[Senate Hearing 109-71]
[From the U.S. Government Publishing Office]



                                                         S. Hrg. 109-71
 
  STRENGTHENING ENFORCEMENT AND BORDER SECURITY: THE 9/11 COMMISSION 
                    STAFF REPORT ON TERRORIST TRAVEL

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

                             JOINT HEARING

                               before the

      SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY AND CITIZENSHIP

                                  and

      SUBCOMMITTEE ON TERRORISM, TECHNOLOGY AND HOMELAND SECURITY

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 14, 2005

                               __________

                           Serial No. J-109-6

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
                       David Brog, Staff Director
                     Michael O'Neill, Chief Counsel
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director
                                 ------                                

      Subcommittee on Immigration, Border Security and Citizenship

                      JOHN CORNYN, Texas, Chairman
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
JEFF SESSIONS, Alabama               RUSSELL D. FEINGOLD, Wisconsin
SAM BROWNBACK, Kansas                CHARLES E. SCHUMER, New York
TOM COBURN, Oklahoma                 RICHARD J. DURBIN, Illinois
                    James Ho, Majority Chief Counsel
                   Jim Flug, Democratic Chief Counsel
                                 ------                                

      Subcommittee on Terrorism, Technology and Homeland Security

                       JON KYL, Arizona, Chairman
ORRIN G. HATCH, Utah                 DIANNE FEINSTEIN, California
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JOHN CORNYN, Texas                   JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina    RICHARD J. DURBIN, Illinois
                Stephen Higgins, Majority Chief Counsel
                 Steven Cash, Democratic Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas........     1
    prepared statement...........................................    56
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................     6
Kennedy, Hon. Edward M. a U.S. Senator from the State of 
  Massachusetts..................................................     8
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........     4
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    82

                               WITNESSES

Dezenski, Elaine, Acting Assistant Secretary for Border and 
  Transportation Security Policy and Planning, Department of 
  Homeland Security, Washington, D.C.............................    10
Kephart, Janice L., former Staff Counsel for the 9/11 Commission, 
  and Senior Consultant, Investigative Project on Terrorism, 
  Mount Vernon, Virginia.........................................    27
Meissner, Doris, former Immigration and Naturalization 
  Commissioner, and Senior Fellow, Migration Policy Institute, 
  Washington, D.C................................................    25
Walters, Thomas J., Assistant Commissioner for the Office of 
  Training and Development, Customs and Border Protection, 
  Department of Homeland Security, Washington, D.C...............    11

                         QUESTIONS AND ANSWERS

Responses of Elaine Dezenski to questions submitted by Senators 
  Kyl and Kennedy................................................    40

                       SUBMISSIONS FOR THE RECORD

Benesch, Susan, Refugee Advocate, Amnesty International USA, New 
  York, New York, statement......................................    60
Dezenski, Elaine, Acting Assistant Secretary for Border and 
  Transportation Security Policy and Planning, and Thomas J. 
  Walters, Assistant Commissioner for the Office of Training and 
  Development, Customs and Border Protection, Department of 
  Homeland Security, Washington, D.C., statement.................    69
Kephart, Janice L., former Staff Counsel for the 9/11 Commission, 
  and Senior Consultant, Investigative Project on Terrorism, 
  Mount Vernon, Virginia, statement..............................    78
Meissner, Doris, former Immigration and Naturalization 
  Commissioner, and Senior Fellow, Migration Policy Institute, 
  Washington, D.C., statement....................................    84
Mexican American Legal Defense and Education Fund, Katherine 
  Culliton, Legislative Staff Attorney, Washington, D.C., 
  statement......................................................    92
Visa applications of 9/11 hijackers..............................   105


  STRENGTHENING ENFORCEMENT AND BORDER SECURITY: THE 9/11 COMMISSION 
                    STAFF REPORT ON TERRORIST TRAVEL

                              ----------                              


                         MONDAY, MARCH 14, 2005

                              United States Senate,
         Subcommittee on Immigration, Border Security, and 
    Citizenship, Subcommittee on Terrorism, Technology and 
       Homeland Security, of the Committee on the Judiciary
                                                    Washington, DC.
    The Subcommittees met, pursuant to notice, at 2:30 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn, 
[Chairman of the Subcommittee on Immigration, Border Security 
and Citizenship] presiding.
    Present: Senators Cornyn, Kyl, Kennedy and Feinstein.

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

    Chairman Cornyn. Good afternoon. This Joint Hearing of the 
Senate Subcommittee on Immigration, Border Security and 
Citizenship, and Senator Kyl's Subcommittee on Terrorism, 
Technology and Homeland Security shall come to order.
    First I want to thank Chairman Specter for scheduling this 
hearing, but I also want to particularly thank Senator Kyl, who 
chairs the Terrorism and Homeland Security Subcommittee, for 
allowing us to meet jointly. The Subcommittee that I chair is 
the Immigration and Border Security Subcommittee, and there 
seem to be so many common themes and intersections that we 
thought it would just be more efficient to have these two 
Subcommittees meet together. I look forward to continuing to 
work with Senator Kyl on these issues as we debate immigration 
reform and security enforcement in the months ahead.
    I also want to express my appreciation to Senator Kennedy, 
the Ranking Member of my Subcommittee on Immigration and Border 
Security, and Senator Feinstein, the ranking Subcommittee 
member on the Terrorism Subcommittee, and obviously also all 
the staff that have worked so hard to make this hearing 
possible today.
    Last year I was honored to serve as the Chair of the 
Constitution, Civil Rights and Property Rights Subcommittee and 
work closely with Senator Feingold, the ranking member. 
Although we parted company on some issues, I found that Senator 
Feingold was always a principled, courteous and devoted Ranking 
Member of the Subcommittee and I will certainly miss working 
with him and his staff in that capacity.
    But, I am particularly looking forward to this new 
responsibility on the Immigration and Border Security 
Subcommittee and working with Senator Kennedy, whose devotion 
and commitment to immigration issues is longstanding and well 
known. I think it is especially gratifying to serve on this 
Immigration Subcommittee at this time in our Nation's history.
    President Bush has articulated to the Nation a vision for 
comprehensive reform of our immigration laws, in the interest 
of our Nation, in the interest of our security, in the interest 
of our economy, and in the interest of the rule of law. I am 
sympathetic to the President's vision and I look forward to the 
critical role that this Subcommittee will play in the coming 
Congressional debate.
    But before we debate the need for reforming immigration 
law, we should ask ourselves why it is that we have so 
miserably failed to enforce current law. Is it due to lack of 
resources? Is it due to a lack of will? Is it because our 
current laws are out of sync with economic reality? Or is it 
for other reasons entirely? No doubt, whatever the reasons, our 
current immigration system is badly broken. It breeds 
disrespect for the law and imposes serious risks to our 
National security.
    As an American, I am deeply troubled by our chronic 
inability, even our unwillingness at times to do what is 
necessary to enforce our immigration laws. And, although I am 
proud that we are sometimes called a Nation of immigrants, but 
I am concerned because we are also first and fundamentally a 
Nation of laws.
    As an American I believe our immigration laws can be 
designed to be both compassionate and humane. At the same time 
I believe our immigration laws must be designed to protect U.S. 
sovereignty and further U.S. interests.
    As an American I understand that our immigration policy can 
be reformed to better serve our National security and our 
National economy. At the same time I understand that unless we 
can ensure enforcement of the law, it is futile to discuss 
reforming it.
    Toward that end, today's hearing is just the first in a 
series of hearings on strengthening enforcement, the first in a 
series of hearings to focus attention on the challenges that we 
face when enforcing our immigration laws. I hope that the 
series will serve at least two purposes. First, the hearings 
should help us identify those challenges to enforcing 
immigration laws that we can address, such as additional 
resources and legal tools. Second, the hearings may help us 
consider whether comprehensive immigration reform would be 
helpful to the cause of stronger enforcement of our laws.
    Future hearings will look at interior enforcement and the 
need to strengthen our deportation system, because we need to 
review our immigration system from top to bottom. Today's 
hearing will examine the challenges to enforcement we face at 
the border.
    It will examine the analysis and recommendations from the 
border security staff report of the 9/11 Commission, entitled 
``9/11 and Terrorist Travel.'' The 9/11 Commission and their 
staff performed a tremendous public service by providing a 
comprehensive review of the facts and circumstances surrounding 
the attacks of September the 11th. I hope that those of us in 
Congress will never tire of reviewing the lessons learned from 
the failures that led to that terrible day. As that report 
makes clear, defects in our ability to enforce our laws and to 
secure the border pose a threat not only to the rule of law, 
but to the security of our Nation as well.
    Specifically, the border security staff identified several 
deficiencies in the training of border personnel and several 
defects with regard to our visa policy. The report noted that 
our immigration inspectors, now called CBP officers, received 
little counterterrorism and behavioral science training, no 
cultural training, and rarely received follow-up training. They 
also wrote that ``critical continuing education on document 
fraud was rare.''
    The report also recognized that our visa process allowed 
terrorists to exploit our system and gained extended stays 
within our country. Recognizing this defect, terrorists 
concentrated on ways to exploit legal entry into our country, 
whether by lying on entry forms or using manipulated or 
fraudulent documents. All but two of the nonpilots involved in 
the 9/11 attacks were admitted as tourists and were granted 
automatic six-month stays. This allowed them to maintain a 
legal immigration status through the end of the 9/11 attacks. 
We should examine the process by which length of stay is 
determined to ensure that inspectors grant an appropriate time 
period to those seeking to enter our country.
    And we should make no mistake, this type of exploitation 
continues. Just last week FBI Director Mueller testified that 
he was aware of people going to Brazil, assuming false 
identities and making their way through Mexico to cross the 
U.S. border with their new identities and documents. And recent 
news reports, as recently as today, cite intelligence officials 
who believe that Al Zarqawi has considered plans to enter the 
United States in this very fashion.
    The border security report makes clear all of the 9/11 
attackers entered our country through a legitimate port of 
entry, passing through border security 68 times prior to 
carrying out their deadly attacks. These border encounters are 
the time to detect and arrest those who use document fraud and 
manipulation to enter. Immigration inspectors must receive 
periodic updated training about document manipulation, fraud 
and other illicit methods used to enter our country because 
these inspectors are in the best position to stop those who 
come here to do us harm.
    But we also know that al Qaeda and other terrorists plot 
their attacks and modify their plans over long periods of time. 
Undoubtedly they will attempt to gain entry to the United 
States undetected between ports of entry.
    I recently flew with the border patrol over the Texas-
Mexico border around Laredo, Texas, and I must tell you, from 
what I saw there and reported back to my colleagues, I am 
concerned that our expansive and porous border leaves our 
country vulnerable still today.
    This vulnerability was highlighted by Deputy Homeland 
Security Secretary Admiral James Loy in recent testimony before 
the Intelligence Committee. He said: ``Recent information from 
ongoing investigations, detentions and emerging threat streams, 
strongly suggest that al Qaeda had considered using the 
Southwest border to infiltrate the United States. Several al 
Qaeda leaders believe operatives can pay their way into the 
country through Mexico and also believe that illegal entry is 
more advantageous than legal entry for operational security 
reasons.''
    It is imperative that we find a solution to this exposure. 
Clearly, a part of the ultimate resolution is well-equipped, 
trained and funded border patrol agents and inspectors.
    Our front line border personnel are highly dedicated and 
loyal public servants. They process visitors in a timely 
fashion to avoid legitimate travel and commerce backlogs, while 
simultaneously identifying those who should not be allowed to 
enter into our country. This is a high stress job, particularly 
in the post 9/11 environment.
    Yet we will never have effective enforcement at our borders 
unless we adequately train the people we task with carrying out 
this job, and the thought that inspectors may unwillingly 
facilitate the introduction of terrorists, weapons of mass 
destruction or illegal drugs into this country because they 
have not received the information or training they need is 
simply unacceptable.
    That is why we have to do everything in our power to ensure 
that these front line defenders have all that they need in 
order to get the job done.
    I hope to hear today how the Department of Homeland 
Security has enhanced their training programs to reflect the 
increased importance of our front line inspectors' role in the 
defense of our country, and how the Department of Homeland 
Security considers and grants visas to ensure the system is not 
exploited.
    [The prepared statement of Senator Cornyn appears as a 
submission for the record.]
    With that, let me turn the floor over to Senator Kyl, and 
then to Senator Kennedy and Senator Feinstein for any remarks 
they may have.

  OPENING STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE 
                        STATE OF ARIZONA

    Chairman Kyl. Thank you very much, Senator Cornyn.
    I too want to welcome all of you to this hearing in which 
we will examine the work of the Department of Homeland Security 
and its efforts to ensure that terrorists are not permitted to 
travel to this country posing as legitimate visitors.
    I too recently visited our border in Arizona, and it is 
very clear that our border control continues to face enormous 
challenges in keeping out the people who cross illegally.
    Our hearing today is going to try to focus more on how 
people get documents to come into the country legally, and the 
reasons that we know this was a problem is because of the 9/11 
hijackers, which I will get into in just a moment. But we are 
very interested in the work that the Department of Homeland 
Security is performing in our consulates abroad because this is 
often the first place that our United States representatives 
have to encounter foreign nationals who seek to enter our 
country, and it is there that we begin the process of ensuring 
the integrity of the visa application and issuance process.
    We count on professionals staffing our consular offices to 
extend our welcome to the world, but also to keep a watchful 
eye on travelers who seek to exploit the system in order to do 
us harm or violation to our immigration laws.
    The Enhanced Border Security and Visa Entry Reform Act of 
2002 added safeguards to ensure that visa applicants were 
better screened, first by mandating specialized training for 
the consular officers to recognize terrorists or terrorist 
threats; second, requiring the State Department to 
electronically share information on visa applicants with the 
Department of Homeland Security; and third, by mandating that 
travel documents and passports contain biometric identifiers 
and features whereby we can authenticate the person applying 
for the particular kind of visa, and that these identifiers by 
machine readable and tamper resistant.
    We have expressed grave concern with the way that the 
consular officers in the past screened or even sometimes failed 
to screen would-be travelers to the United States, and with the 
guidance that they receive from the State Department.
    I authored an amendment for inclusion in last year's 
intelligence reform legislation that was prompted by a finding 
of the 9/11 Commission and its recommendation that most foreign 
nationals should be personally interviewed by consular officers 
before they are issued visas. The personal interview is an 
important part of the process of determining whether a foreign 
national may pose a security risk. The amendment that I 
authored last year also required that visa applications be 
completely and accurately filled out by the applicants in order 
to be considered for approval.
    Chairman Cornyn, I am going to insert in the record at this 
point a copy of each of the forms that the 9/11 hijackers 
submitted, which reveal clearly the failure to provide 
information that should have been provided to our consular 
officers, and that should have alerted them to the necessity of 
conducting oral interviews with these applicants.
    Chairman Cornyn. Without objection.
    Chairman Kyl. All 15 of the visa applications filed by the 
9/11 hijackers contained significant inaccuracies or omissions 
that should have prevented them from obtaining visas, and only 
two of the hijackers were personally interviewed by the State 
Department on their applications. The remainder were simply 
approved sight unseen.
    Now, the Department of Homeland Security has been given the 
responsibility for visa policy and oversight of the visa 
issuance process, so we are interested in learning what 
progress has been made in the security of visa operations, and 
in particular, look forward to Acting Secretary Dezenski's 
testimony on this matter.
    A second line of defense against terrorists trying to enter 
our country is located at the ports of entry. The 9/11 
Commission noted that no Government agency has systematically 
analyzed terrorist travel strategies, even though our security 
would have been greatly enhanced by such analysis, and that as 
many as 15 of the 19 hijackers were potentially vulnerable to 
interception by border authorities, but were not picked up 
because of the lack of analysis of characteristic travel 
documents and travel patterns.
    The Commission staff report added that Immigration and 
Naturalization Service inspectors were inadequately trained in 
the essentials of identifying terrorists, that they had 
received no counterterrorism training, were remarkably 
undertrained in conducting primary inspections and in 
recognizing fraudulent documents, and that they were not taught 
the content and value of the numerous databases at their 
disposal, which might have helped them identify members of the 
9/11 terrorist group.
    We know that DHS has made effort to improve the awareness 
and efficiency of the officers who oversee our borders, and I 
expect that Chief Walters will give us details on the training 
of those officers.
    Finally, Chairman Cornyn, I am looking forward to the 
testimony of Janice Kephart, who actually worked on my staff 
for this Subcommittee before she became a member of the 9/11 
Commission staff. So we have a good hearing today, and let me 
just say in advance that because a leadership meeting was 
scheduled over the top of this hearing, I will have to leave at 
just a little bit before 3:30, but will look forward to the 
testimony of all of the people who provide that testimony after 
I m gone.
    Thank you, Mr. Chairman.
    Chairman Cornyn. Thank you, Senator Kyl.
    Senator Feinstein, would you care to make any opening 
remarks?

  STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    Senator Feinstein. I would. Thank you very much, Mr. 
Chairman. I very much appreciate this opportunity and I 
certainly thank the witnesses for being here.
    I want to address my remarks to the catch and release 
program, the Visa Waiver Program and stolen immigration related 
documents, specifically with respect to the Southwest border.
    In 2003 there were 30,147 other than Mexican intrusions. In 
the next year, 2004, which is the latest year for which we have 
figures, there were 44,617. That is a 48 percent increase, 
which indicates that other than Mexicans are seeing the 
Southwest border as a point of vulnerability, going to Mexico 
and stealing into our country through that border.
    In February of 2004, during a Judiciary Immigration 
Subcommittee hearing, Under Secretary for Border and 
Transportation Security, Asa Hutchinson, responded to questions 
by Senator Grassley regarding the catch and release policy for 
other than Mexicans, or as we will say, OTMs, as follows. His 
response, and I quote, ``At present DHS has no specific policy 
regarding OTMs apprehended at the Southern border. Well, OTMs, 
as well as Mexicans, are permitted to withdraw their 
applications for admission and can be returned voluntarily to 
their country of nationality. As a practical matter, this 
option is not readily available to them as it is for Mexicans, 
whose government will accept them back into the Mexican 
territory. Thus, when apprehended, OTMs are routinely placed in 
removal proceedings under Immigration and Nationality Act 240. 
It is not practical to detain all noncriminal OTMs during 
immigration proceedings, and thus most are released.'' End of 
quote.
    Now it is my understanding that a majority of OTMs later 
fail to appear for their immigration proceedings and simply 
disappear into the United States. So you can look back and say 
that the likelihood is, in 2004, some 44,000 people other than 
Mexicans came across the border and just disappeared.
    I have looked at the statistics for each country, and the 
so-called countries of concern, Syria, Iran and Iraq, the 
numbers are up of penetrations through our Southwest border. 
Clearly we are deficient in a mechanism to deal with these. 
Thus, it seems to me if I were a terrorist and I wanted to come 
into the United States, this is the way I would do it.
    The next issue, lost and stolen passports and the Visa 
Waiver Program. I cannot go into great detail, but in the 
Intelligence Committee I have learned a lot about international 
drivers license, Geneva Convention travel documents, stolen 
passports, how they are changed, et cetera. I have sent those 
information bulletins to Mr. Chernoff, and so I have brought 
that to the attention of the Homeland Security Department. I 
did this last year as well.
    I happen to believe that this is a real problem and the 
only true opportunity we have to screen visa waiver travelers 
also is through the US-VISIT program. In many cases, 
particularly if the terrorists would use airplanes as weapons 
against us, this would clearly be too late.
    I want to give you a quote from Former Inspector General 
Clark Kent Irvin. He stated best in his testimony before the 
House Committee on International Relations in June of last year 
when he said, and I quote, ``The fundamental premise of the 
Visa Waiver Program is that millions of persons about whom we 
know little can be exempted from Department of State's ever 
more rigorous visa procedures and permitted to board United 
States bound planes. As we said in our report, the visa is more 
than a mere stamp in a passport. It's the end result of 
rigorous screening the bearer must undergo before travel.'' End 
quote.
    I could not agree more. The Visa Waiver Program involves 28 
countries and 13 million who have come into this country every 
year. The 9/11 report documents the use of the Visa Waiver 
Program by terrorists, and we have a real problem in that 
program. Let me quote from the April--and I have the December 
report--of the OIG on Visa Waiver Program management. Quote: 
``All of the officials we spoke to told us that the Visa Waiver 
Program is not properly organized or managed. When INS 
disbanded it was reassigned to other responsibilities and 
several officials filled in on an interim basis or shared 
responsibility for Visa Waiver Program requirements. Since the 
establishment of DHS responsibility is unclear. One CBP 
official described the Visa Waiver Program as being on 
autopilot in an orphaned status with no designated manager or 
overseer.''
    And then I go on. ``Department of State officials told us, 
Department of Health, DHS needs to identify who will be 
responsible for the programs. Lines of communication since the 
reorganization are unclear.'' And this report on pages 13, 14 
and 15, is a serious indictment of this program which is really 
the soft underbelly of our Nation's immigration system because 
this would allow a terrorist to come into this country from any 
Visa Waiver Program, I think with alacrity.
    In my questions, I will ask questions which I think will 
demonstrate this, but I am most interested to see since these 
reports what actions have been taken to tighten up this 
program. I understand for the biometric passports that the 
Department is going to be coming in for another extension. I 
put a hold on it for last year. I held it up till the very last 
minute of the Senate, and I was assured that it would be done 
for this year. I will do the same thing in this session if it 
does not get done, because I truly believe this is a dominant 
weakness with respect to terror in this country, and year after 
year after year the Department has been requested to get the 
computer programs in shape, and hopefully you have been able to 
achieve that now. In any event, I will find out.
    Thank you very much, Mr. Chairman.
    Chairman Cornyn. Thank you, Senator Feinstein.
    We have been joined now by the Ranking Member of the 
Immigration and Border Security Subcommittee, Senator Kennedy, 
and we would be happy to hear any opening remarks you might 
have, Senator.

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

    Senator Kennedy. Thank you very much, Mr. Chairman, and let 
me congratulate you on chairing these hearings, and say that 
all of us on this side look forward to working with you on a 
lot of very important issues that are of first importance to 
families, to our National security and to the kind of country 
that we are.
    I thank you for calling the hearing and also for having the 
9/11 Commission staff report on terrorist travel, and I commend 
the Commission and staff for their thoughtful analysis of the 
events leading up to 9/11 and for their recommendations for 
reducing our vulnerability to attacks in the future.
    We have made a number of significant improvements since 9/
11, but no one would argue we have adequately repaired the 
broken system of intelligence, border security and immigration. 
Better information sharing and training are essential to enable 
our front line officers and inspectors to detect and intercept 
potential terrorists before they do us harm.
    The Intelligence Reform Act Congress passed last December 
calls for a strategy to combine travel intelligence, operations 
and law enforcement in a joint effort to intercept terrorists 
and identify those who facilitate their travel. It also 
requires improvements in technology and training to assist 
border, consular and immigration officers in this mission, and 
I look forward to hearing from our witnesses about the progress 
being made.
    A survey by the American Federation of Government Employees 
last summer found that a majority of the 500 custom and border 
protection officers say they do not have the tools, training or 
support to stop potential terrorists from entering the country. 
According to the 9/11 Commission staff report, al Qaeda altered 
passports in four ways: by substituting photos, by adding false 
entry/exit stamps, by removing visas and bleaching stamps, and 
counterfeiting passports and substituting pages.
    I am also interested in hearing about ways to improve 
training and expedite access to specialists to obtain useful 
real-time intelligence about the terrorist organizations and 
operations. We also need to respect the civil rights and civil 
liberties. As the 9/11 Commission stated, we advocate a system 
for screening, not categorical profiling. A screening system 
looks for particular identifiable suspects or indicators of 
risk. It does not involve guesswork about who might be 
dangerous.
    Our goal is also to strengthen the security of our borders 
without unduly impeding the legitimate flow of people and 
commerce. More than 30 million foreign nationals enter the 
United States legally each year as tourists, students or 
temporary workers. And over 400 million visitors a year cross 
legally from Canada or Mexico to conduct daily business or 
visit family members. The goal of our border security is to 
keep out those who pose risks to our security in a way that 
does not seriously undermine the efficient flow of legitimate 
border traffic that is an essential part of our National 
economy.
    Persons who obtain tourist visas to enter the U.S. can stay 
here for 6 months even if they only plan to stay for two weeks. 
Most of the 9/11 hijackers entered with tourist visas, and some 
have argued that routine six-month stays is related to security 
concerns. But limiting the amount of stay in the U.S. could 
lead to longer inspection lines and discouraging tourism 
without substantially deterring terrorism.
    So I look forward to learning more from our witnesses about 
the many aspects of the critical issues of border security, and 
how Congress can be helpful in accumulating the best possible 
improvements.
    I thank you very much, Mr. Chairman, for conducting the 
hearings.
    Chairman Cornyn. Thank you, Senator Kennedy.
    We have two distinguished panels this afternoon. The first 
is composed of Elaine Dezenski and Tom Walters. Elaine Dezenski 
is the Acting Assistant Secretary for Policy at the Bureau of 
Transportation Security for the Department of Homeland 
Security. She was appointed to this position in October of 2004 
and works closely with the various Department of Homeland 
Security components and other Federal, State and local 
agencies, as well as foreign governments and industry 
stakeholders to make the Nation's border and transportation 
network secure while protecting free movement of legitimate 
goods and people across our borders.
    Joining Assistant Secretary Dezenski on our first panel is 
Chief Tom Walters, the Acting Assistant Commissioner of the 
Office of Training and Development for Customs and Border 
Protection. Chief Walters is a long-time border patrol official 
with almost 30 years of border patrol experience. He began his 
career as a border patrol agent in 1975 in El Paso, and I know 
he got a lot of experience there. He is also a graduate of the 
first border patrol tactical unit class in 1984. BORTAC, as 
this unit is known, is a highly successful tactical team within 
CBP that is frequently summoned for high risk and difficult 
missions. BORTAC is tasked with anything from suppressing riots 
and tracking terrorists to intercepting human smugglers and 
drug traffickers. Chief Walters remains associated with that 
unit today.
    I want to welcome again both of you here in our first 
panel, and why do we not begin with Deputy Dezenski, and then 
turn to Chief Walters. If I could get you to limit your opening 
statement to about 5 minutes, and then we will proceed with 
questions from the panel and explore both what you have talked 
about and maybe some things you did not have time to talk about 
during your opening statements during the Q&A.
    Ms. Dezenski?

 STATEMENT OF ELAINE DEZENSKI, ACTING ASSISTANT SECRETARY FOR 
    BORDER AND TRANSPORTATION SECURITY POLICY AND PLANNING, 
       DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, D.C.

    Ms. Dezenski. Thank you very much, Chairman Cornyn, 
Chairman Kyl, Ranking Member Kennedy, Ranking Member Feinstein.
    On behalf of Secretary Chertoff thank you for the 
opportunity to be here today. As you noted, I am fairly new to 
my position and I look forward to working with both you and 
your staff, moving forward on border and transportation issues. 
I am joined by my colleague, Chief Walters, who, as you know, 
will be talking to you today about training of our officers.
    Our goal today is to provide additional visibility into the 
Department's efforts to stop the movement of terrorists across 
our borders.
    I would like to request that my written testimony be 
submitted for the record.
    Chairman Cornyn. Certainly, without objection.
    Ms. Dezenski. Thank you.
    As a Nation we are proud of our history of immigration and 
of being a destination for visitors across the globe. DHS 
embraces the belief of open doors and secure borders. It 
captures this common sense notion that we should keep criminals 
and terrorists out of the country while we quickly and easily 
process those who are known or low risk.
    Building a system that supports this goal requires the 
optimal use of policy, technology, biometrics, intelligence and 
operational experience, all of which contribute to a layered 
system that will stop terrorists.
    I would like to outline three major elements of this multi-
layered strategy that we are building. The first is using 
information more effectively. The second is leveraging 
Government resources, and the third is increasing our 
operational efforts or what we call boots on the ground.
    It is no secret that pre-9/11 pertinent intelligence and 
information was not being shared in a way that would deter the 
terrorist threat. As a result, a multi-layered system to 
prevent terrorist travel into the U.S. that is supported by the 
collection, storing and application of intelligence and 
information sources throughout the Government is a top 
priority, it must be. Improvements include the integration of 
databases that include terror watchlists, visa issuance 
information and immigration status information, as well as the 
ability for our border patrol to more readily access certain 
types of databases.
    DHS has taken the lead in using biometrics at home and 
abroad. It is part of this information roadmap that we are 
trying to build. The VISIT program is the largest daily use 
biometric program in the world with 100,000 people processed 
every day, and it is working. Since January of 2004 the U.S. 
has denied admission at ports of entry to more than 450 
individuals based on biometric information alone.
    Leveraging Government resources is another important 
component of our strategy and one that supports the idea of 
open doors and secure borders. The implementation of visa 
policy in the U.S. has been delegated to the Secretary of DHS, 
but our work at DHS is a close partnership with our colleagues 
at the State Department. Together we are working to secure the 
system while at the same time combating the perception that 
post 9/11 security measures have made it too difficult for 
legitimate travelers to come to the U.S.
    One important example of our efforts to improve the way we 
make decisions about visa applicants is related to what we call 
the Visa Mantis program. These are visas that are issued to 
scientific, business and research travelers. The average 
processing time for a Visa Mantis decision has been reduced 
from 67 days to 15 days, and the percentage of Mantis cases 
pending more than 60 days has been reduced by 8 percent. These 
are the types of improvements that we need to continue to make 
in our processing of visas.
    We have also made improvements in the area of visa 
reciprocity. The U.S. and China recently agreed to a 12-month 
visa validity period for business and tourism visas.
    Another element to the multi-layered strategy's operations 
or boots on the ground, we have focused our available resources 
and high priority initiatives in high threat areas of the 
world. DHS visa security officers in Saudi Arabia reviewed over 
20,000 visa applications last fiscal year. This year we are on 
track within the next 60 days to deploy our permanent 
delegation to two locations in that country, half of whom are 
trained in the local language. We are also moving in 2005 with 
the deployment of visa security officers to five additional 
locations, consistent with our threat-based approach.
    Boots on the ground also applies to our border patrol and 
various border initiatives that we are employing such as 
expedited removal at parts of the Southern border, deployment 
of additional border patrol agents, and the implementation of 
the Arizona Border Control Initiative or the ABC Initiative.
    Under the umbrella of a multi-layered system we are working 
to use information more effectively, leverage Government roles 
and resources, and focus our operational activities on high 
priority initiatives. We know that this will require resources 
allocated appropriately so that we do in fact get it right 
every time.
    Thank you, and now I would like to turn it over to Chief 
Walters.
    Chairman Cornyn. Thanks very much.
    Chief Walters, if you care to make an opening statement?

STATEMENT OF THOMAS J. WALTERS, ASSISTANT COMMISSIONER FOR THE 
    OFFICE OF TRAINING AND DEVELOPMENT, CUSTOMS AND BORDER 
 PROTECTION, DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, D.C.

    Mr. Walters. Chairman Cornyn, Ranking Member Kennedy, I am 
happy to be here today to testify about how we train our border 
officers to do their jobs on the border, both at the ports of 
entry and between the ports of entry.
    As part of the Department of Homeland Security and BTS, 
Customs and Border Protection combine the personnel and 
functions of four different agencies, most of Customs, all 
Immigration inspectors, Agriculture border inspectors and the 
entire United States Border Patrol under one Agency, an Agency 
to manage, control and secure our Nation's borders.
    As CBP celebrates our second birthday, CBP is no longer an 
amalgam of parts, but a single Agency united to a common 
mission and a common top priority, to prevent entry into this 
country of terrorists and terrorist weapons. CBP is new, our 
mission is new, our priority is new. We have designed training 
to fit our new organization.
    CBP now recruits, hires and trains its enforcement officers 
at the ports of entry as CBP Officers. Our new officers begin 
their careers with a 20-day training and orientation program at 
a new duty post, followed by 73 days of training at the CBP 
Academy. After graduation the new officers return to their duty 
posts and begin a formal program that includes 37 distinct 
modules of specific training and supervised application in the 
workplace of the training and the skills that they have 
acquired.
    Our existing workforce, with its Customs, Immigration and 
Agriculture heritage and knowledge played a key role in 
developing CBP's operational concepts, and the training 
programs that support those concepts. We train our workforce to 
become complete CBP officers. Our veteran CBP officers 
participate in training that addresses the Immigration, Customs 
and Agriculture functions that were not part of their former 
Agency. In addition, every CBP officer, new or old, 
participates in training that addresses areas where previous 
training programs were weak or nonexistent, such as 
antiterrorism training, fraudulent documents training, and 
training how to identify weapons of mass destruction.
    CBP is very active in preparing its front-line officers to 
do their jobs properly. In a recent article a private research 
group reported that the top 10 learning organizations in 
private industry provide employees with an average of 77 hours 
of training per year. CBP Office of Field Operations--this is 
where our people at the ports come from, the Office of Field 
Operations--by way of comparison recorded 3.3 million hours of 
training for its 23,400 employees in fiscal year 2004, for an 
average of just over 140 hours per employee. Top ten 77 hours 
per employee per year, CBP OFO, Office of Field Operations, 140 
hours of training per employee.
    CBP continues to research and develop new and more 
sophisticated antiterrorism training for our front line 
officers. Informed by our front line officers, our supervisors, 
managers, leadership in the organization and the work of the 9/
11 Commission, CBP develops and distributes new courses and 
improves existing courses in detecting chemical, biological, 
radiological and nuclear weapons. CBP, for example, has trained 
100 of its front line officers to conduct exercises built 
around terrorist and critical incident response scenarios 
through FEMA's Master Exercise Practitioner Program, and these 
fine officers are now distributed around the country to do just 
that.
    CBP has developed a counterterrorism response protocol that 
tells front line officers--it takes them through the various 
steps in identifying possible terrorists and what steps to 
follow when they are encountered. Included in this newly 
developed training are the cultural backgrounds of likely 
source countries, and how to detect deception, and how to 
detect and elicit responses from possible terrorist operatives. 
Experienced subject matter experts and experienced role players 
play an important part in this new training.
    I thank the Subcommittees for the opportunity to present 
this testimony today. I would be happy and pleased to take any 
questions you may have.
    Chairman Cornyn. Chief, I am advised you have a one- or 
two-minute video you wanted to show us. This is in conjunction 
with your opening statement or does this relate to some other 
subject?
    Mr. Walters. I believe that has been scrubbed, sir.
    Chairman Cornyn. That has been scrubbed, okay.
    With that, Senator Kyl, I know has to leave, and so to make 
sure he has an opportunity to ask questions of the witnesses, 
we will go to him first.
    Chairman Kyl. Thank you very much, Chairman Cornyn.
    I was just down, as I said, on the Arizona border, visited 
with the new border patrol chief there, Chief Nicely, who was 
very positive about the CBP program there and said that 
everybody was working well together, and he was very optimistic 
that it would continue to work very well. So that is just one 
little field report, in any event.
    I think probably most of these questions, Ms. Dezenski, are 
for you, but either one of you who would like respond, feel 
free. The questions that I raised earlier about the visas that 
were issued in Saudi Arabia; we had a Visa Express Program 
there. That is different now. Perhaps you could discuss how 
that is different, how the oral interview process is different, 
and the screening, and then perhaps the training as well.
    In addition, I know she is going to ask, and you might as 
well anticipate the question on the biometric identification 
program, because I am with her, it is time to move on with 
that.
    Ms. Dezenski. We have made substantial progress in terms of 
implementing some of the requirements under section 428 of the 
Homeland Security Act, specifically the provisions to enhance a 
visa security program, and let me just give you a couple 
statistics that I think will give you a sense for what we have 
done.
    After the legislation was passed, we immediately started 
working on developing a training program and developing a 
system, if you will, to start moving visa security officers out 
to the field, and of course the legislation was very specific 
about sending people to Saudi Arabia, and that was our first 
activity.
    We have obtained program funding in 2005 in the amount of 
$10 million. We have selected permanent visa security officers 
for Saudi Arabia, and they will be deploying, as I mentioned in 
my testimony, within the next 60 days. Half of that delegation 
does have language training, which we think will facilitate 
their activities there. We have already been working with the 
consular staff in both locations in Saudi Arabia. And we 
reviewed over 20,000 visa applications last year.
    We are now able to delve into databases. We have biometric 
information available at all of our consular locations, so our 
officers are able to access that along with the state's 
consular officers to be able to make a better determination on 
whether to issue a visa.
    So we have made some progress and we do expect that we will 
continue to expand that program. We have five additional 
locations identified in 2005. There are also areas that we 
would consider to be high threat, so we are moving out our 
folks just as quickly as we can.
    Chairman Kyl. Do you want to respond to the other questions 
regarding the Visa Waiver Program? And by the way, the 
processing did involve oral interviews; is that correct?
    Ms. Dezenski. In some cases, yes. I can get back to you on 
whether that was all. I do not know.
    Chairman Kyl. You do need to get back to us on the oral 
interview because that was a key part of our finding, a key 
problem before and something we wanted to ensure would be 
resolved.
    Ms. Dezenski. Absolutely.
    Chairman Kyl. Can you give us the status of the Visa Waiver 
Program right now, particularly with respect to any countries 
of particular interest from a terrorism standpoint?
    Ms. Dezenski. Absolutely. We have been undergoing a very 
comprehensive review of our Visa Waiver Program countries. In 
fact, within the Border and Transportation Security Directorate 
we set up a special office, specifically to deal with Visa 
Waiver Program reviews. We are actually finalizing that report. 
It will be sent to Congress very shortly, and we did have 
several countries--although we cannot go into specifics about 
them--we did have several countries where we were concerned 
about the number of lost and stolen passports. We were 
concerned about some of the other factors that we look at when 
we review countries and determine whether they should stay in 
the program, so we will be making some recommendations in that 
final report as to the status. But we are heartened that Visa 
Waiver Program countries are now providing to us lost and 
stolen passport data, which is entered into our database 
systems and available to both consular officers and to our 
border patrol. So we have been able to implement some 
additional activities that we think are very important and are 
making a difference.
    Chairman Kyl. I might note that at the hearing that we held 
in June of 2004, I asked the Department of Homeland Security 
and the State Department to provide us with periodic updates on 
the progress of the 27 Visa Waiver Program countries were 
making to come into compliance with out October 26, 2005 
deadline. We have received no updates that I am aware of, and I 
think if you would please check on that and get back to us as 
soon as possible, that would be appreciated.
    Ms. Dezenski. I actually could give you a couple updates 
right now, sir. We have been working very diligently, both 
within DHS and with foreign governments to move towards meeting 
the deadlines. As you know, last year we did ask for an 
extension. At this point we think that of the Visa Wavier 
countries, about two will be actually ready to meet that 
October 2005 deadline. So we think there is more work to do. We 
do not think this is because countries are not trying to meet 
the requirements. We think there has been a significant amount 
of progress, but we are running into technical issues and 
operational issues that are taking some time to work through.
    So we continue to work diligently. The Visa Waiver Program 
countries continue to work diligently. We are moving forward as 
fast as we can to meet those requirements.
    Chairman Kyl. You need to get us an update in writing, 
please.
    Ms. Dezenski. Okay, be happy to.
    Chairman Kyl. Thank you.
    Chairman Cornyn. Thank you, Senator Kyl.
    Chief Walters, let me ask you just a general question to 
start out with about morale and conditions for our border 
patrol agents generally. The USA Today reported that border 
patrol agents felt overwhelmed by their job in at least some 
instances. I do not know if we have a percentage reported. But 
another article, this one in the Washington Post, reported on a 
poll that found a high percentage of border patrol agents were 
not satisfied with the tools and the training and the support 
they received.
    I would just, by way of anecdote, give you the benefit of 
my observation in a small portion of the border that we ask our 
border patrol agents to patrol, and what they tell me is they 
feel out-manned and under-equipped. While they do have 
technology like ground sensors, cameras and the like, that in 
the event an intrusion is identified that there is a very good 
chance, in other words, and no doubt in most if not all cases, 
they are not able to assure that they apprehend every single 
person that tries to come across the border. Is that as a 
result of a lack of technology, a lack of training, that they 
do not have the equipment they need, or that they are simply 
overwhelmed by the numbers that are trying to come across our 
borders?
    Mr. Walters. We are trying to give them all the tools that 
they need and train them up, and we do spend a great deal of 
time and energy preparing them for that. This is a classic 
example. I cannot think of any year since 1975, when I came in, 
where there were fewer aliens to apprehend than there were 
border patrol agents to apprehend them, and that is still the 
case. But I like to think, and I think we could probably give 
you a more involved answer or more succinct answer on paper, 
but my instincts tell me that we have never paid more attention 
to our borders than we are paying to those borders right now, 
that if we are not quite there yet, we are on the way. We have 
increased the number of border patrol agents. We have increased 
the technology on the ground. We have increased the amount of 
training and the kinds of training we are giving. We have 
changed the entire organization, including the border patrol, 
to focus on preventing the entry of terrorist weapons and 
terrorists first, as the first priority of all their 
traditional missions.
    So, yes, I can understand. I am a member of the club that 
understands why border patrol agents feel like they are 
overwhelmed, and we have not given them everything they need, 
but we are working it, and I think we are energetically pursing 
it.
    Chairman Cornyn. Chief, just by way of follow up, let me 
ask you what is it that you think that our border patrol agents 
need that they do not have that will allow them to successfully 
detect and prevent incursions across our border?
    Mr. Walters. Well, they need a good mix. They need a good 
mix of the technology. They need a good mix of training. They 
need a good mix of border patrol agents and all the things that 
go with it, the support, the buildings, and they need the work 
of this body to help them with the laws and regulations that 
inform what they do, enable what they do on a border if it take 
place.
    Chairman Cornyn. My understanding is that once detained, 
there are criminal background checks and other checks performed 
on these people that are coming across, and if they are not 
wanted on criminal charges or have a criminal record, that they 
are eligible for what Senator Feinstein has called the catch 
and release program, in other words, to report back for a later 
hearing. Is that generally accurate, what I have just stated?
    Mr. Walters. It is true that we do a record check on every 
individual on the border patrol side; every individual that the 
border patrol catches has gone through some sort of a two-print 
or a ten-print, and we get some sort of a feedback record on 
that unless they are a new entrant of course, this is the first 
time.
    I forget the rest of your question. Is that responsive?
    Chairman Cornyn. The problem is, what I was getting at, 
while you do screen for people with criminal records or 
criminal histories and perhaps those who have tried to make 
repeated trips across and been caught, the vast majority of 
people that you do catch, the border patrol catches, are 
eligible for a release program to return for a later hearing; 
is that not correct, sir?
    Mr. Walters. It is true that of all the people we catch we 
do take a lot and give them a voluntary return back to 
contiguous territory like Mexico. But on the other hand, their 
record has been taken and then the next time they get caught we 
will know if they came in once or twice. This helps us discern 
whether this is a routine traveler coming across to work the 
fields or someone who is going to try and enter the United 
States to do us harm. There is a difference between those and 
we are trying to discern that difference, because we can expect 
to apprehend and have apprehended close to a million or 
slightly over a million aliens every year.
    Chairman Cornyn. My understanding--and this is my last 
question for this first round--is that while the border patrol 
does apprehend on the order of a million people a year, that 
there may be as many as another half million that are able to 
come across undetected. Do you agree with that figure or do you 
dispute it? Do you have another figure that you believe is more 
accurate?
    Mr. Walters. I do not have a substitute figure for that. I 
think everyone is entitled to their own view on it. Statistics 
indicate that it is a fairly large number, but we just do not 
really know, and I do not personally have any better 
information than what you have seen, sir.
    Chairman Cornyn. Thank you, Chief.
    Senator Kennedy.
    Senator Kennedy. Thank you.
    Ms. Dezenski, let me ask you, on these visas, for example, 
in Saudi Arabia part of the problem, going back to 9/11 is that 
the Central Intelligence Agency was not working with the 
Immigration Service. They were not sharing the list. They 
thought if they shared the list that they would lose their 
sources on this.
    Now in the development of the watchlist, it is working now. 
CIA is talking, FBI is talking, the watchlist is updated every 
single day. Tell me what is happening out there just quickly if 
you could.
    Ms. Dezenski. Absolutely. Senator, it has gotten much 
better. A lot of those databases that you mentioned have been 
integrated primarily through the US-VISIT process as we have 
begun the collection of biometrics. That is also combined with 
terror watchlist information, immigration information, sources 
from all over the Government, and that is absolutely the right 
way to do things.
    Senator Kennedy. When is your watchlist upgraded? Is it 
sort of daily now?
    Ms. Dezenski. It is, it is.
    Senator Kennedy. It used to be a couple of weeks or three 
weeks.
    Ms. Dezenski. It is updated on a very regular basis. It is 
daily. And the information comes from different sources within 
the Government. We get some information from agencies within 
the Department. We get other information from the FBI. So all 
of this is compiled and utilized.
    Senator Kennedy. And there is harmony with all the 
agencies, the FBI, the CIA and others? How would you 
characterize?
    Ms. Dezenski. I think it has gotten better.
    Senator Kennedy. Better, well that is----
    Ms. Dezenski. I do not know if I would go as far as saying 
that everyone is in perfect harmony, but we have made some 
progress and we will continue to.
    Senator Kennedy. Secretary Chertoff is going to make sure 
that they are.
    Ms. Dezenski. absolutely.
    Senator Kennedy. Let me ask you, just on the timing--again 
I want to move along--on the visa waiver. The two countries I 
understand is Japan and Australia are the two countries. There 
may be others. But how are we doing? I mean if we are going to 
have these other countries, if we set the deadline, Japan and 
Australia evidently have indicated they can meet October of 
2005. Where are we, just quickly on that, being able--if they 
do develop it, are we going to have the sense and the ability 
to be able to read these and to be responsive?
    Ms. Dezenski. That is certainly our intention. We are well 
aware of the October 2005 deadline, and we have----
    Senator Kennedy. What is your estimate now? This has been a 
continuing process, and we know that you--what is your own kind 
of sense about it? Do you think you are going to make it within 
a couple of months or what is the----
    Ms. Dezenski. I think it is going to be difficult to make 
October 2005. We are probably looking at some point in 2006. I 
hate to be more specific than that, but we could certainly 
follow up with something in writing.
    Senator Kennedy. Fine, okay. I might come back to you just 
sort of as a general--it would be useful, if the Japanese and 
the Australians are able to do this, whether they are sharing 
it with these other countries, their information, or how they 
are able to try and do this.
    Mr. Walters, just on the training programs, I was trying to 
write down as you were reading the number of hours. I heard 140 
hours a couple of times, and I was looking at 40-hour weeks, 3-
1/2 weeks. What is the situation? You train these people. This 
is an anti-terrorism passenger processing, agricultural 
fundamentals. You know, we have problems in terms, as we heard 
from the former Secretary of HHS, of the dangers. You have 
immigration documentation examination, customs cargo 
processing, let alone the weapons of mass destruction. How in 
the world are we going to be able to get all of that done? I 
went to 16 weeks basic training in the infantry just to learn 
how to fire some weapons, but we did not have that kind of a 
complexity I do not think that these agents have. Can that 
really be done in that short a period of time?
    Mr. Walters. We give ourselves that in basic training of 
course. What we are trying to do, and the goal that I train to, 
is to build a complete CBP officer. And so our new recruits, 
the first batches have slightly less than 18 months service, 
and we are building them towards becoming a complete CBP 
officer. That will take time. It takes years and experience. 
From my own experience, I was not really a very good border 
patrol agent until I had about 7 years under my belt.
    Senator Kennedy. In terms of the freshmen customs or border 
agents, what is their basic training before they are out?
    Mr. Walters. Their basic training is 73 training days at 
the border patrol--I am sorry--at the CBP Officer Academy.
    Senator Kennedy. This is a raw recruit, get into there and 
then out on the job. So that is how many--just give it to me 
quickly because my time is almost up.
    Mr. Walters. What is it that you----
    Senator Kennedy. The question is--I have my wife's nephew 
over in Mosul. He is a tail gunner on a striker. he had 12 
weeks at Fort Benning, 4 days at Fort Lewis to get his 
equipment and is in Mosul as a tail gunner. I am asking you how 
many weeks for just a raw recruit to be on the border patrol 
down on the border?
    Mr. Walters. For a CBP officer, they have 20 days in their 
port before they go to the academy, and then 73 days, which 
usually works out to be about 14 weeks or training at the CBP 
Officer Academy. Then they go out to the CBP duty post and they 
get modules of training one after the other, sir.
    Senator Kennedy. I will come back because I just want to 
ask you a final question. My time is up. I would like to get a 
little more, go into that a little bit more.
    Senator Kennedy. I have heard some disturbing reports of 
vigilantes planning to converge in Arizona in April to start 
making arrests of suspected immigrants. This is obviously a 
potential dangerous situation. Are you familiar with this at 
all?
    Mr. Walters. Yes, I am, sir.
    Senator Kennedy. And you are monitoring this? Is there 
anything we ought to know? Is there anything you ought to tell 
us about?
    Mr. Walters. I do not have anything special to offer. I 
just want to remind the Committee that----
    Senator Kennedy. I mean if it is classified or whatever, 
you can do whatever way, you can tell the Chair.
    Mr. Walters. I will be glad to come back to you with that 
information.
    Senator Kennedy. Could you give us a report on that?
    Mr. Walters. I can certainly do that.
    Senator Kennedy. Please? I would like to share that with 
the members of the Committee. My time is up.
    Thank you, Chair.
    Chairman Cornyn. Thank you.
    Senator Feinstein. Yes or no answer, please. Are we still 
catching and releasing OTMs, other than Mexicans?
    Mr. Walters. Yes.
    Senator Feinstein. Thank you. I think that points out 
something very clear, and that is that coming over the 
Southwest border is clearly the way somebody is going to 
penetrate the country because they are caught and they are 
released, and there are 48,000 this past year. So I would just 
leave the record with that.
    Is it still the policy that a fraudulent or stolen passport 
is returned to the individual?
    Ms. Dezenski. No, it is not.
    Senator Feinstein. What is the policy?
    Ms. Dezenski. The policy is to take those documents at the 
point of entry, which we have been doing since January.
    Senator Feinstein. And that is 100 percent of the time?
    Ms. Dezenski. That is my understanding.
    Senator Feinstein. What happens to the individual?
    Ms. Dezenski. Well, I think it depends on what might be 
associated with that individual. If they are coming up as a 
hit, they may go into secondary. If they are not coming up as 
having anything of interest to us, then they may be able to 
leave. It just depends on whether there is reasonable suspicion 
to keep that person.
    Senator Feinstein. I appreciate that. But it seems to me in 
this day and age that use of a fraudulent or stolen passport 
should be a ``go to jail card.'' And I am introducing 
legislation to make it an aggravated felony simply to get 
people to pay attention to it. I think we have really got to 
put a stop to the use of fraudulent and stolen passports. What 
I have learned is these passports are very cleverly 
manipulated. They are stolen by large numbers, which only means 
they are going to be used for illegal entry into the country 
one way or another, as are international driver's licenses, 
again, stolen in large numbers, Geneva Convention travel 
documents, again, stolen in large numbers.
    I think it is a very serious problem. I would call your 
attention to pages 25, 26 and 27 of the April 2004 OIG report 
on the security implications of the Visa Waiver Program.
    May I ask if you have both read these reports?
    Ms. Dezenski. I have read them, yes.
    Mr. Walters. I have not.
    Senator Feinstein. It might be a good thing to read. They 
are very informative reports, and it almost seems to me that 
this report or this process of investigation should be carried 
out every year because it is really the OIG that goes through 
on the other-than-Mexicans permeating the border, and lists the 
countries and the numbers. If it were done on an annual basis I 
think it would give you a very good indication of the countries 
where this is really a problem. In any event, I intend to ask 
that it be done.
    Now, let me ask you about the biometric passport deadline. 
Last year, as I mentioned, the administration came and asked us 
to extend by 1 year the biometric passport deadline for the 
Visa Waiver Program. Since you could not meet the deadline of--
not you, but the Departments could not meet the deadlines of 
October 26, 2004 for complying with the 2002 Enhanced Border 
Security and Visa Entry Reform Act, are you going to ask for 
another extension?
    Ms. Dezenski. We have not made a formal determination on 
that at this time. But as I stated earlier, we are working 
through a lot of technical and operational issues right now. We 
are working through them as quickly as we can, and our 
intention is to come as close to that deadline as we can.
    Senator Feinstein. You mean to get the system up and 
running before that deadline? Is that your goal?
    Ms. Dezenski. Absolutely, yes. Whether we will make that is 
dependent on how quickly we can get through these challenges, 
these remaining challenges, procurement challenges, 
operational, technical. We are still testing readers.
    Senator Feinstein. Could you tell me what the problem is or 
tell us what the problem is?
    Ms. Dezenski. Absolutely. It is really on a number of 
fronts. We are dealing with new territory here in terms of 
requirements to put readers at all points of entry. We need 
readers that will be able to recognize documents from many 
different countries.
    Senator Feinstein. Let me stop you there. How many points 
of entry? The OIG found that there were many points of entry 
where this program was not in place.
    Ms. Dezenski. I cannot give you the exact number, but I 
would be happy to follow up with that.
    Senator Feinstein. I would appreciate that very much.
    Ms. Dezenski. Sure.
    Senator Feinstein. And what else? So it is readers at the 
points of entry. So the bottom line is that the points of entry 
are not covered. Therefore, there is no way of knowing about 
the passport or whether it is biometrically----
    Ms. Dezenski. Senator, there are other issues with 
countries not being able to manufacture and distribute the 
machine-readable biometric passports within the time frame, the 
current time frame as well. So along with the concerns that we 
have internally, and again, we are moving as quickly as we can 
to get those deployed, there are also concerns coming forward 
from the waiver countries with meeting the deadline for 
actually putting the passport out.
    Senator Feinstein. I know this is a difficult area because 
I know countries do not want to comply, but if you would send 
us a list of those countries that are not in compliance or have 
refused to comply, I think the question comes then whether they 
should continue under the Visa Waiver Program. I know they say 
tit for tat, that they want to do the same thing to the United 
States. I mean my view in this world today is that we ought to 
know who is coming into our country with reasonable certainty, 
and I do not think that is too much to ask of a Visa Waiver 
country. And we also want to know when they leave.
    So let me ask this question. Do we know when visa waiver 
individuals leave the country?
    Ms. Dezenski. No, we do not, because we have not completed 
the US-VISIT exit portion of the system.
    Senator Feinstein. We have 13 million people coming in. We 
do not know whether they ever leave or no. And although they 
are from friendly and very often closely allied countries, it 
is not hard, and we saw where Richard Reid, Padilla, others, 
used the Visa Waiver Program to come into this country, and 
there is no way of knowing if the individual ever leaves yet.
    Thank you very much, Mr. Chairman.
    Chairman Cornyn. Thank you, Senator Feinstein.
    I have just a couple more questions for Secretary Dezenski, 
and I am afraid, Senator Feinstein, the more questions you ask, 
the story just does not get much better. It seems to reveal the 
depth and the breadth of the challenges that we have.
    My question, Assistant Secretary Dezenski, has to do with 
the different ways we treat different visitors. For example, 
the Border Security Staff Report identified the visa length of 
stays as a potential security issue. They compared the length 
of stays granted to business travelers, visa waiver 
participants and tourists. Can you explain why business 
travelers receive stays tailored to their purpose, visa waiver 
participants receive 90 days, and tourists automatically 
receive a six-month extension even if their trip is for only a 
few weeks?
    Ms. Dezenski. With respect to the first category of Visa 
Waiver Program country participants, we have a reciprocal 
agreement that is actually in statute. It is a 90-day 
reciprocal agreement on the stay, so that explains how we have 
that category and why it is different. For the B-1 business 
visa it is tailored to the amount of time that is reasonably 
allowed for that person to complete their business in the U.S. 
With regard to the B-2, it is valid maximum admission actually 
for 12 months, but it is generally admitted for 6 months. It is 
up to the admitting officer to make the final determination in 
those categories. We do afford that to our border patrols, to 
be able to make that decision based on other information that 
they might have.
    Chairman Cornyn. Would it make sense to you that we ought 
to have a uniform policy tailoring the length of a visa to the 
stated purpose for which someone enters the country, as opposed 
to arbitrary deadlines extending months and even a year or more 
into the future?
    Ms. Dezenski. I do think it is something that we need to 
look at as part of a broader visa policy review within the 
Department. The question has come up many times and I do think 
it is something we need to take a look at.
    Chairman Cornyn. My understanding is that roughly 40 
percent of the illegal immigration in the United States now 
comes from people who have entered the country legally, but 
have just merely overstayed their visa. I believe you answered 
Senator Feinstein that we have no means, that is zero means of 
identifying where those people are or actually making sure that 
they leave the country when their visa expires. Is that 
correct?
    Ms. Dezenski. It is, but that is the other part of the US-
VISIT program. It is an entry program and an exit program, and 
now our focus is on building the exit piece of the system 
because we recognize that in fact that has been a vulnerability 
and it needs to get fixed. So that really is a focus over the 
next 12 months, to get the exit system up and running at all 
ports of entry.
    Chairman Cornyn. Well, if I can press you just a little bit 
on that point. US-VISIT, the exit feature of US-VISIT, when it 
is implemented--it is not yet implemented--will allow us to 
know when somebody leaves, right?
    Ms. Dezenski. That is correct.
    Chairman Cornyn. But for somebody who does not leave, it is 
not going to tell us where they are or how to find them, will 
it?
    Ms. Dezenski. No, that is a very difficult problem. I mean 
we have tried some things at the Southern border with our 
border crossing cards, where we actually have an RFID 
technology in the travel card, which is one way of being able 
to validate ID and use a little bit of technology to try to do 
a better job at it. Once visitors are in the country if they 
are not exiting at any given time, it seems like we would have 
a big problem on our hands to try to locate millions--
potentially thousands of people I would think. So we need to do 
a better job on the up-front piece of the process to make sure 
that when we are issuing visas, for example, that we are doing 
so for people who have legitimate business and intend to leave 
during their stated time.
    Chairman Cornyn. I agree with you. We need to do a better 
job of making sure people leave when their visa expires. But 
the problem is the same for people who come into the country 
legally and overstay their visa, thus making their presence 
here illegal, and those who come in illegally in the first 
place, right? Estimates of somewhere around 10 million people 
are illegally in the United States and the fact is we do not 
know where they are, and we do not know how to enforce the law, 
and deport them back to their country of origin even if we 
wanted to. Is that a correct statement?
    Ms. Dezenski. I think you have accurately characterized the 
problem. I think it is a balance for us though as the 
Government, to be able to secure the borders and have an open-
door policy. Sometimes people overstay their visas for reasons 
that are completely legitimate, they are in the hospital, they 
missed their flight. There are lots of real-world reasons. Now, 
that is not to say that people should be overstaying their 
visas. We want people to adhere to those requirements, but I 
think we need to make sure that we have a balanced process.
    Chairman Cornyn. I am sure you are absolutely right that 
there are some people who cannot help but overstay their visas, 
but I would suggest that it does not approach 10 million in 
number. But we will get to that, perhaps, at our second hearing 
we have scheduled on April the 6th, where we are going to talk 
more about interior enforcement and those issues.
    Senator Kennedy.
    Senator Kennedy. Just quickly on the exit. That is true for 
the visa waiver, but it is also true on granting the visas in 
any event, is it not? Do we not have this problem if it is a 
visa waiver country or it is non-waiver country. I mean it is a 
general kind of problem, is it not?
    Ms. Dezenski. Yes.
    Senator Kennedy. I thought that at least in some areas when 
you get the visa you had to demonstrate, you know, either that 
you had a return ticket or that you had the resources to be 
able to return. I mean these people and the places where they 
are granting the visas, they just do not do it out of the 
goodness of their heart, do they?
    Ms. Dezenski. You are right. There are some requirements 
when people go through the visa issuance process. A return 
ticket sometimes can be a good indicator, sometimes it is not. 
So there are some limitations there.
    Senator Kennedy. Thank you.
    Chairman Cornyn. Senator Feinstein?
    Senator Feinstein. Just a comment. The problem with all of 
this is there is enormous pressure from commercial sources, you 
know, to allow in a sense a lax system, that people can come in 
and go out at will, and yet that becomes the soft underbelly 
because it becomes easy to use a fraudulent passport or a 
stolen passport, and the other countries in the Visa Waiver 
Program, if we do it to them, they will do it to us. I mean my 
view of that is everybody should do it in this day and age. But 
that is just me.
    I would like to ask this question. You mentioned that since 
January the passports in all cases are removed from the 
individual. I assume the individual is let go, or is allowed to 
go home. No?
    Ms. Dezenski. No. It depends. I mean normally if you have--
and Chief Walters may be able to add to this, but if our border 
agents are detecting a fraudulent document, that is usually 
enough to get you into secondary. And then when you go into 
secondary, there is a lot more work done in terms of 
understanding what the potential threats might be, checking 
additional databases, et cetera. So the idea that people are 
presenting fraudulent documents and then simply walking away, I 
think is probably not the right characterization.
    Now, once we proceed with secondary, there may be grounds 
for additional action, there may not be.
    Chief Walters, do you have anything to add?
    Senator Feinstein. Well, certainly they would not walk 
away. I would think they would be deported. I mean you are not 
going to let somebody come in with a fraudulent passport, 
remove the passport and let them go into the country, right?
    Mr. Walters. In fact, you are correct, if I may.
    Senator Feinstein. Please.
    Mr. Walters. There are codes in the immigration laws that 
allow for us to prosecute for fraudulent document entry using a 
fraudulent document or using fraud to enter the country. At the 
very least the person that perpetrates the fraud loses 
potential immigration access to the United States for years at 
a time, and I would have to get back to you on what the exact 
code is, but it is not without penalty.
    Senator Feinstein. It is not without?
    Mr. Walters. It is not without penalty completely. There 
are some certain parts of the code that will allow us to 
prosecute, and we do find that grounds. We do take it in front 
of the assistant attorney ask for a prosecution on it when we 
can.
    Senator Feinstein. We have draft legislation of a bill 
which I would like to ask my staff to show both of you and get 
your input on, if you would, please. But I assume you do not 
let anyone come into the country with a fraudulent or stolen 
passport; is that correct?
    Mr. Walters. That is correct.
    Senator Feinstein. Then most would then be deported or 
would go back to where they came from. What do you give them to 
go back with if you take the passport?
    Mr. Walters. We have a letter. We actually take a Xerox 
copy of the passport, retain the passport for ourselves and do 
a letter. There is a technical term for that letter that 
escapes me at the moment. But this letter goes with the 
individual back to his home country whether it is for an 
expedited removal case or after a prosecution. Eventually they 
go back and we use this letter to transfer them back to their 
country of origin.
    Senator Feinstein. Would it be possible for you to give us 
some statistical analysis of that program, say in the first 6 
months since you have been doing it since January and it is now 
March, say by July, that we might have some analysis of how 
many passports you have taken; how many people have been tried 
or had charges brought against them; how many go to jail; how 
many are let loose, because I bet there are some; and how many 
go back?
    Mr. Walters. As I understand the question you would like a 
statistical report from January when this new policy went into 
effect and show the effects of that policy and how many were 
prosecuted, how many went back, and what we did with----
    Senator Feinstein. Right. In other words, take a look at 
the first 6 months, so give you a lot of advance notice so it 
will not be a problem to set it up and do it.
    Mr. Walters. Yes, ma'am.
    Senator Feinstein. I appreciate that very much.
    Mr. Walters. Yes, Senator, we can do that.
    Senator Feinstein. Thank you.
    Thank you very much, Mr. Chairman.
    Chairman Cornyn. Thank you, Senator Feinstein.
    Secretary Dezenski and Chief Walters, thank you very much 
for appearing here before us today. We know you were asked some 
tough questions, and I think it reveals the scope and nature of 
the challenge that lies before all of us. We certainly 
appreciate your service. Thank you very much.
    Ms. Dezenski. Thank you.
    Mr. Walters. Thank you, Mr. Chairman.
    [The prepared statement of Ms. Dezenski and Mr. Walters 
appears as a submission for the record.]
    Chairman Cornyn. If we could have our second panel of 
witnesses step up here momentarily. If you will forgive me, I 
am going to start introducing you while we are clearing a place 
for you to sit.
    We are pleased to have a distinguished second panel today, 
and I want to thank them as well for their appearance.
    Doris Meissner currently serves as a Senior Fellow with the 
Migration Policy Institute. Notably she served as the 
Immigration and Naturalization Commissioner from October 1993 
to November of 2000 during the Clinton administration, and has 
extensive immigration experience, including reforming the 
Nation's asylum system, creating new strategies to manage U.S. 
borders in the context of open trade, and improving services 
for immigrants.
    Also with us this afternoon is Janice Kephart, a Senior 
Consultant for the Investigative Project. She has recently 
served on the National Commission on Terrorist Attacks Upon 
America, otherwise known as the 9/11 Commission, where she 
served as counsel on the immigration, nonimmigrant visas and 
border security team. She is a key author of the 9/11 
Commission Staff Report, ``9/11 and Terrorist Travel,'' 
released in August of 2004. This is only one of two staff 
reports published by the Commission and the only one to be 
published in print, and serves as the basis for our hearing 
today.
    Welcome to both of you, and we are pleased to have you here 
with us. Again, if you would do what sometimes we forget to do, 
and that is turn your microphone on when you speak so we can 
all hear you, and we would like to give you a chance to make 
any opening statement you would like.
    Ms. Meissner, we would be happy to start with you. thank 
you for being with us.

   STATEMENT OF HON. DORIS MEISSNER, FORMER IMMIGRATION AND 
   NATURALIZATION COMMISSIONER, AND SENIOR FELLOW, MIGRATION 
               POLICY INSTITUTE, WASHINGTON, D.C.

    Ms. Meissner. Thank you, Mr. Chairman and members. Thank 
you for inviting me to participate.
    You have designated two issues for this hearing, training 
and length of admission on visitor visas. I will focus on the 
second question, the length of admission on visitor visas.
    The background for what I call the six-month policy dates 
from the early 1980's. The policy was established at that time 
as part of a broad effort to better manage the adjudications 
workload of the Immigration and Naturalization Service. It is, 
as you probably know, a change that is in regulation, it is not 
statutory, and it arose from a survey that was done at that 
time of the workload in the district offices around the 
country.
    We learned that in looking at the adjudications workload in 
those district offices, the largest share of the work in those 
offices was extensions of stay, applications that people who 
were here on visitor visas were making to stay here longer than 
the time that had been designated by the inspector at the port 
of entry.
    So in looking at that workload and trying to understand why 
there were so many extension of stay applications being made, 
we found out several things. First of all, that the inspectors 
were basically making decisions that were arbitrary and 
inconsistent around the country with regard to people's stay. 
Secondly, that almost all of the extensions that were being 
requested were being granted by the district offices. And 
finally, that typically the norm fell at the six-month period, 
that people were given 6 months to stay and that largely met 
the needs that they were articulating to the examiners in the 
district offices. So we set up 6 months as the norm.
    The result of doing that was that it eliminated this 
situation of one part of the Agency, the inspectors at the 
ports of entry creating a workload for the examiners in the 
district offices. It freed up very high-skilled or expert 
resources of examiners in district offices to focus on the most 
sensitive of the adjudications, which are the adjustments to 
permanent residents and the naturalization applications, which 
really go to the heart of the integrity of the immigration 
system, and of course it does not or did not preclude 
inspectors from designating less than the six-month period. It 
was to be a guideline.
    I think in the years since, it has been viewed as a 
successful policy, but it was developed 20 years ago, and that 
is or course a long time ago, not only in years but in 
experience, and I am unaware that there has been any serious 
review of the policy in the time in between. And even if we had 
attempted to do a serious review of the policy, we would not 
have had the data available to reach any sound conclusions.
    So given the fact that it is old, and given the fact that a 
lot has changed since most particularly 9/11, I think it is 
absolutely appropriate to review the policy. Moreover, we have 
now the tools to begin to understand a little bit more how 
these things are working, most particularly the US-VISIT 
program. When the exit portion of the US-VISIT program actually 
is put into place, we will be able to understand how a policy 
like this works, what its implications are.
    At the same time, I think it would be a serious mistake to 
rush to judgment and to simply make a linkage between the 6-
month policy and vulnerability to terrorism. We do not have any 
information really that tells us that one leads to the other. 
The critical thing is that we start to understand this and 
recognize that it needs to be analyzed.
    Now, in analyzing it, there are a couple of things that are 
very important. First of all, there are enormous workload 
implications to changing a policy like this. If you look at the 
numbers, we granted 28 million visas in 2003, non-immigrant 
visas. I have given you the math in the statement, but the 
bottom line is that almost a third of those visas of that 28 
million are subject to this 6-month policy or guideline.
    In addition to that, of course, given those numbers and the 
uses of the B-2 visa, there are a huge range of stakeholders 
and very compelling public policy interests that are 
encompassed in that B-2 visa grant where the 6-month policy 
applies. I think a very good illustration of that is 
regulations that were put out in the spring of 2002 to try to 
reduce the 6 months to a 30-day policy. There was an enormous 
storm of opposition to those proposed regulations, and they 
have been set aside.
    So changing it really requires doing some homework, and in 
doing that homework, the critical question, of course, is: Is 
there any relationship between 6 months or 3 months or 30 days 
and a vulnerability to terrorism? We do not know the answer to 
that. I think that the systems are in place that can begin to 
answer that, but in addition to that, a whole range of other 
very important changes have been made that do move us in the 
right direction, that have been proven to be effective in 
thwarting terrorism. They are not complete. They need to be 
more--they need to be finished. But there is an agenda that is 
moving us in the right direction, and that should serve us as 
the tools to learn and understand whether something like the 6-
month policy in addition would need to be shifted.
    Thank you.
    [The prepared statement of Ms. Meissner appears as a 
submission for the record.]
    Senator Cornyn. Thank you very much.
    Ms. Kephart, we would be glad to hear from you.

STATEMENT OF JANICE L. KEPHART, FORMER STAFF COUNSEL FOR THE 9/
11 COMMISSION, AND SENIOR CONSULTANT, THE INVESTIGATIVE PROJECT 
              ON TERRORISM, MOUNT VERNON, VIRGINIA

    Ms. Kephart. Yes, thank you. Thank you for holding this 
hearing and giving me the opportunity to discuss terrorist 
travel with you today. On a personal note, it is an honor for 
me to be back before the Committee that gave me my start in 
terrorism and border security. It is also an honor to share a 
panel with Commissioner Meissner, who held one of the most 
difficult jobs in this city for over 7 years and did so with 
dignity and dedication.
    I would like to submit my written testimony into the 
record, if I may.
    Chairman Cornyn. Certainly. Both your written statements 
will be made part of the record, without objection.
    Ms. Kephart. Thank you.
    We are all here today because September 11 taught us an 
invaluable lesson: that border security is national security. 
Effective border security is perhaps our best hope of 
preventing another terrorist attack on American soil.
    From the outset, let me make it clear that I share the 
conviction that immigration is a potent asset to our strength 
as a Nation. Achieving full integrity of our border strengthens 
us, facilitating legal immigration of the most talented and 
motivated people in the world, while lowering the risk of entry 
by those who seek to do us harm.
    Foreign terrorists carefully plan their attempts to enter 
the U.S. based on a relatively sophisticated understanding of 
our border system. A CIA analysis described in our staff report 
stated that, ``A body of intelligence indicates that al Qaeda 
and other extremist groups covet the ability to elude lookout 
systems using documents with false identities and devoid of 
travel patterns that will arouse suspicion.''
    The 9/11 Commission border security investigation found 
numerous examples of such planning, several of which I provide 
in my written testimony, and many more of which are provided in 
this book, in our staff report.
    As the Commission staff monograph on terrorist travel 
points out over and over again, the 9/11 terrorists exploited 
vulnerabilities from visa issuance to admission standards at 
our ports of entry, to our immigration benefits adjudication 
system. Let me give you two examples which I believe are still 
relevant today.
    As far as I am aware, critical intelligence on terrorist 
travel indicators is still not being declassified and 
distributed to front-line officers three and a half years after 
9/11. One specific indicator which was present on five 
passports used by three of the 9/11 hijackers would, without a 
doubt, keep al Qaeda terrorists out of our country if 
distributed to consular officers and immigration inspectors. It 
remains classified today.
    Second, tourist visas automatically confer a 6-month length 
of stay which likely exceeds the needs of most tourists and is 
something we certainly need to discuss and vet. By comparison, 
tourists from visa waiver countries receive only 3 months.
    A question I was constantly asked while on the Commission 
was whether my team had come across any evidence of terrorists' 
illegally entering the U.S. While the hijackers chose to 
acquire visas and enter legally, other foreign terrorists have 
entered the U.S. illegally. For example, Abdul Al-Marabh, a 
likely al Qaeda member who told authorities he had often 
crossed back and forth over the Northern border illegally, was 
finally caught in the back of a tractor-trailer crossing the 
Northern border around February 2001. During his time in the 
U.S., he had received five U.S. driver's licenses in 13 months, 
including a commercial driver's license and a permit to haul 
hazardous materials.
    Mahmoud Kourani, a known Hizballah operative now in Federal 
custody on terrorism charges, crossed the Southwest border in a 
car trunk in June 2001. He goes to trial in Detroit in April.
    Political asylum and naturalization are the two immigration 
benefits most rampantly abused by terrorists in my studies. I 
have found 22 separate incidents of indicted or convicted 
terrorists who abused our political asylum system. Nine of 
these terrorists did so after the 1996 revision of our 
immigration laws. Members of Hamas, al Qaeda, and Egyptian and 
Pakistani terror groups have all used claims of political 
asylum to stay longer in the U.S.
    As the Committee knows well, the 9/11 hijackers' use of 
American identification documents has been widely discussed in 
recent months. The hijackers acquired a total of 34 U.S. IDs, 
13 driver's licenses, two of which were duplicates, and 21 USA- 
or State-issued ID cards. The ease with which the 9/11 
hijackers acquired Government-issued IDs highlights the 
importance of verifying identities and immigration status when 
issuing those documents. It is also valuable to emphasize the 
deterrent effect on criminals and terrorists alike if we 
tighten the vetting procedures and security features associated 
with these cards.
    We know that terrorists are creative and adaptable. Yet we 
have the ability to counter them. Our front-line officers are 
talented, and they are eager to do everything they can to 
protect this country. They are our border system's biggest 
asset and our best weapon against terrorist travel. But they 
need better tools--information, resources, and the ability to 
enforce the law better within a departmental structure wholly 
supportive of their mission.
    My written testimony lays out a series of recommendations 
purely for your consideration that address these issues, which 
I believe can make our borders more secure and more efficient 
than ever before.
    Thank you.
    [The prepared statement of Ms. Kephart appears as a 
submission for the record.]
    Chairman Cornyn. Thank you, Ms. Kephart. We will have 5-
minute rounds, and as long as you and members of the Committee 
want to stay here and ask questions, but hopefully we will not 
detain you long.
    Ms. Kephart, in your testimony you talk about the fact that 
terrorist indicators on a passport are sometimes classified and 
in many instances, whether classified or not, are not 
communicated to the people most in need of that information 
when determining whether to issue a visa or not.
    Did you find a valid reason to keep that kind of 
information classified? Or is there a better way that that 
could be handled that gives the required personnel access to 
what they need to make a good decision but at the same time 
maintain the secrecy of the document so that the bad guys 
cannot necessarily know what it is we are looking for?
    Ms. Kephart. Well, I can tell you that we tried very hard 
for our staff report to get the, quote-unquote, terrorist 
indicators and the fraudulent manipulation declassified for the 
staff report so that the public could know. It was very odd to 
me, while I was working on the Commission, that I actually had 
access to more information about terrorists' travel and 
terrorist indicators than our front-line officers did.
    The indicator that I referred to in my testimony, both oral 
and written, is one that is extremely obvious. If you told a 
front-line officer what it is, he could check for it. And I 
think that is probably all I can say about it in open testimony 
here. But in terms of getting that to front-line officers, we 
believed, me and my colleagues, my other four colleagues who 
helped produce the staff report, that it was something that 
could be declassified.
    So I guess I do not really have terms to say what we need 
to do to get it declassified because I think it probably should 
be.
    Chairman Cornyn. Well, of course, we have been talking 
today about people who at least try or at least appear to try 
to come into the country legally but, nevertheless, manipulate 
the process to enter into the country and to do us harm. But I 
think as several others have noted, terrorists could try to 
come in the way that the 9/11 terrorists did using fake 
documents and through ostensibly a legal process, or they can 
try to come in across one of our unprotected borders without 
any pretense at trying to come in legally or the like.
    I continue to be concerned about the fragmentation of 
responsibilities when it comes to both border protection and 
immigration, and I have noted, Ms. Kephart, with interest your 
recommendation that the U.S. Government create a Department of 
Immigration and Border Protection separate from the Department 
of Homeland Security. Could you explain your justification for 
that recommendation, given the fact that we just moved it from 
DOJ to DHS in 2002?
    Ms. Kephart. I understand that is a big one to swallow 
under the current circumstances when we just created a new 
Department of Homeland Security. But the fact of the matter is, 
as Commissioner Meissner--and I would love to hear what she has 
to say about this as well.
    Chairman Cornyn. I am going to give her a chance.
    Ms. Kephart. Our country was based on immigration. We now 
have a situation where border security is considered a national 
priority. What we have had in the past is Commissioners 
dedicated, like Commissioner Meissner, who didn't have direct 
access to the President and did not, even more importantly, 
perhaps, have direct access to the intelligence they needed to 
make good decisions.
    By creating a separate department where you focus wholly on 
immigration and border security, we can have policies created 
by a Secretary who focuses completely on an incredibly complex, 
politically and legally complex set of laws and policies. We 
have right now over 40,000, I believe, employees in 
immigration. That far exceeds at least five departments that 
exist in the Federal Government already. There is enough 
there--it is a big distraction for the Secretary of DHS to deal 
with the very intricate and delicate process of immigration. 
And I think if it was pulled out separately, it would be 
perhaps helpful to our policies and our rules on immigration, 
help us enforce our laws better.
    Chairman Cornyn. Ms. Meissner, I did ask Secretary 
Chertoff, after he was confirmed, what his plans were to 
appoint someone to succeed Asa Hutchinson in the Department of 
Homeland Security, and he advised me that they are looking at 
organizational issues before moving on to that. But do you have 
any reaction or any advice you would like to give either us or 
Secretary Chertoff or reaction to perhaps Ms. Kephart's 
suggestion of the creation of a new Department of Immigration 
and Border Protection?
    Ms. Meissner. I cannot resist saying this is deja vu all 
over again. These issues, you know, have been debated and 
debated.
    If you were making the Government over, you would not have 
it be this way where immigration is concerned. But we are not 
making the Government over. And we have, as you said, gone 
through this enormous shift now just within the last 2 years. I 
think that it would be--I think it is just impractical and 
unwise to think about further upheaval where this kind of a 
massive structural change is concerned.
    That being said, I also believe that there are a set of 
what I think of as second-generation changes that need to be 
made within DHS in the immigration arena in order for things to 
work more effectively. You know, the original idea obviously 
was to separate enforcement and service, and I see now that 
there is discussion about CBP and ICE being reconnected. And I 
think that is probably worth considering because I think one of 
the major problems right now is fragmentation. But I think that 
it is much more important in DHS at this point that there be 
more capability at the department-wide level to deal with 
immigration where policy is concerned. And I think that the 
best--I have made a suggestion in my testimony that the best 
solution I have heard is to establish an Under Secretary for 
Policy office in DHS.
    The Secretary and the Deputy Secretary in DHS just do not 
have department-wide staff capability to do their work. And if 
you take the model at HHS, for instance, that is not such a 
dissimilar agency, of a major Under Secretary for Policy 
position that can advise the Secretary on all of these 
different things, immigration would be one of the key issues in 
that portfolio. There would have to be analysis done, and you 
could deal with issues like this. This B-2 visa issue, for 
instance, is the kind of an issue that is very unlikely to come 
up from the constituent bureaus because they only all have just 
a piece of it. There needs to be overview.
    Chairman Cornyn. Thank you very much.
    Senator Kennedy?
    Senator Kennedy. Thank you very much, and I welcome you to 
our committee, and I thank Doris Meissner for changing her 
schedule to be with us. I appreciate very much all of your 
continued ideas on these issues.
    Let me ask you, on the basic issue on the immigration, we 
have dramatically expanded the resources on the border, yet 
illegal immigration has soared. And we have pushed people, I 
think, further underground since 9/11, and we have wound up 
keeping more migrants here because they fear if they leave, 
they will not be able to get in here. And we are now increasing 
the number of people that are dying out in the deserts, and we 
are in danger of getting these vigilante groups that are 
beginning to say that they are going to come down to our 
border.
    What do you think we need to be doing differently in order 
to get a better handle on the undocumented immigration? Is 
enforcement by itself a viable option? What else should we be 
thinking about?
    Ms. Meissner. Well, I was pleased to hear the Chairman in 
his opening statement use the terminology that is becoming, I 
think, very well accepted, and that is that the immigration 
system is broken. I mean, you are pointing to one set of 
examples, but there are many, many examples. And so I am very, 
very pleased that you have held this hearing and that you are 
seeing this hearing as the beginning of a set of discussions, 
because we have to have a really focused public debate, and it 
has to happen in the Congress on how to fix it. How to fix it 
has to do, obviously, with recognizing what the reality is in 
the country today, and that is that we are a country that is 
aging. We are not from our own population creating a number of 
workers that our job market needs. We are dealing with a border 
enforcement structure that has cost us billions of dollars.
    I feel very close to that border enforcement activity. I 
believe strongly in doing border enforcement. But you cannot 
deal with the immigration system and controls on the 
immigration system just at the Southwest border or, actually, 
just at our borders all around. I mean, I agree with Janice 
that border enforcement is extraordinarily important, but if 
there is always the pressure and the availability of a job in 
this country for people who are able to get past the border, no 
matter what you do at the border, it is not going to be 
sufficient.
    I will be interested in your interior enforcement hearings. 
Interior enforcement is very important, but I would submit at 
this point that it is not possible to do it effectively with 
our current laws.
    So coming up with an enforcement regime that is strong, 
effective border enforcement but backed up by accountability 
within the country, where work is concerned, where documents 
are concerned, and then, of course, dealing with the issue of a 
large population of people here who do not have legal status, 
whom we need as demonstrated by the market, but who are right 
now absolutely, arguably, a security weakness because it is a 
large number and we do not know who they are. And then, 
finally, the question of the labor market for the future. How 
do we regulate the flows of people coming to the country for a 
variety of reasons that are in our National interest? It is a 
very, very big portfolio, but it has to be addressed.
    Senator Kennedy. Well, I want to thank you for your very 
thoughtful response, and we will be continuing to draw on your 
experience as we go along with these hearings.
    Thank you, Mr. Chairman.
    Chairman Cornyn. Senator Feinstein?
    Senator Feinstein. Thanks very much.
    Doris, it is great to see you again.
    Ms. Meissner. Same here.
    Senator Feinstein. You look wonderful. A little grayer than 
I remember you, but I think that happens to all of us.
    Ms. Meissner. So it goes.
    Senator Feinstein. And, Janice, it is great to see you, 
too, but particularly Doris because I have served on the 
Immigration Subcommittee now for 13 years, and you are a big 
part of it. So it is wonderful to see you again.
    Ms. Meissner. Thank you. Very nice to see you, too.
    Senator Feinstein. I have been perusing the staff report 
here, and I wanted to ask you about a part of it because I 
think there is a tendency for us to throw up our hands and say 
we really cannot do anything and that, oh, you know, this is 
America and we all believe in the freedom and all of this.
    And yet when you read this report and you see how 
sophisticated al Qaeda was--and I want to give you one example, 
and that is their use of document travel facilitators, Abu 
Zubaida, Riyadh, the African facilitator, how they came 
together, how they are able to take each terrorist and work out 
a suitable way of entry for that individual.
    I went over each of the terrorists. Some of them married to 
come in. They used all kinds of different visa entries. But it 
was so smart and so studied.
    And I want to just read a part of this to you and ask you 
to comment. ``al Qaeda relied heavily on a small cadre of 
operatives and their assistance to facilitate travel for their 
network. Chief among them were Abu Zubadyah, a facilitator we 
will call the African facilitator in Riyadh. Broadly speaking, 
a terrorist travel facilitator assisted operatives in obtaining 
fraudulent documents, of which the world abounds; arranging 
visas, real or fake; making airline reservations, purchasing 
airline tickets, arranging lodging and ground transportation, 
and taking care of any other aspect of travel in which his 
expertise or contacts were needed.'' And then they profile each 
one of these men and how they got together and how they worked 
and the amount of money. You know, one facilitated the flow of 
funds to al Qaeda, allegedly passing half a million dollars in 
late 2001 from Saudi donors to extremists and their families in 
Pakistan.
    Then they relied on outsiders. ``Document vendors provided 
al Qaeda with a wide range of bogus and genuine documents and 
were valued for their forgery skills. Through these vendors, al 
Qaeda operatives had access to an impressive range of 
fraudulent travel, identification, and other documents, 
including passports from countries in almost every region of 
the world--travel caches, blank visas, foils, stamps, seals, 
laminates, and other materials.'' And it goes on and on and on.
    And so, often people say, you know, we are trying to do 
things and there is no real need to do them. I wish I believed 
that. I believe there is every need to do them and every need 
to look at our programs, and maybe even cancel some and go into 
a strict program. And, Doris, I wish I agreed with you that the 
border cannot be enforced. I actually believe it can. You were 
here when we--when you put forward, I think, Operation 
Gatekeeper, and it has worked. The problem is it has moved 
people from the San Diego, California, border into the Arizona-
Texas border. But where it existed, it worked--works still.
    My question is this: When you see the sophistication of the 
terrorist movement of today, the facilitators, the outside 
travel vendors, how they really look at all of the various 
aspects, wouldn't you say that the visa waiver program offers 
them an enormous opportunity, when you look at the numbers of 
stolen fraud-proof passports from visa waiver countries in the 
thousands, that this is the way they can easily come in, get 
lost, and remain here?
    Ms. Meissner. Well, first, let me be absolutely clear about 
border enforcement. I believe in border enforcement. I think 
that we must do border enforcement, and we do know how to do 
border enforcement. I just don't think it can be the only 
thing, and that is essentially what we have done, is we have--
and until 9/11, we were not serious even about ports of entry. 
We were serious only about the land border between the United 
States and Mexico.
    So what I am saying where border enforcement is concerned 
is don't rely solely on border enforcement in order to combat 
terrorism, or illegal immigration, for that matter. There need 
to be a series of things in place because, as the 9/11 
Commission work clearly showed, wherever the weaknesses are, it 
is the weaknesses that will be exploited. So the issue is to 
put a whole set of things into place, and even to have some 
redundancies.
    You know, I want to return the compliment to Janice. She 
worked brilliantly on the staff of the 9/11 Commission. We 
worked together for many hours of deposition and debriefing, et 
cetera, in order to try to figure out really, you know, what 
would be the proper approaches, and I think the 9/11 Commission 
report is very, very, thoughtful. And what----
    Senator Feinstein. If you could change one thing, both of 
you, what would it be?
    Ms. Meissner. You mean where the border is concerned? If I 
could change one thing where the border is concerned, what it 
would be is accountability on the part of our interior 
enforcement and primarily accountability with employers, a way 
to verify who is working and a way to follow up to be sure that 
that employment relationship is according to law, because that 
is what--the weakness there and the need for those people in 
our labor market without being able to regulate it effectively 
is what is putting undue pressure on all of these other things, 
where we are actually doing quite well.
    Senator Feinstein. Janice, if you could change one thing, 
what would it be?
    Ms. Kephart. Senator, I have four pages of recommendations. 
Let me pick something.
    Senator Feinstein. No, pick the key thing that you think 
would make a difference.
    Ms. Kephart. I think that although we are talking a very 
good talk right now about border security being national 
security, we have it very buried in DHS right now.
    My second choice would be what Commissioner Meissner 
stated, which would be the Under Secretary of Policy position 
at DHS. It is something we talked about amongst our staff while 
I was at the Commission, and it is something that Secretary 
Ridge was considering when we interviewed him. I don't know if 
Secretary Chertoff is considering the same. But we need 
homogeny in the policy process. We need homogeny as we create 
better rules, standard operating procedures, electronic 
libraries of fraudulent documents at our ports of entry, so our 
programs are consistent.
    We have, for example, right now--and Interpol has created 
at the cost of millions of dollars a huge database of lost and 
stolen passports, Senator. That is available to us, but only in 
secondary inspections right now. It is not available----
    Senator Feinstein. What does that mean?
    Ms. Kephart. Well, what that means is that when you have 
your immigration inspector come in and that passport gets 
swiped, the number on that passport is not being automatically 
queried into Interpol's lost and stolen passport database. They 
have dozens of countries in it now, millions of documents in 
it, and if we had it swiped, then it would not be up to the 
immigration inspector trying to figure out if that document has 
a problem. He would automatically know something once that 
document was swiped.
    What you have, as my understanding is, at DHS in Science 
and Technology--and maybe this has changed in recent months--is 
that they were going and creating their own bilateral 
agreements with visa waiver countries to get their lost and 
stolen passport database. On the database created here in the 
U.S., while we are also cooperating with Interpol, I think that 
is a duplication of resources perhaps. We have so many other 
needs. We have interior enforcement still at 2,000. We have 
Border Patrol needs that are very strong. So, you know, there 
are discrete things that we can do at our ports of entry, 
programmatic, cost-effective. Some of them could just be rule 
changes that I think we can do sort of across the board. But I 
think the overall problem is that we have got a situation where 
people are talking about deck chairs at ICE and CBP. We are not 
talking about the ship it is in.
    Senator Feinstein. Okay. Let me ask this question: When we 
have got--I guess it is US-VISIT set up on entry and exit----
    Ms. Kephart. Not on exit, ma'am.
    Senator Feinstein. No, no. When we get it set up.
    Ms. Kephart. Oh, when we do. I am sorry.
    Senator Feinstein. Now, as I understand it, it is not set 
up on exit and it is partially set up on entry. But assuming 
they can get it, what kind of security do you think that will 
provide?
    Ms. Kephart. Do you want to start?
    Ms. Meissner. It will provide information. It will provide 
very important information, which will allow us to do what in 
the 9/11 Commission is talked about as analysis of trends and 
patterns.
    Senator Feinstein. Should that be our goal to see that get 
done?
    Ms. Meissner. That is critical. Absolutely. In order to 
know what is happening, you have to have that. But that is not 
enough. What nobody has figured out--and it was alluded to by 
the earlier witnesses--is what do you do when you know that 
certain people have not left, because having the information is 
one thing, being able to act on the information is another 
thing. Having the information for analytic purposes is 
extremely important. That is feedback that we need. It is also 
a basis for then, you know, the people that have not left, you 
run them first. The most important thing you would do is run 
them against your terrorist watchlist and so on.
    Senator Feinstein. But, Doris, if we cut down the entry 
period--Senator Kennedy asked the question, I think Senator 
Cornyn dealt with it, I had it. I did not do it because they 
did it, that if you want to come in for 2 weeks you get a 6-
month visa.
    Ms. Meissner. Unclear. Until we look at that data and find 
out how long most of those people actually stay, it is entirely 
possible that most of them are only staying 2 or 3 weeks. We do 
not even know.
    But as I said, if you start to----
    Senator Feinstein. Wouldn't it be common sense--wouldn't it 
be common sense to have a 30-day visa or 3-week visa?
    Ms. Meissner. It is easy to say that it is common sense, 
but when you see all of the circumstances of the almost 10 
million people that have that visa and have to deal with each 
one of them person by person at a port of entry in order to 
decide should it be 2 weeks, should it be 1 month, should it be 
6 weeks, I am not sure that is a very good use of resources. 
The length of time in the country may not be nearly as 
important as other characteristics about the people.
    Senator Feinstein. Well, it is like if you go to China. You 
get a visa, and it is for a specific period of time. There are 
very few--they give some multiple-entry visas.
    Ms. Meissner. Right.
    Senator Feinstein. But you get a 30-day visa. You know, I 
have visas, 5 days. I do not feel insulted----
    Ms. Meissner. There is no question we--there is no question 
we could do it. Whether it would make any difference at all, we 
don't know.
    Senator Feinstein. But it is not done at the port of entry.
    Ms. Meissner. Yes, it is.
    Senator Feinstein. It is done by the--no, when I get a 
Chinese or another visa from another country, the visa comes to 
me from them like that.
    Ms. Meissner. That is the way they originally issued it, 
but our system is one where, as you know, whatever is 
originally issued by the consulate is also then independently 
validated by the port of entry inspector.
    Senator Feinstein. Oh, I see. I see.
    Ms. Meissner. You have a slightly different statutory set-
up.
    Senator Feinstein. Maybe we need to change that process. 
Why does it have to go to the port of entry?
    Ms. Meissner. Because that is where the people enter, and 
there can be----
    Senator Feinstein. But don't you have--you have your visa 
when you come in.
    Ms. Meissner. Right.
    Senator Feinstein. And it says the length of time on it. 
Can't it just come from our offices abroad?
    Ms. Meissner. It could. It could, but, you know, you would 
have to change the statutes for that.
    Senator Feinstein. I think that is something to think 
about.
    Ms. Meissner. Well, actually, that is an area of redundancy 
that is probably in our favor.
    Senator Feinstein. Why? We don't----
    Ms. Meissner. As a country. Well, because people apply for 
the visa now, they might come a month from now. In the 
meanwhile, you can get information, something may have 
happened. You want them checked at the port of entry. You don't 
want to just be a rubber stamp.
    Senator Feinstein. Well, we need to talk about this because 
I think I have got a misunderstanding or something. But, 
anyway, thank you very much.
    Ms. Meissner. Anyway, I am not against changing it. I am 
simply saying we should know whether there is a connection, and 
we don't know whether there is a connection between length of 
stay and terrorism or illegal stay. We just don't.
    Senator Feinstein. Well, you can look at the terrorists, 
and you can make some----
    Ms. Meissner. No, you can't, because they were, by and--
they were within the bounds.
    Senator Feinstein. Yes, but they had visas for extended 
periods of time, too.
    Ms. Meissner. That was not necessarily what was connected 
to their terrorism.
    Senator Feinstein. Well, the question comes----
    Ms. Meissner. They could be independent----
    Senator Feinstein. Why not--well, all right. You know, if 
you are going to give somebody a visa and let them come in for 
6 months and you know very little about them, you might as well 
give it to them practically forever, because they can come in, 
they can have time, they open the bank accounts, they get the 
fraudulent driver's license, the fraudulent Social Security 
number, all of which takes time. They open their bank accounts. 
They get their banking scheduled. They become respectable in 
the neighborhood. And then, bing, you turn your back and you 
are hit.
    I am one that believes that some of that planning is 
probably going on today. And I think the longer the visa, it 
gives you the time to do all these things. That is my only 
point.
    Ms. Meissner. That could very well be possible. As I say, 
we really don't know.
    Chairman Cornyn. Ms. Kephart, would you like to comment on 
this?
    Ms. Kephart. I sure would.
    Chairman Cornyn. Do you have any different views?
    Ms. Kephart. Yes, please. First, the value of US-VISIT, 
Senator Feinstein, is, I believe, as I have looked at it 
closely, it is to integrate the databases and provide biometric 
information at the border so that our front-line officers can 
make better decisions when they are seeking to admit folks.
    It also does something else which the other staff and I on 
the 9/11 Commission thought was extremely important, and that 
was creating terrorist--the beginning of creating of terrorist 
travel histories. You can begin, as we begin to integrate our 
databases, and something we strongly recommended to the 
Commissioners, was that we need to have an integrated knowledge 
of our travelers. We need to create histories for them. It 
starts at the consular office if they are asking for a visa. If 
they are visa-waiver, it starts at the ports of entry. 
Therefore, if they come and they ask for more favors from the 
U.S. Government in terms of immigration, we have that in the 
US-VISIT and we can return to it as they seek immigration 
benefits. We can cut out a lot of the issues with fraud from 
that vantage point, and I think US-VISIT is probably the best 
and strongest thing we have done as a Government.
    The second thing in terms of the issues brought up, that 
you brought up, Senator, was the length of stay. One thing that 
we can do that would perhaps be helpful for consideration would 
be simply initially, as we are vetting the process and figuring 
out exactly what the best solution would be for the length of 
stay in the U.S., would be to simply match those who are 
getting visas from visa countries to the visa waiver length of 
stay. The visa waiver length of stay when you get here is 3 
months, period. You have got to go at the end. There is no 
discretion there. There is also really--even though I heard DHS 
folks say differently, there is really no discretion on the 6-
month length of stay for tourists from visa countries either.
    When I interviewed 26 of 38----
    Senator Feinstein. What do you mean when you say there is 
no discretion? What does that mean?
    Ms. Kephart. The admitting officer, your inspector who 
looks at your passport and admits you, really does not have the 
ability to say you get any less time than 6 months. He has to 
actually go to his supervisor, which he is not going to do when 
he has got, you know, 45 second to a minute to adjudicate 
somebody, go to his supervisor and get approval to give less. 
It is not encouraged. It was a customer-oriented system before, 
on the front lines. It is becoming, from what I understand, a 
customer-oriented system again. And so, therefore, we could 
keep that discretion away and just simply match it to visa 
waiver. Visa waiver folks are supposed to be our better 
friends, anyway. You know, people from visa-issuing countries, 
we perhaps need to match that. That could be a simple first 
solution, perhaps.
    The other thing is that we do know that terrorists abuse 
the length of stay. It is something that was established in the 
staff report. They do abuse it. Mohammed Atta, after coming in 
twice in the spring of 2000 and then again in January 2001, 
knew very well that he would get 6 months if he claimed he had 
visitor/tourist needs here. It became clear. And believe me, it 
only came clear to us as staff after I actually had put 
together the chronology in here, we put together the consular 
officer activity and the immigration inspector activity, the 
actual applications for visa and the entries. And we realized 
that, yes, indeed, these people had a travel operation. The 
terrorists had a terrorist travel operation. That is where our 
title comes from. But it took us 14 months to get there.
    And so Atta knew what he was doing when he brought those 
folks in the spring and summer of 2001. He knew he had 6 months 
for them, and he used it. And so I think we do have evidence, 
and it is not guesswork at this point.
    Chairman Cornyn. Ms. Kephart, the staff report notes that 
inspectors receive no behavioral science training and no 
cultural training and no regularly updated training. You also 
noted that the 9/11 hijackers encountered U.S. border security 
68 times.
    Ms. Kephart. Yes.
    Chairman Cornyn. What role do you think these deficiencies 
played in failing to deter the hijackers from entering the 
country?
    Ms. Kephart. Well, I cannot say what it deterred, but I can 
say where it helped. And where it helped was the situation of 
the 20th hijacker. The 20th hijacker was Mohammed Al Kahtani. 
On August 4, 2001, he sought entry into the U.S. He was the 
only hijacker to try to enter without a buddy. That might have 
made his situation particularly worse. But he was referred to 
secondary. He didn't speak any English, and he appeared 
arrogant to the inspector. Fortunately, the primary inspector 
had experience and so she noted these small anomalies.
    He went into secondary and, perhaps, we shall say, by the 
grace of God, encountered somebody who had been trained in 
behavioral science in the Army. And so this individual knew 
what he was doing, and he spent about an hour and a half with 
Kahtani, found grounds of intending immigrant to deny him 
entry, would have sought expedited removal, was supported by 
his superiors because he was a well-respected inspector.
    But his knowledge and understanding of behavior allowed us 
to keep out the 20th hijacker--one of the 20th hijackers. There 
were others who were trying to get in as well. But there is a 
positive spin, perhaps, on what we can do and the value of 
behavior.
    The others, there was a whole range of immigration 
inspector experience amongst the others I interviewed. Some had 
been immigration inspectors for 15 years. Others had been 
immigration inspectors for a year. You had immigration 
inspectors who were 15 years in the making being actually more 
lenient, not paying attention to the behavioral cues as much as 
the younger ones who were newer and fresh.
    So behavioral cues I think are important. They are 
definitely hard to teach, but I think it is something that we 
need to pay attention to.
    Chairman Cornyn. In your opening statement, you mentioned 
Director Mueller's statements and Admiral Loy's in your written 
testimony. Based on your experience while working for the 9/11 
Commission, how has the training for those most likely to 
initially encounter special interest aliens improved since 9/
11?
    Ms. Kephart. You know, sir, I don't have the answer to that 
because I am no longer privy to what is going on inside DHS. I 
had lovely access while on the Commission. I have no access 
now. So I have to deflect that question because I simply cannot 
answer it.
    Chairman Cornyn. We will follow up with someone else who 
still has access to that information.
    Ms. Meissner and Ms. Kephart, thank you very much for 
participating in this. I think we have all--we have certainly 
benefited from this exchange, and on behalf of both 
Subcommittees, I would like to thank all of the witnesses for 
their time and their testimony.
    We will leave the record open until 5:00 p.m. next Monday, 
March 21, for members to submit any additional documents into 
the record and ask questions in writing of any of the 
panelists. Right now I have a statement from Senator Leahy and 
from the Mexican American Legal Defense and Education Fund, 
which will be made part of the record, without objection. But 
if there are others between now and then, the deadline is March 
21st at 5:00 p.m. next Monday.
    With that, the hearing is adjourned. Thank you so much.
    [Whereupon, at 4:43 p.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]

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