 
        entering this valuable information into TECS? Are there plans 
        underway for CBP to begin entering this information?
    Response: CBP has policies in place to ensure coordination with ICE 
in a variety of investigative arenas. Through policy directives and 
duty musters, CBP Officers and Agents have been reminded of their 
responsibility to complete all required documentation of examinations 
in a timely manner. Additionally, CBP Officers coordinate with the 
local ICE Duty Agent anytime a potential terrorist or watchlisted 
person is identified in advance of arrival in the United States.
    CBP believes that our Officers and Agents are entering valuable 
information into TECS in a timely manner. Through the use of one-day 
lookouts, secondary enforcement results and reports of suspicious or 
unusual activities encountered by CBP Officers and Agents, CBP-driven 
investigative leads are made available to ICE Special Agents in TECS.
    Circumstances encountered by CBP that require investigative follow-
up are referred directly to the ICE Duty Agent at the local Special 
Agent in Charge (SAC) or Resident Agent in Charge (RAC) office. Such 
circumstances may include, but are not limited to, the death of an 
alien, smuggled contraband, suspected smugglers, outbound seizures 
related to criminal export violations, and cross-border tunnels.
    Finally, local notification thresholds and protocols that consider 
unique operational environments and resources have been developed 
between the Directors of Field Operations (DFOs), Chief Patrol Agents 
(CPAs) for the Border Patrol and ICE Office of Investigations' SACs.

              Questions from the Honorable Bennie Thompson

    1. We understand that in response to the Inspector General's 
recommendations, ICE & CBP developed a Coordinating Council. In the 
weeks leading up to this hearing, there has been a drumbeat of letters 
to my office from agents and officers in the field who feel 
disconnected and know nothing of your coordination efforts.

        a) Who are represented among the members of that council? Are 
        rank-and-file Border Patrol Agents, CBP inspectors, ICE 
        investigators and ICE-DRO officers included?
    Response: In late 2005, CBP and ICE, under Secretary Chertoff's 
direction, created the ICE-CBP Coordination Council. The Council meets 
regularly to coordinate and resolve operational and policy matters and 
to monitor implementation of ICE/CBP Memoranda of Understanding (MOA), 
among other things. The Council reports to the Secretary on outstanding 
issues, resolutions, and disagreements that require further direction 
or de-confliction. Co-chaired by the leaders of both agencies and the 
heads of the main operational divisions of ICE and CBP, Council Members 
include:

------------------------------------------------------------------------
                    CBP                                  ICE
------------------------------------------------------------------------
Commissioner                                Assistant Secretary
------------------------------------------------------------------------
Deputy Commissioner                         Deputy Assistant Secretary
------------------------------------------------------------------------
Assistant Commissioner, Office of Field     Director Office of
 Ops                                         Investigations
------------------------------------------------------------------------
Chief, Office of Border Patrol              Director, Office of
                                             Detention and Removal
------------------------------------------------------------------------
Director, Office of Anti-Terrorism          Senior Policy Advisor
------------------------------------------------------------------------
Director, Office of Policy and Planning
------------------------------------------------------------------------

    While the Coordination Council was designed as a senior management-
level entity, its deliberations and decisions are communicated to rank-
and-file field officers/agents of both agencies through normal chain of 
command and information dissemination programs. One of the Coordination 
Council's main activities this year was issuing a joint CBP/ICE memo, 
signed May 10 by the heads of both agencies, providing Guidance on 
Coordination of Referrals to all frontline officers. Field level 
coordination avenues also have been established through the MOA 
mentioned above.
    We take very seriously any indications of a lack of appropriate 
coordination between CBP and ICE personnel at any level. Upon receiving 
information regarding such problems, we would take immediate steps to 
remediate the issue and ensure it is resolved.

        b) If not, how are CBP & ICE ensuring that the agreements 
        reached on the Council level are effectively communicated at 
        all levels of the Department?
    Response: Although the Coordination Council was designed to 
facilitate collaborative efforts at the leadership level of both 
agencies, ICE and CBP field personnel remain informed about the 
activities and decisions of the Council. For example, in May 2006, the 
ICE Assistant Secretary and CBP Acting Commissioner issued guidance on 
referral coordination between ICE and CBP to CBP Chief Patrol Agents, 
CBP Directors of Field Operations, and ICE Special Agents in Charge, 
which was then disseminated to their field personnel. This memorandum 
addressed the support that ICE and CBP provide to each other in their 
enforcement efforts, including the proper referral of investigative 
leads. ICE and CBP field personnel were encouraged to find every 
feasible opportunity at the local level to promote broader cooperation 
and to jointly resolve at the field level issues that may arise--
especially in the area of currency and monetary instruments, illegal 
drugs, commercial importation and exportation violations, national 
security matters, and gangs. Through such communication, ICE and CBP 
will continue to strengthen the effective working partnership that 
exists between the two agencies and their personnel at all levels.

    2. We are going to have a hearing here next week in this 
Subcommittee on the development of human capital at the Department. 
Within ICE, you have a few different types of agents and officers--each 
with their own unique function and training requirements, right?
    Response: The Office of Investigations employs Special Agents 
(criminal investigators) who use ICE's immigration and customs 
authorities to conduct complex criminal investigations. Programmatic 
areas are very diverse and specialized, requiring extensive technical 
and operational training to achieve full proficiency.
    The Office of Detention and Removal Operations employs Deportation 
Officers who promote public safety and national security by providing 
for the control of all removable aliens and ensuring their departure 
from the United States. Deportation Officers have primary 
responsibility for overseeing the removal process, enforcing removal 
orders and investigating, locating, and arresting fugitive aliens. The 
sensitive and complex nature of immigration law enforcement requires 
comprehensive technical and operational training to achieve full 
proficiency.
    Currently, both the Office of Investigations and the Office of 
Detention and Removal Operations employ Immigration Enforcement Agents 
(IEA). IEAs are responsible for the identification, processing, removal 
and escort of aliens who have been ordered removed from the United 
States. IEAs also oversee the transportation and custody of detained 
aliens.

        a) In DRO, you have two law enforcement officers--the 
        Immigration Enforcement Agent and the Deportation Officer, 
        right?
    Response: Yes, this is correct.

        b) What sort of training do you require for your Deportation 
        Officers?
    Response: The entry-level training that must successfully be 
completed is the ICE Detention & Removal Basic Course (ICED). This 84-
day course is considered "basic immigration law enforcement training" 
as defined in 8 CFR 287.1(g) and is normally provided to Immigration 
Enforcement Agents (IEAs).
    The program includes instruction in Nationality and Immigration 
Law, Statutory Authority, Detention & Removal Operations, Arrest 
Techniques, Non-Deadly Force Techniques, Firearms, Constitutional Law, 
Criminal Law, Conspiracy Law and Physical Conditioning.
    The Deportation Officer Transition Training Program (DOTTP) 
supplies the necessary and critical Deportation Officer training that 
will assist an individual in transitioning into new duties as a 
Deportation Officer. The course includes an extensive presentation of 
4th Amendment Law, Deportable Alien Control System (DACS), Treasury 
Enforcement Communications System (TECS), Post-Order Custody Release 
(POCR) and Alternatives to Detention. Other instruction includes 
Prosecution and Courtroom Procedures, Administrative Stays of Removal, 
Asylum and Refugees, Special Status Aliens, and an in-depth, DRO 
specific, Interviewing for Law Enforcement Officers lecture and lab. 
This course also discusses and demonstrates in depth the daily duties 
of a Deportation Officer, including Docket Control, Case Management, 
Travel Document requests, and alternate orders of removal.

        c) Do they get any kind of immigration training or specialized 
        law enforcement training?
    Response: Yes, this training is considered ``basic immigration law 
enforcement training'' as defined in 8 CFR 287.1(g) and has replaced 
the ``Immigration Officer Basic Training Course'' specified in the 
statute. The courses are very specific to the officers' respective 
positions as Immigration Enforcement Agents and Deportation Officers.

        d) From your perspective, are there any circumstances where you 
        would envision waiving these training requirements for a 
        federal law enforcement officer?
    Response: 8 CFR 287.5 and 287.8 require that Deportation Officers 
and Immigration Enforcement Agents complete basic immigration law 
enforcement training, or training substantially equivalent thereto as 
determined by the Assistant Secretary. In circumstances where there is 
equivalent training, a waiver must be processed.

    3. The updated MOU between ICE and CBP reaffirmed that that ICE is 
the investigative arm for CBP and that CBP is ``primarily responsible 
for the operational activities and interdictions within the ports of 
entry.'' Yet in October 2004, CBP announced a pilot program to develop 
its own investigative capabilities with regard to criminal violations 
of federal customs and drug statutes.

         What is the status of the MOU? Has it been issued yet? 
        If so, would you please provide a copy of that memo to the 
        Subcommittee? If not, please tell the Committee the status of 
        the memo.
    Response: In order to coordinate border enforcement activities, a 
joint working group was established with the U.S. Customs and Border 
Protection (CBP), Office of Field Operations (OFO), and the U.S. 
Immigration and Customs Enforcement (ICE), Office of Investigations 
(OI). The group was established in recognition that it is essential 
that officers from the CBP/OFO and agents from the ICE/OI communicate 
effectively to harmonize enforcement efforts to protect the United 
States. The CBP/OFO--ICE/OI Working Group meets quarterly to promote 
ongoing dialogue and resolution of issues that impact our agencies. As 
part of this Working Group, on December 8, 2005, the first joint 
memorandum was drafted and issued to the field managers of both 
agencies. The memorandum outlined the guiding principles governing 
ongoing interactions between OFO and OI to assist in coordination and 
clarifying roles and responsibilities. The joint memorandum also made 
reference to the joint CBP/ICE investigative pilot whereby CBP 
Officers/Enforcement (CBPO/E) shadow ICE Special Agents. This joint 
memorandum was not intended to be used as a MOU, but rather to serve as 
a means of communicating the group's work.
    The written agreement between ICE and CBP was not outlined in the 
traditional ``Memorandum of Understanding'' (MOU) format referred to by 
the Subcommittee. Rather the coordination issues between ICE and CBP 
were agreed upon in a joint memorandum titled, ``Guidance on Referral 
Coordination for U.S. Customs and Border Protection and U.S. 
Immigration and Customs Enforcement,'' dated May 10, 2006. This 
agreement between ICE and CBP reaffirms that, with few exceptions, ICE 
is solely responsible for conducting investigations of CBP referrals 
and that CBP is primarily responsible for the operational and 
interdiction activities within the ports of entry. Subsequent to the 
issuance of this agreement, discussions held between ICE Office of 
Investigations (ICE OI) and CBP Office of Field Operations revealed 
that CBP intended to initiate a pilot program that would assess the 
viability of instituting a future program where certain CBP officers 
would have authority to pursue the prosecution of drug smugglers who 
were discovered at ports of entry. This pilot project will be conducted 
with participation from ICE OI agents, and CBP's assessment will be 
limited solely to ports of entry. The Department of Homeland Security 
supports CBP and ICE's efforts in working together to strengthen an 
effective working partnership.

         What is the status of that investigative pilot program 
        at CBP and does it violate the basic premise of the MOU? What 
        has been the Department's response to the pilot program?
    Response: As part of the Working Group discussion mentioned in the 
response immediately above, CBP and ICE agreed to a pilot program 
whereby certain CBP Officers/Enforcement (CBPO/E) shadow certain ICE 
Special Agents. The aim of the CBPO/E Pilot Program is to determine the 
impact of committing CBP resources to pursuing limited Title 21 
prosecutions. OFO designated the Miami Field Office (MFO) as the lead 
for coordinating the development of field criteria for the CBPO-E Pilot 
Program.
    As outlined in the memorandum, the ICE Office of Investigations 
supports the current scope of duties for the CBPO/Es, identifying and 
processing criminal prosecutions and administrative cases involving the 
Immigration and Nationality Act. The memorandum also reflects that it 
has been agreed that CBPO/Es will continue their current duties in 
enforcing the provisions of Titles 8 and 18 of the U.S. Code within the 
ports of entry.

    4. At a February 13 Coordinating Council meeting, CBP and ICE 
agreed to issue a memo clarifying the referrals for investigation to 
ICE from CBP. The referral issue is said to be a major source of 
friction between the agencies is the existence of other legacy 
memorandums of understanding with Department of Justice entities that 
result in drug investigations being referred to DEA and FBI.

         What is the status of the MOU? Has it been issued yet? 
        If so, would you please provide a copy of that memo to the 
        Subcommittee? If not, please tell the Committee the status of 
        the memo.
    Response: The document is not an MOU. On May 10, 2006, the CBP 
Acting Commissioner and ICE Assistant Secretary signed a joint memo to 
the field, entitled Guidance on Referral Coordination for U.S. Customs 
and Border Protection and U.S. Immigration and Customs Enforcement, as 
a reminder of existing referral agreements between CBP and ICE. A copy 
is attached.

    5. How does CBP prioritize the cases for referral for 
investigations as relate to terrorism travel, human smuggling and 
trafficking, and drug activities?
    Response: The Border Patrol, for the purpose of facilitating 
investigative efforts concerning criminal(s) and/or criminal 
organization(s), will notify ICE/OI as soon as possible of certain 
interdiction events or investigations. The Sector Chief Patrol Agents 
and Special Agents-in-Charge have developed local notification 
thresholds and protocols that consider their unique operational 
environments. The events that require notifications include: (1) death 
of an alien; (2) the homicide or serious physical injury of agents(s) 
when there is a smuggling nexus; (3) aliens held hostage; (4) seizures 
of cash over $10,000; (5) seizures of narcotics to which the Drug 
Enforcement Administration (DEA) declines to respond; (6) seizures of 
commercial shipments of merchandise; (7) cross-border tunnels; (8) high 
profile cases and interdictions where significant media interest can 
reasonably be expected; (9) all outbound seizures related to criminal 
export violations; (10) interdictions that are discovered to have ties 
to any ICE/OI investigation (TECS hits, etc); and (11) arrests of 
aliens from special interest countries and special interest aliens. 
Border Patrol representatives at the National Targeting Center (NTC) 
will notify the ICE representative at the NTC of any arrest of an alien 
from a special interest country. The ICE representative will be 
responsible for contacting the appropriate ICE duty agent. 
Additionally, the local Border Patrol may also notify the local ICE/OI 
duty agent directly.
    In situations involving drug seizures when the DEA declines 
prosecution, the Border Patrol may contact ICE/OI for further 
investigation; turn the narcotics over to state or local agencies; or, 
in a limited number of localities, present the case directly to the 
AUSA or District Attorney for prosecution. The procedures followed in 
each Sector will depend upon local laws, existing protocols, and 
resources.
    In accordance with established policy, CBP must notify the FBI's 
Joint Terrorism Task Force (JTTF) regarding all aliens from special 
interest countries and special interest aliens apprehended by the 
Border Patrol. The Border Patrol also contacts the National Targeting 
Center (NTC), which notifies the ICE representative at the NTC. These 
procedures have been in place for some time and they are working very 
effectively.
    Arrests for some violations are referred to other Federal agencies 
because of existing MOUs. Both Border Patrol Agents and ICE agents are 
delegated Title 21 (Drugs) authority from the Drug Enforcement 
Administration in accordance with the Memorandum of Understandings with 
the DEA. The ATF delegates Title 18 USC 922 (to arrest aliens in 
possession of firearms) to both Border Patrol and ICE. These 
delegations allow both agencies to present cases for prosecution (on 
behalf of the DEA and ATF) to the USAO. In cases that involve multiple 
violations such as currency, drugs, and alien smuggling, the Border 
Patrol will notify both the DEA and ICE. The Investigators from these 
two agencies will then coordinate the investigation or consult with the 
USAO for the best course of action/prosecution.
    CBP Office of Field Operations does not prioritize referrals to 
ICE. ICE provides each port of entry with a duty agent roster. When the 
CBP officers at a port seize any narcotics or other contraband, 
undeclared currency, or commercial merchandise, the officers will 
notify the ICE duty agent. The ICE duty agent will advise the CBP 
Officers on a decision as to whether ICE will investigate. When CBP 
Officers at any port encounter someone suspected of being connected to 
terrorism, the Officers make three notifications--to the local Joint 
Terrorism Task Force (JTTF), the ICE duty agent and the National 
Targeting Center (NTC). When CBP Officers at a port encounter instances 
of human trafficking, they notify the ICE duty agent. The difference 
between this situation and those described above is that CBP/OFO has a 
class of Enforcement Officers who will take certain kinds of human 
smuggling cases before the U.S. Attorney in order to seek prosecution. 
However, they notify ICE in all cases. ICE will generally pursue the 
bigger human smuggling conspiracy cases.

    6. In the last fiscal year, how many referrals were made by CBP to 
ICE?
    Response: During FY 2005, CBP Office of Field Operations referred 
20,756 cases to ICE. Among them are cases that originated with the 
seizure of drugs, currency and property. OFO refers all such cases to 
ICE. ICE then determines whether it is appropriate to refer a case to a 
third agency.
    The Border Patrol does not use the term ``referral.'' Pursuant to 
standing MOUs, the Border Patrol notifies the appropriate agency or 
agencies in the event of an arrest/seizure/incident. This notification 
is made, orally, to the ICE, DEA, FBI, JTTF, or other Federal, State, 
or local office, as appropriate, depending on the seizure or arrest. 
This notification is noted in the Border Patrol agent's case report, 
which is in text format in the IDENT/ENFORCE system. For Border Patrol, 
ICE only records in the TECS System the number of investigations that 
ICE opens (not the total number of notifications). In complex cases, 
the Border Patrol may notify several agencies that may have enforcement 
responsibilities for a particular case. The participating agencies will 
determine, in conjunction with the U.S. Attorney, who has the 
investigative lead, and the appropriate course of action.
    The Border Patrol does not have an automated standardized 
collection process that permits the tracking of ``referrals'' to ICE or 
other agencies. The Border Patrol does, however, track the total number 
of ``seizure incidents'' (e.g., seizures of property, drugs, cash, 
vehicles, etc.).

        a) How many were made by CBP to DEA?
    Response: While CBP Office of Field Operations does not refer cases 
to DEA, the Border Patrol does, pursuant to a standing MOU. Currently, 
the Border Patrol does not have an automated standardized collection 
process that would permit it to track the number of ``referrals'' to 
DEA. The Border Patrol does, however, track the total number of 
``seizure incidents'' (e.g., seizures of property, drugs, cash, 
vehicles, etc.). In FY 2005, 3,773 seizure incidents were transferred 
over to (TOT) to DEA.

        b) How many were made by CBP to FBI?
    Response: CBP Office of Field Operations does not refer cases to 
the FBI. Cases are first referred to ICE, which then decides whether or 
not to refer the case to FBI.
    Currently, the Border Patrol does not have an automated 
standardized collection process that would permit it to track the 
number of referrals to the FBI. The Border Patrol notifies the local 
FBI/JTTF, as well as the National Targeting Center (NTC), on all 
suspected terrorist or Special Interest Alien (SIA) encounters. The NTC 
notifies the on-duty ICE representative at the NTC. The referral is 
noted in the Border Patrol agent's case report, which is in text 
format, in the IDENT/ENFORCE system.

                                 
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