[Senate Hearing 110-674]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-674
 
   THE VISA WAIVER PROGRAM: MITIGATING RISKS TO ENSURE SAFETY OF ALL 
                               AMERICANS

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

                                HEARING

                               before the

                       SUBCOMMITTEE ON TERRORISM,
                    TECHNOLOGY AND HOMELAND SECURITY

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 24, 2008

                               __________

                          Serial No. J-110-121

                               __________

         Printed for the use of the Committee on the Judiciary


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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
           Stephanie A. Middleton, Republican Staff Director
              Nicholas A. Rossi, Republican Chief Counsel
                                 ------                                

      Subcommittee on Terrorism, Technology and Homeland Security

                 DIANNE FEINSTEIN, California, Chairman
EDWARD M. KENNEDY, Massachusetts     JON KYL, Arizona
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         JOHN CORNYN, Texas
RICHARD J. DURBIN, Illinois          SAM BROWNBACK, Kansas
BENJAMIN L. CARDIN, Maryland         TOM COBURN, Oklahoma
                Jennifer Duck, Democratic Chief Counsel
               Stephen Higgins, Republican Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................     1
    prepared statement...........................................    49
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........     3

                               WITNESSES

Baker, Stewart, Assistant Secretary, Office of Policy, Department 
  of Homeland Security, Washington, D.C..........................     7
Ford, Jess T., Director, International Affairs and Trade, 
  Government Accountability Office, Washington, D.C..............     5

                         QUESTIONS AND ANSWERS

Responses of Stewart Baker to questions submitted by Senators 
  Kennedy and Hatch..............................................    27
Responses of Jess T. Ford to questions submitted by Senator 
  Feinstein......................................................    41

                       SUBMISSIONS FOR THE RECORD

Baker, Stewart, Assistant Secretary, Office of Policy, Department 
  of Homeland Security, Washington, D.C., statement..............    43
Ford, Jess T., Director, International Affairs and Trade, U.S. 
  Government Accountability Office, Washington, D.C., statement 
  and attachment.................................................    51


   THE VISA WAIVER PROGRAM: MITIGATING RISKS TO ENSURE SAFETY OF ALL 
                               AMERICANS

                              ----------                              


                     WEDNESDAY, SEPTEMBER 24, 2008

                                       U.S. Senate,
                     Subcommittee on Terrorism, Technology,
                                     and Homeland Security,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to notice, at 2:32 p.m., in 
room SH-216, Hart Senate Office Building, Hon. Dianne 
Feinstein, Chairman of the Subcommittee, presiding.
    Present: Senators Feinstein and Kyl.

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

    Chairman Feinstein. I am going to call the hearing to 
order.
    This afternoon, we are here once again to look at what is 
being done or not done to ensure the safety of the Visa Waiver 
Program. I have long expressed my concern that the Visa Waiver 
Program is the soft underbelly of this Nation's immigration 
system because it offers an opportunity for people to come into 
the United States to do us grievous injury without knowledge. 
Travelers from visa waiver countries not only bypass the 
interview and individualized security screening process, but as 
the GAO report confirms, they are also lost once they arrive in 
the United States.
    This problem is exasperated because DHS is only checking if 
and when individuals depart at our airports, so if you have 16 
million people coming into the country in a given year and you 
only check those who leave, you never know how many came in and 
disappeared.
    I have held multiple hearings over several years, and time 
and time again, I repeat my frustrations, and yet there seems 
to be no improvement, no change in how the Department 
implements this program. Current law requires that before DHS 
admits any new countries into the Visa Waiver Program, it must: 
one, put in place a fully operational electronic travel 
authorization system for all travelers from visa waiver 
countries; and, two, verify the departure of 97 percent of 
foreign travelers leaving U.S. airports.
    Department of Homeland Security measures just 97 percent of 
who leaves, not who comes in.
    DHS states that they will have these requirements met prior 
to admitting new countries into the program, but this is only 
true because of their limited interpretation of the statutory 
requirements.
    However, the GAO report found that the Department of 
Homeland Security has not done the groundwork to prepare the 
embassies, travel industry, and travelers to make electronic 
travel fully operational.
    The GAO report also reaffirmed that DHS is not taking into 
account countries' overstay rates--that is when they come in, 
they say they are here for a limited period of time, and they 
overstay it--in the air exit system. DHS continues to maintain 
that certification of an air exit system is fulfilled by simply 
tracking 97 percent of individuals who exit through U.S. 
airports, not whether 97 percent of individuals who entered at 
airports actually left.
    In the meantime, the GAO report shows that the 
administration is moving full steam ahead in working to bring 
in as many as 8 to 10 new countries by the end of this year. 
And this chart shows you the 10 countries. You see only in one 
case has the State Department (1) officially nominated the 
country for entry into the Visa Waiver Program. (2) that 
country is Greece. And you see, (3) the Department of Homeland 
Security is moving forward with the other countries--Malta, 
Estonia, South Korea, Czech Republic, Hungary, Latvia, 
Slovakia, Lithuania--without this State Department nomination.
    I have a hard time understanding why DHS is moving so 
quickly to add new countries to the program without properly 
mitigating security risks. These risks are particularly 
apparent when we look at the statistics on the number of 
fraudulent and stolen passports and other international 
documents. And I have been through this before, but I want to 
provide an update.
    Between January 2002 and June 2004, 28 foreign governments, 
including visa waiver countries, reported 56,943 stolen blank 
foreign passports to the State Department. And just this 
summer, a security van in London was hijacked, resulting in the 
loss of 3,000 blank British passports and visas that were 
destined for overseas embassies.
    DHS's own Inspector General, Clark Ervin, has testified 
that ``the lost and stolen passport problem is the greatest 
security problem associated with the Visa Waiver Program. Our 
country is vulnerable because gaps in our treatment of lost and 
stolen passports remain.''
    Radicalism and homegrown terrorism in Europe is growing, 
and we know that al Qaeda is looking to exploit the Visa Waiver 
Program. But instead of acknowledging the threat this poses to 
the American people, the administration is working to admit new 
countries even with higher visa refusal rates. A visa refusal 
occurs when the consular officer believes that that individual 
is not going to return back to their country. So if you have a 
high visa refusal rate as a country, it means that a 
substantial proportion of the people simply are not going to 
come back. They are going to overstay their visa, which is a 
temporary visa, and remain in the United States.
    Secretary Chertoff himself has acknowledged the loophole 
that the Visa Waiver Program leaves open for those who wish to 
do us harm. Just this year he stated that, ``We have a Visa 
Waiver Program which allows most Europeans who come to be 
tourists to come without visas. This means that the first time 
we encounter them is when they arrive in the United States, and 
that creates a very small window of opportunity to check this 
out.''
    Now, I can tell you from an intelligence point of view 
that, reportedly, al Qaeda is looking for Europeans and Asians, 
not necessarily Middle Easterners, to send to this country on 
various missions. The Visa Waiver Program becomes a program to 
exploit, and it has been exploited. That is how Moussaoui got 
in the country. That is how others get in the country.
    I find it ironic that the Department of Homeland Security 
whose number one goal is to ``protect the Nation from dangerous 
people'' is instead expediting the expansion of a program that 
we know is exploited by dangerous people.
    The Visa Waiver Program leaves open both a major gap in our 
domestic security and a way to exploit our immigration laws. So 
I am very committed to do whatever I can about it. The 
Strengthening the Visa Waiver Program to Secure America Act is 
a bill that I am looking at introducing, and I look forward to 
working with my Ranking Member, hopefully, on this bill.
    I did want to point out specific comments that the GAO 
found. I want to really compliment the GAO witness for his 
work. As I said, he may be bloodied but he is unbowed, and I 
thank you for your very honest appraisal of this. And in our 
Q&A I hope we can go through some of your findings as well.
    [The prepared statement of Senator Feinstein appears as a 
submission for the record.]
    I would like now to recognize someone I have worked with--
is it 12 years or 14 years? I could not remember.
    Senator Kyl. I think we are on number 13 or 14 now.
    Chairman Feinstein. And either Senator Kyl has been the 
Chairman or I have been the Chairman.

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

    Senator Kyl. Thank you, Madam Chairman. But either way, I 
know we can both agree that it has been great to work with each 
other because we have exactly the same goals and frequently the 
same ideas about how to achieve those goals. And in this case, 
I think that is true. I have reviewed a draft of the 
legislation that Senator Feinstein has talked about and find it 
to be very good, and I do want to work with you on it. I think 
it is well worth introducing.
    I have also, by the way, spoken with at least one of our 
witnesses today and know that the administration shares the 
same goals. And while there may be some different ideas about 
how to achieve them, this is one of those cases where working 
together the two branches of Government I think can work 
effectively.
    I do want to thank you for calling this hearing in 
particular because we have the report to review as well as 
hearing about the progress that the administration is making on 
the ancillary issues related to the Visa Waiver Program. As we 
all know, it facilitates trade and travel for the U.S. and 27 
of our allies. It allows millions of people to visit the United 
States each year. But by allowing program participants to 
travel to the U.S. without first being interviewed by consular 
offices, the Visa Waiver Program can inadvertently make it easy 
for individuals who would do harm to our country to get here. 
And for that reason, since the beginning of the program, 
Congress has required that minimum standards be met before any 
new country is admitted to the program.
    In the 9/11 Commission Act, Congress awarded the DHS and 
its partner agencies the discretion to waive some of the 
minimum standards when admitting new countries to the program. 
In that legislation, to ensure that expansion of the program 
did not compromise the safety and the security of the American 
people, Congress also set benchmarks that have to be met before 
DHS can exercise its waiver authority. We will hopefully hear 
today on whether DHS has met the benchmarks, but it appears 
that DHS might potentially use its waiver authority to admit 
countries whose visa refusal rates fall between 3 and 30 
percent, and perhaps even countries that have rates above 10 
percent. We will want to explore that today.
    I am also hoping that at today's hearing, the purpose of 
which is to review the GAO's new report, the testimony will 
shed light on the continued problems as well as advances in the 
Visa Waiver Program and look constructively at how better to 
ensure its validity and security.
    Our office and Senator Feinstein's office--and Senator 
Sessions's office, I might add--have had a number of 
conversations with DHS about whether the agency is meeting the 
letter of the law as it pertains to either the exit or the 
Electronic System for Travel Authorization, or ESTA, 
requirements established in the visa waiver portion of the 9/11 
Act. And I think we will get answers today about that.
    We also want to explore whether it is a good idea and 
whether the 9/11 law intended to allow DHS to admit countries 
through a waiver with visa refusal rates above 10 percent. 
Regarding the exit requirements, I believe that Congress 
intended that DHS record the departure of every alien 
participating in the Visa Waiver Program, not just those who 
are checking in for a flight to exit the U.S. But I recognize 
that we may not have achieved that goal in the exact wording 
that we passed.
    I also believe the Electronic System for Travel 
Authorization should be up and running in all countries that 
currently participate in the Visa Waiver Program before any 
waiver or expansion of the program is considered.
    I am hopeful that DHS can provide assurances it will meet 
the aforementioned benchmarks, and in the meantime, as I said, 
I look forward to working with Senator Feinstein on legislation 
that will help ensure that we continue to provide important 
trade and travel benefits at the same time that we do not 
weaken our national security enforcement capabilities.
    Again, Senator Feinstein, thank you for calling the hearing 
today. I know we both look forward to the testimony of the 
witnesses.
    Chairman Feinstein. Thank you very much, Senator Kyl. And 
as you well know, I too appreciate working with you very much.
    I will introduce the two witnesses. The first is Jess Ford, 
the Director of International Affairs and Trade. Mr. Ford 
joined the Government Accountability Office in 1973 and is 
currently Director of International Affairs and Trade. He has 
an extensive background in the area of national security and 
international affairs on issues related to trade, foreign 
assistance, and foreign policy. He has managed GAO audits of 
the Agency for International Development, the State Department, 
and the Department of Defense. In January 1994, he was selected 
into GAO's Senior Executive Service. Mr. Ford has received 
numerous awards throughout his tenure at GAO, including the 
Meritorious Service Award and the Distinguished Service Award.
    And I will introduce Mr. Baker at this time, if I might. He 
is the Assistant Secretary for Policy of the Policy Directorate 
in the Department of Homeland Security. His office is 
responsible for crafting and implementing policies, planning, 
and programs designed to strengthen homeland security. Prior to 
assuming this position, he served as General Counsel of the 
Commission on the Intelligence Capabilities of the United 
States Regarding Weapons of Mass Destruction from 2004 to 2005; 
General Counsel of the National Security Agency, the NSA; and 
Deputy General Counsel of the Department of Education. Mr. 
Baker has also worked extensively outside of Government 
service. Mr. Ford, since I asked you to perform this GAO 
report, would you begin by giving this Subcommittee an analysis 
of your findings, please?

STATEMENT OF JESS T. FORD, DIRECTOR, INTERNATIONAL AFFAIRS AND 
   TRADE, GOVERNMENT ACCOUNTABILITY OFFICE, WASHINGTON, D.C.

    Mr. Ford. I would be happy to. Chairman Feinstein, Senator 
Kyl, members of the Subcommittee, I am pleased to be here today 
to discuss our recent report on the Department of Homeland 
Security's oversight of the Visa Waiver Program and executive 
branch plans to expand the program by the end of this calendar 
year, by the end of 2008.
    The Visa Waiver Program enables citizens of 27 
participating countries to travel to the United States for 
tourism or business for 90 days or less without first having to 
obtain a visa from a U.S. embassy or consulate overseas. The 
program has many benefits. However, the program also poses 
inherent security, law enforcement, and illegal immigration 
risks to the United States.
    Effective oversight of the Visa Waiver Program is essential 
to finding the right balance between facilitating legitimate 
travel and screening for potential terrorists, criminals, and 
others who may pose a law enforcement or illegal immigration 
risk to the United States.
    The executive branch aims to expand the Visa Waiver Program 
to countries in Central and Eastern Europe and to South Korea. 
Some of these countries are U.S. partners in the war in Iraq 
and have high expectations that they will be able to join the 
program due to their close economic, political, and military 
ties to the United States.
    In August of 2007, Congress passed the 9/11 Act, which 
allows DHS to consider admitting countries that otherwise meet 
the programs requirements but who have refusal rates between 3 
and 10 percent if the countries meet certain conditions, such 
as cooperating with the United States on counterterrorism 
initiatives. Previously, only countries with refusal rates 
below 3 percent in the prior fiscal year qualified to be 
considered for admission.
    Before DHS can exercise this new authority, the 9/11 Act 
requires the Department complete certain actions aimed to 
enhance the security of the program. The executive branch is 
moving aggressively to expand the Visa Waiver Program by the 
end of 2008. But in doing so, DHS has not followed a clearly 
transparent process. The Department did not follow its own 
November 2007 standing operating procedures which set forth key 
milestones that DHS and aspiring countries must meet before 
additional countries are admitted to the program. As a result, 
U.S. embassy officials, State and Justice officials, and 
several aspiring countries told us that it had been difficult 
for them to explain the expansion process to their foreign 
counterparts and manage their expectations about when these 
countries may be admitted under the Visa Waiver Program.
    State officials said it was difficult to explain to 
countries with fiscal year 2007 refusal rates below 10 percent, 
such as Croatia, Israel, and Taiwan, why DHS is not negotiating 
with them. DHS, however, is negotiating with several countries 
that have fiscal year 2007 visa refusal rates above 10 percent, 
including Hungary, Latvia, Lithuania, and Slovakia, with the 
expectation that the fiscal year 2008 rates will fall below 
this ceiling.
    Nevertheless, DHS has achieved a number of security 
enhancements to the Visa Waiver Program during the expansion 
negotiations. DHS has secured commitments from several current 
and aspiring countries to improve the watchlist information 
that it is sharing with the United States. In addition, DHS has 
received commitments from aspiring countries to report on lost 
and stolen passports within strict time limits. And DHS has 
also implemented many of our prior recommendations from our 
2006 report to strengthen the oversight of the program.
    However, DHS has not fully developed the tools to assess 
and mitigate the risks to the Visa Waiver Program. In 
particular, DHS has not yet met two key certification 
requirements in the 9/11 Act that would allow DHS to consider 
admitting new countries into the program with refusal rates 
between 3 and 10 percent.
    First, DHS must certify that it can verify the departure of 
not less than 97 percent of foreign nationals who exit the 
United States from U.S. airports. In February of 2008, we 
testified that DHS's proposed plan to meet this provision will 
not demonstrate improvements in the air exit system because the 
plan does not account for data for those who remain in the 
country beyond their authorized stays. To date, DHS has not 
indicated to us how it intends to implement this provision or 
what options it is considering.
    DHS must also certify that the Electronic System for Travel 
Authorization, ESTA, for screening visa waiver travelers in 
advance of their travel is fully operational. DHS has not yet 
announced when it plans to make this certification. However, 
ESTA became available on a voluntary basis on August 1st of 
this year, and DHS anticipates that ESTA authorizations will be 
required for all visa waiver travelers by January 12th of 2009.
    We identified several challenges in implementing ESTA, such 
as adequately informing the public and the travel industry, 
working with the airlines to help passengers comply with ESTA 
requirements, developing a user-friendly system, and working 
with the State Department to potentially mitigate risks of 
additional costs to the State Department with ESTA refusals.
    In addition, the 9/11 Act requires that the air exit system 
also incorporate biometric indicators, such as fingerprints, by 
July 1 of 2009. DHS faces significant challenges in meeting 
this timeline due to several internal management challenges and 
resistance from airlines and the travel industry.
    Finally, DHS does not fully consider countries' overstay 
rates when assessing illegal immigration risks in the Visa 
Waiver Program because the Department's overstay data has a 
number of weaknesses. To improve the management of the Visa 
Waiver Program and better assess and mitigate risks associated 
with it, we have made recommendations in our report that DHS 
establish a clear process, in coordination with the State 
Department and Department of Justice, for program expansion 
that would include criteria to determine which countries will 
be considered for expansion and timelines with key milestones 
that clearly identify the process.
    In addition, we recommended that DHS designate an office 
with responsibility for developing overstay rate information in 
the Visa Waiver Program, explore cost-effective actions to 
further improve the data's reliability, and use the validated 
data to help evaluate whether current or aspiring Visa Waiver 
Program countries pose a potential illegal immigration risk to 
the United States.
    The Department in their comments to us either agreed with 
our recommendations or stated that it is in the process of 
implementing many of them. That concludes my statement. I would 
be happy to answer any questions.
    [The prepared statement of Mr. Ford appears as a submission 
for the record.]
    Chairman Feinstein. Thank you very much, Mr. Ford. Mr. 
Baker, your comments, and the degree to which you 3 could 
respond to Mr. Ford, it would be helpful. Thank you.

  STATEMENT OF STEWART BAKER, ASSISTANT SECRETARY, OFFICE OF 
   POLICY, DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, D.C.

    Mr. Baker. Thank you, Senator Feinstein. It is really a 
pleasure to appear before you and Senator Kyl on this topic.
    Chairman Feinstein. Thank you. I hope you leave feeling 
that way, too.
    [Laughter.]
    Mr. Baker. Well, as I think you may remember, I had to move 
a cardiologist appointment to come here.
    Chairman Feinstein. That is right.
    Mr. Baker. He said, ``This is not going to be exciting, is 
it? '' And I said, ``Well, we will see.'' I am looking forward 
to this because I think we do share the same goals, and I 
wanted to start by talking about the points on which we agree. 
And I start with some trepidation because I suspect that my 
quotes are going to end up on your easel the next time you have 
a hearing on this, because, in fact, we do agree that the Visa 
Waiver Program, as it was originally designed, had some very 
serious security holes in it. And it simply was not designed to 
deal with the threat of terrorism.
    I have put together a slide talk here on my right that 
talks about the progress in preventing terrorist travel that 
deals with the three security problems that we were concerned 
about. The first question that you have to answer about the 
Visa Waiver Program is: Do we know who is coming to the United 
States? And the answer is that we did not know who was coming 
to the United States when the program was first created. People 
would show up at the booth, and we had 30 seconds to interview 
them and decide whether to admit them.
    The second problem that the Visa Waiver Program had was 
whether we knew which risky travelers we should be looking for, 
and, again, we did not have very good measures of who was a 
risky traveler. We did not get good information about which 
citizens of a foreign country we should be concerned about.
    And, finally, the third question that we ask here is: If we 
have a system for identifying risky travelers, can people beat 
that system by, as you mentioned, getting a lost or a stolen 
passport or some other form of identity fraud? And, again, 
there was very little cooperation among countries, including 
visa waiver countries, giving us information about passports 
that had been stolen in those countries that we would need to 
watch for.
    What I think we disagree with is the notion that the 
program has not changed, that DHS has been administering the 
same program for the last 5 years. There have really been two 
sets of changes in the program, and both of them have made us 
more secure. You will see on that chart there is a pre-9/11 
with a relatively small number of security measures; post-9/11 
there were more. The ones I would like to draw your attention 
to are the ones that are circled in red because these are--it 
is on this side--oh, I am sorry. I thought you had a small copy 
as well. OK.
    On the first question, who is coming here, we now are going 
to be implementing for everyone in the Visa Waiver Program the 
ESTA that will tell us exactly who is coming to the country, 
and they will have to tell us in their own words and give us 
the information directly from their own knowledge and 
passports. So we will have advanced knowledge of the people who 
want to come to the United States.
    Second, identifying risky travelers, perhaps the most 
important strides that we have made in reforming the program 
using the tools that Congress gave us in 2007 is to negotiate 
with countries an expanded information-sharing process in which 
for the first time many of them are telling us about criminal 
convictions of their citizens. If we encounter them, we will be 
able to find out whether these are pedophiles or smugglers, 
something we never knew before. And they are also signing 
agreement to give us information about who within their borders 
may be terrorists. This is information, again, that we were 
never able to get prior to the tools that you gave us to 
negotiate new agreements.
    And then, finally, on the question of lost and stolen 
passports and new identities, we have had two successful sets 
of expansions of our security tools: First, using VWP 
conditionality from 2005, we were able to get people to provide 
us with blank passports that had been stolen. In this latest 
round of negotiations, countries have agreed to give us all the 
passports that are stolen, including issued passports.
    All of this is going to substantially increase our 
security. None of it could have happened but for the 
legislation that passed in 2007 because, as you will see, 
almost all of the measures that we are talking about that 
improve our security are things that could only happen with the 
cooperation, the voluntary cooperation of other countries. And 
by opening negotiations with countries that wanted to join Visa 
Waiver, we were able to offer them the prospect of Visa Waiver 
in exchange for the additional security measures that they were 
providing to us. And that is what has broken the dam and 
allowed us to get what I believe will be seven sets of 
agreements on sharing terrorism information, seven sets of 
agreements on sharing criminal data, seven sets of agreements 
on sharing lost and stolen passports. So that is the security 
measures that we have taken.
    Also, in the other chart that I hope you will have in front 
of you, I would like at some point to talk about the measures 
that we have for identifying who is leaving the country. We 
think that, in fact, we can identify and remove overstays, 
particularly dangerous overstays. We agree that having an exit 
system is crucial to that effort and that we can improve the 
exit system is the most cost-effective way. I hope we will be 
able to discuss that in more detail later on.
    In summary, we share the same security goals. We would like 
to work with you on your proposed legislation to try to find a 
way to improve visa waiver and visa waiver legislation in yet 
another round of legislation, if necessary.
    Thank you.
    [The prepared statement of Mr. Baker appears as a 
submission for the record.]
    Chairman Feinstein. Thank you very much, and, of course, we 
will work with you. That goes without saying, and I recognize 
that.
    Just for a moment, Mr. Baker, consider this chart. The 
bottom line is the 3 percent. You know, you say, well, DHS has 
other security arrangements with these countries, but the fact 
of the matter is the law requires certain things of you which 
you are ignoring. And you have, Estonia, South Korea, you know, 
maybe one quarter of theses countries at about a 4 percent Visa 
refusal rate; the Czech Republic, maybe 6 percent; and then it 
goes up. And it is as if it does not matter what the law says. 
You are going to do it anyway because you are going to do it on 
a political basis.
    Here is my concern. If, in fact, it is true that al Qaeda 
is looking for people who indeed are European, who indeed have 
easy access, who can pick up a fraud-proof blank passport on 
the black market, and 24 hours later could be in the United 
States for 90 days as a visitor, they have got it made in terms 
of coming into this country. And I do not understand why you do 
it with these countries, and yet you have Israel, Taiwan, and 
Croatia that meet the strictures, and you do not negotiate with 
them. So I have got to believe that something is rotten in 
Denmark.
    Mr. Baker. Would you like me to answer?
    Chairman Feinstein. Yes.
    Mr. Baker. I am glad to answer that.
    Senator Kyl. Dubrovnik.
    Chairman Feinstein. Dubrovnik.
    [Laughter.]
    Mr. Baker. Yes, exactly. I think you have asked two 
questions. One, are you going to let people in willy nilly even 
though they have not met the legal requirements? And--
    Chairman Feinstein. Why don't you follow the legal 
requirements?
    Mr. Baker. Let me start with that. We will follow the legal 
requirements. We will not admit anyone to this program who does 
not meet the 10-percent rejection rate requirement that is part 
of the statute. I can give you the assurance that I have made 
that clear to all of the candidate countries, especially the 
ones who are at the edge of 10 percent. We will not be 
admitting people to the Visa Waiver Program if their rejections 
are higher than 10 percent. We have been negotiating with these 
countries because, in fact, their rejection rates have been 
declining at a remarkable rate. Some of these countries were at 
20 and 25 percent 2 years ago, and they have declined 
dramatically in recent years.
    The calculation of this fiscal year's rejection rate will 
not happen until the fiscal year ends on October 1. However, 
given the trends over the past years in which there have been 
multiple-digit declines in the rejection rate, we predict--we 
believe that all four of the countries that are currently just 
over 10 percent will be well below it. That is why we are 
negotiating with people. We are not making them a promise. We 
are just negotiating.
    Chairman Feinstein. Then the law provides--and correct me 
if I am wrong, because I could be--that you need to certify 
first the electronic travel is fully operational.
    Mr. Baker. Yes.
    Chairman Feinstein. Which you are not able to do, and that 
the 97-percent exit system is in place without a phony formula 
of getting there, which you do not agree to do.
    Mr. Baker. We believe that ESTA will be fully operational 
within 6 weeks. That is to say, it is operational now. We have 
125,000 people who have filled out ESTA and come to the United 
States after having filled out and obtained approval to travel 
to the United States. And we are having 15,000 to 17,000 people 
every week go through that system. It is running well.
    There are some improvements that we need to make to make 
sure that it can handle the load, but it is operational now, 
and we believe it will be fully operational very soon.
    The 97 percent, we do have, I think, a disagreement over 
what the law allows--
    Chairman Feinstein. Would you stop on that one point?
    Mr. Baker. Yes.
    Chairman Feinstein. Mr. Ford, do you believe that the 
electronic travel system is fully operational now in your 
study?
    Mr. Ford. Well, they turned it on on August 1st. We do not 
know much about how it is working. It has not been certified 
yet. The DHS has not yet certified that it is fully 
operational, but they did turn it on on August 1st. And, again, 
we do not have enough information on how it is working.
    Chairman Feinstein. OK, so the jury is out on that.
    Mr. Ford. Yes.
    Chairman Feinstein. Mr. Baker, I did not mean to interrupt 
you, but I did. Please go ahead.
    Mr. Baker. As I said, we believe that ESTA will be fully 
operational, that things are going well with the system, the 
testing of the system. We have some improvements that we need 
to make, but we will make them, and we believe they will allow 
us to declare this system fully operational within roughly 6 
weeks.
    On the 97 percent, we have been around on that several 
times. We believe and our lawyers believe that the 97 percent 
requirement requires that we be able to verify the departures 
of 97 percent of the people who leave by air.
    Chairman Feinstein. Regardless of how many people come in. 
I mean, you are not measuring them coming into the country. So 
how do you know 97 percent are leaving?
    Mr. Baker. I understand. This is not a measure of how many 
people have overstayed. The 97-percent calculation, as we have 
estimated it, is designed to say how good is your exit 
measuring system. How good a job are you doing to make sure 
that the airlines are recording everybody who leaves and 
gathering information on those people? That is a valuable part 
of an exit system. It is not the whole thing.
    Chairman Feinstein. I want to give Senator Kyl the 
opportunity, but let me say this: You go to China, you fill out 
a slip on the plane, what you are going for, where you are 
going to be staying, how long you are going to be there. When 
you leave, you fill out another slip that marks your 
departure--and you attach to it the slip you filled out when 
you came in. A simple system. They know you have come, they 
know you have gone.
    I do not understand why you do not want to do this, because 
we are not interested, at least I am not interested, in 
promoting a program that allows people to come in and remain in 
the country illegally.
    Mr. Baker. If I could, this is the other chart, and I will 
not spend time on the entire chart, but there is a column here 
for I-94s. That is, in essence, the system that you described 
with the Chinese; that is to say, when people come in today, 
they fill out a form, an I-94 form, and they go through 
customs. In the course of that, the stub is torn off of the I-
94, and they carry it with them until they leave, and they hand 
it in as they depart.
    That system is a way of determining who has left and who 
has not, and we do use it for that purpose.
    Chairman Feinstein. So what conclusions have you come to? 
How many people overstayed this past year?
    Mr. Baker. We cannot give you that information based on the 
I-94 system because the I-94 system does not result in every 
arrival being matched with every departure. People lose the 
paperwork. They fail to turn it in. They cross the land border. 
Lots of things go wrong with the paperwork system. I am sure 
that happens to the Chinese, too. It is not a perfect system. 
It is the beginning of an exit system, and I think a good 
beginning. It is not a complete exit system from our point of 
view.
    Chairman Feinstein. So, in other words, you do not know. 
You do not know how many people misuse the visa waiver system. 
See, I believe in my heart of hearts that you do not want to 
know. That is my problem with it. We know that 40 percent of 
illegal immigrants are visa overstayers. And this is a likely 
program for them to use.
    And I do not understand why Homeland Security does not want 
to tighten that up. You want to know how many people are coming 
in. You know 13 million come in on this program.
    Mr. Baker. Actually, it is even more than that. It is close 
to 16 million. And I would draw your attention back to the 
chart that we put together, because that is a description of 
the exit system that we have and the exit improvements that 
have been proposed. And I think you will see that we really 
have made substantial improvements because we do want to know 
with as much accuracy as possible who has overstayed, and an 
exit measurement system is part of that process.
    So if you look, along the top you will see the ways in 
which we keep track of people who come and go. The I-94 system 
that I described earlier with the stubs is the first one, and 
we have improved that system by taking what was a paper system 
and making it a computerized system so that we can keep track 
of people in a computerized fashion. We actually key in that 
information. Obviously, with ESTA that will be much easier.
    The second and probably the most important part of our 
program for keeping track of people is the airline manifest 
program in which airlines tell us everyone that they bring to 
this country, everyone they take away from this country who is 
not a U.S. citizen. They do that by taking the information off 
the passport. It ought to be good information, and it ought to 
match up.
    Now, this depends on having the airlines do a very good job 
of gathering that information from every passenger. We have 
substantially, just in the last year, improved their 
performance in gathering that information by auditing them, by 
raising the possibility of fining them for errors. We did a 
spot-check audit in the last several months to see how good a 
job they were doing of recording the data on people who were 
leaving, and they are up in the 98-, 99-percent range.
    In addition, the biometric system, the air biometric system 
that we have proposed would add another few percentage points 
to the accuracy of the matches that we perform.
    And then, finally--and I think this is important because 
the last step in all of this process is tracking down the 
overstays. The whole point of this is to make sure that our 
investigators do not waste their time looking for somebody who 
has already left or who is otherwise misrecorded by the system. 
And so we have begun to put more effort and more resources into 
the process of tracking the high-priority overstays that we 
have identified in this fashion.
    Chairman Feinstein. I am going to turn it over to Senator 
Kyl, but let me say one thing. In my view, it is a worthless 
system, and here is why: You do not know how many people you 
start out with, and the Department, through all our hearings, 
has refused to collate it with entry. And if you do not collate 
it with the entry system, to me it is worthless.
    Mr. Baker. Senator, I share your concern about this. We are 
very worried about errors in this system, and there will be 
errors that will distort the calculations. But I have asked our 
people to go back and make exactly the calculation you are 
talking about. Take the arrivals, take the date when they are 
supposed to leave, and say, OK, how many people who were 
supposed to leave in that period, say 6 months, actually left 
by our records, and try to correct the errors to the extent we 
can. We are in the process of doing that.
    Chairman Feinstein. It is 90 days, right? It is not 180 
days. It is--
    Mr. Baker. I picked a 180-day period. Yes, if they are in 
the Visa Waiver Program, they need to leave within 90 days. If 
they have a visa, they may have a different departure date. We 
are trying to do not just Visa Waiver Program but all persons 
who come to the U.S. who have--
    Chairman Feinstein. Then, again, you mix it up. But what we 
are trying to evaluate is the Visa Waiver Program, whether the 
country is protected against security hits or illegal entries 
through the Visa Waiver Program.
    Mr. Baker. Let me see if we can break out just the Visa 
Waiver Program. I suspect that the visa waiver countries are 
actually going to have fewer overstays than the visa countries. 
And we may be able to break that out for you.
    Chairman Feinstein. That would be very helpful.
    Senator Kyl?
    Senator Kyl. Thanks. Some of my questions will just follow 
on what Senator Feinstein was asking.
    Let me, first of all, make two points about your testimony, 
Secretary Baker. First of all, you said that there is a tension 
between getting valuable security information from countries 
and our willingness to grant visa waiver; that the more liberal 
we are in granting countries visa waiver authority who want it, 
the more they are willing to cooperate with us in getting a 
variety of helpful security information, which you detailed on 
this one chart.
    Obviously, there is a tension there because there is the 
potential for both terrorism and illegal immigration if there 
are errors or overstays in the Visa Waiver Program itself. So 
you have to weigh the value there. We understand that tension, 
but we do need to make sure that we are at least complying with 
the law as to the former.
    Secondly, I have looked at your legal analysis of this 97-
percent requirement, and I agree with the totally contradictory 
opinions of both Senator Feinstein and you, meaning I think 
technically from a legal interpretation point of view, you are 
exactly right. I think we drafted it incorrectly, because I 
think I know what our intention was, and it is really right now 
kind of a moot argument, although I do understand why you feel 
it is valuable to generate the data on the effectiveness of the 
identification program, the 97-percent aspect of that.
    But the real question, the big elephant in the room is the 
visa overstayers, and we all acknowledge that. So that kind of 
gets us to the next question.
    Now, as I understand, Mr. Ford, your testimony is that DHS 
has not developed the tools to enforce a requirement to 
determine visa overstayers--I am trying to simplify what you 
said--and that they must develop clear criteria and timelines 
to be able to establish the overstayer data and to evaluate the 
extent of the problem of illegal immigration as both a result 
of the Visa Waiver Program and all of the other ways in which 
people enter the country as well, both of those things that 
Secretary Baker just referred to.
    First of all, am I correct in that?
    Mr. Ford. Yes, you are. That is correct.
    Senator Kyl. OK. And now let me ask you just a technical 
question. On the chart, we talked a little bit about the 
countries that will only be admitted once they qualify, once 
they are below that 10 percent. But, Secretary Baker, what 
about the ability to determine if they have lapsed into 
noncompliance at a future date? What can you tell us about 
that? And, Mr. Ford, did your GAO report deal with that in any 
way as well?
    Mr. Baker. We obviously will not be able to use visa 
rejection rates to evaluate visa waiver participants because 
visas are not granted in a Visa Waiver Program. So we will have 
to develop other tools for determining whether countries have 
met the requirements and continue to meet the requirements.
    I would put considerable emphasis on whether they are, in 
fact, cooperating on all of the security and immigration-
focused parts of the program. That has got to be a big part of 
this. And then we do have to look at the question of how are 
they doing relative to the other Visa Waiver Program 
participants in terms of overstays.
    My biggest concern with looking at overstays is that when 
you get down to something that says we have accounted for 95 or 
97 percent of all the people who came in, we have matched them 
with all the people who left, if you had even missed 2 percent 
in your effort to match people up, you are going to have an 
impression that it is a 3-percent overstay rate when really you 
have got a 2-percent error rate and a 1-percent overstay. So 
that is my biggest concern in that area.
    Senator Kyl. Let me just interrupt there. We know that 
right now we do not have an effective visa overstayer 
identification program. We understand that. What we are going 
to try to do is to push the DHS and State and anybody else that 
is working in this area to get that to be as effective as 
possible for a whole lot of different reasons. This is one of 
them.
    To the extent that you identify a potential error rate, we 
can always discount the data to that extent. But would you not 
agree that it is important for us not only to be able to make 
the initial determination for granting the authority to work 
under the program, but also to ensure compliance every year 
that the countries are, in fact, doing that?
    Mr. Baker. I do agree that it is a completely relevant 
consideration for continued participation in the Visa Waiver 
Program. In the end, we did suspend the participation of 
Argentina and Uruguay in the Visa Waiver Program precisely 
because we saw too much illegal immigration from those 
countries after their economic crises. It would be better to be 
able to do that on a more objective basis.
    Senator Kyl. And, Mr. Ford, if you want to respond to any 
of that last question, you certainly may, too.
    Mr. Ford. Yes. Well, I think that was one of the key points 
in our report, that we felt DHS is not at a point at this stage 
to provide the quality of data that is necessary to make those 
judgments. And we believe that they need to strengthen their 
whole data-gathering apparatus, and we made a recommendation in 
our report that they do so, because we think that it is a 
foundation not only for judging aspiring countries and current 
members, but it is also a vehicle for law enforcement.
    DHS is currently using what data they do have with whatever 
limitations they have for law enforcement purposes. They turn 
over information to ICE, who uses it to investigate cases of 
individuals who have overstayed their visas, and I believe in 
our report we cited in 2007 that ICE had identified over 12,000 
cases that had been referred to them based on overstay data. So 
there is a lot of value, in our view, to coming up with good, 
solid numbers, and we do believe that DHS should be able to 
deal with some of the error issues that they currently have, 
and they ought to be able to explain what the margin of error 
is for making those judgments. And then once they have done 
that, they can report that to the Congress, and Congress can 
determine whether they think that is a feasible rate for 
continuing their participation in the program.
    Senator Kyl. All of the legislation that Senator Feinstein 
has been thinking about here deals in significant measure with 
this whole overstayer issue, and it gets around this 97-percent 
problem and says that is moot. We want to know about 
overstayers. I am not sure it had a section on the countries 
that may have lapsed in their performance, and we would want to 
add that if it does not.
    Chairman Feinstein. That is right.
    Senator Kyl. By the way, may I ask just one more question?
    Chairman Feinstein. Sure.
    Senator Kyl. It is a follow-up to your question, and that 
is, is there a response that you could give us today with 
regard Israel, Croatia, and Taiwan?
    Mr. Baker. I can give you a basic response. In 2005, early 
2005, before I joined the Government and before Secretary 
Chertoff came to DHS, DHS and the State Department came up with 
a set of road map countries, that is to say, the countries that 
they thought should be given a road map to visa waiver status. 
And they listed all of the countries that are on that chart, 
plus a few, and said you are the countries that we are going to 
be looking at most closely in this first convoy of potential 
visa waiver candidates. None of the countries that you 
mentioned--Croatia, Taiwan, Israel--were on that road map. And 
so we have focused our attention on the people in whom we 
created a certain amount of expectation.
    We will have to take another look at who the next 
candidates are once we have finished this round. But I guess I 
would say that, in fact, if you look around at the geopolitical 
events of the last several months, this has turned out not to 
be such a bad idea. These are countries whose friendship with 
the United States and whose ties to the United States should be 
bolstered. They are new NATO members, and belonging to NATO is 
a much more important thing now than it was just 6 months ago, 
and strengthening our ties there I think would be a wise step.
    Chairman Feinstein. So you are saying because 8 years ago a 
decision was made to create some road maps, that in 8 years you 
have not changed that?
    Mr. Baker. Three years, but yes, we--
    Chairman Feinstein. I thought you said the prior 
administration.
    Mr. Baker. No, no, sorry. Before I came to Government, 
before Secretary Chertoff came.
    Chairman Feinstein. I beg your pardon.
    Mr. Baker. It was actually 2005.
    Chairman Feinstein. Right.
    Mr. Baker. And so we began the negotiations with those 
countries. I would stress that there is nothing today that 
prevents countries that want to be part of the Visa Waiver 
Program from coming in and saying, ``We would like to start 
sharing information with you about people who are terrorists 
when they come to your country, about people who committed 
crimes and they come to your country.'' Our door is open. If 
they want to come in tomorrow and start talking about that, it 
gives them a leg up when the time comes to say, ``Please 
consider us for visa waiver status.'' I would talk to every one 
of those countries tomorrow if they wanted to come in and do 
that.
    Chairman Feinstein. Let me ask this question, if I may. 
What is being done about the extraordinary number of stolen 
passports, particularly in visa waiver countries?
    Mr. Baker. We have engaged with both Interpol and the 
individual countries and have really begun to monitor their 
performance on an almost daily basis. We can tell you about 
particular countries--I would prefer to do that in a private 
session--what their performance has been in terms of how well 
they have done in reporting stolen passports within 24 hours of 
getting a report that the passport has been stolen.
    Now, there are a number of security measures built into 
these passports that makes it hard for people who have stolen 
them to turn them into plausible, long-lasting forged passports 
that can be used. But you are absolutely right that we have 
been very troubled by the extent to which organized crime has 
felt that these passports were so valuable that they would 
rather steal them than money in many cases. And all we can do 
is make sure that we are alert to invalidate them as quickly as 
possible, just as you would with a stolen credit card.
    Chairman Feinstein. What concerns me is we are now going 
into the so-called fraud-proof passport, and, in fact, I know 
this number, at least 10,000 stolen in France a while ago were, 
in fact, fraud-proof passports, Geneva Convention travel 
documents, international driver's licenses. Now, why--
    Mr. Baker. Well, we do not let people into the country with 
an international driver's license. They have to have a 
passport.
    Chairman Feinstein. Well, that is something that is good.
    Mr. Baker. But we are very alive to this concern. Now, just 
stealing it does not help. You still have to turn it into a 
plausible finished passport if you have stolen a blank, or you 
have to look a lot like the person that is identified in the 
passport.
    Also, you know, we take the fingerprints of everyone who 
comes to the country from outside the United States, and if 
they are using a stolen passport from someone who has been to 
the United States, their fingerprints are not going to match 
the fingerprints that were used the last time they came in. We 
have found a couple thousand people just by matching their 
fingerprints to people that we are looking for. All of that 
makes it much harder to pull off identity fraud even if you 
successfully steal a blank passport from a VWP country.
    Chairman Feinstein. Has anyone from your Department 
actually spoken with Ron Noble of Interpol?
    Mr. Baker. Absolutely. We have linked into their data 
bases. We have sent people to work at Interpol on problems of 
this sort. We are one of the largest users of their lost and 
stolen passport resources. We were the ones who pushed them to 
improve their resources so they could be more timely.
    Chairman Feinstein. The reason I ask this is that the 
problem seems to be getting worse, not better. And as we go 
into the fraud-proof passport, can tell you from immigration 
documents that are made on Alvarado Street in Los Angeles, they 
are done in 15 minutes, and you cannot tell the difference. 
This is a very dangerous area, I think.
    Mr. Baker. It absolutely is, and I would not myself use the 
term ``fraud-proof passport.'' It is like a fraud-proof credit 
card. It is very difficult to be fraud-proof. You raise the 
cost of trying to forge it, and then you have
    to build a lot of security measures around it, including 
back-end measures. Just as you get a lost credit card or a 
stolen credit card needs to be reported and then invalidated 
and the person who has it arrested, you need to do the same 
thing with passports. And that is part of our strategy in 
dealing with these stolen passports.
    Chairman Feinstein. Thank you.
    If I might ask Mr. Ford this question, and this is kind of 
a toughie because it is going to call for your quick analysis. 
You have done a lot of good work, and I thank you for that 
very, very much. If you had to identify three things that could 
be done to make our concerns met, what would those three things 
be?
    Mr. Ford. Well, the first one would be one I have already 
talked about, which is developing the capability at DHS to look 
at the overstay data and more effectively use it. I already 
talked about that, but that would be one of the three.
    I think a second area that the DHS is currently working on 
but we would like to see them accelerate is in this issue of 
lost and stolen passports. They have established agreements 
with a number of aspirant countries. We would like to see them 
extend those to the current members as well. We believe that 
they have a plan to do so, but we have not seen that. But we 
think that is an important.
    Chairman Feinstein. What kind of agreement is it?
    Mr. Ford. These are information-sharing agreements that 
Secretary Baker already talked about. We have those agreements 
with the aspirant countries, I think seven or eight. I think it 
is either seven or eight. We would like to see that expanded-
    Chairman Feinstein. So you would expand that to the other 
23?
    Mr. Ford. Well, we have 27 current members. We would like 
to see agreements with those 27 members because this issue of 
lost and stolen passports is a critical issue. And, you know, I 
think that currently we are operating more or less on a 
voluntary basis as to whether or not they provide that 
information on a timely basis, something that we were concerned 
about in the past. I think moving that ball down the court a 
little further by establishing more formalized agreements would 
be something that we ought to consider to strengthen that 
aspect of the program.
    Chairman Feinstein. Let me get a reaction from Secretary 
Baker on that. That sounds like a good idea.
    Mr. Baker. In general, I think Mr. Ford has identified 
something that is very much the concern for the next 2 years in 
the Visa Waiver Program, which is taking the standard that we 
have set with the aspirant countries, the high
    security standards that we have set for them joining the 
Visa Waiver Program, and making sure that we have not created a 
two-speed Visa Waiver Program. We have to apply all those 
security standards across the board to all the visa waiver 
members.
    Chairman Feinstein. Will you do it? Mr. Baker. We will 
begin that process, and we--
    Chairman Feinstein. Can you say yes or not?
    Mr. Baker. Yes.
    Chairman Feinstein. You are on the record.
    Mr. Baker. I could not be more determined. We have said to 
the aspirant members you are not joining as a second-class 
member of visa waiver with more obligations than the other 
members. But the other members are in, and we need to give them 
time to come up to the same standard that you have set.
    Chairman Feinstein. You realize that the bill that we are 
thinking about would require it. We would require that current 
visa countries sign passport data agreements before new 
countries could be admitted.
    Mr. Baker. Well, that is the one place where I would put a 
footnote. The performance of each of these countries with 
respect to lost and stolen passports is really about execution 
and it is not about the agreements you have signed. And people 
who sign agreements have good
    performance, and some of them have not so good performance. 
We really would prefer to judge people by their performance 
rather than by whether they have signed an agreement. But that 
is a point on which--I think that is a relatively minor point.
    Chairman Feinstein. Mr. Ford, your third point?
    Mr. Ford. I think the third area that I would raise at this 
point is to assess whether ESTA actually functions as it is 
intended on January 12th when DHS hopes to make it mandatory to 
all of the current members and the aspiring members, those that 
they decide that they want to bring into the program. So I 
think we want to make sure that system works, and so that would 
be the third area.
    Chairman Feinstein. Well, do I need to ask you or do we 
need to ask you to do this, or are you going to do that, assess 
whether it works?
    Mr. Ford. Well, we have not been asked to do that. I 
think--
    Chairman Feinstein. You will be, with a letter.
    Mr. Ford. That is what I get for bringing it up, right?
    [Laughter.]
    Chairman Feinstein. Senator?
    Senator Kyl. Well, again, follow up on some of these 
questions, I had understood, Secretary Baker, that actually 
some of the existing visa waiver countries had been approached 
about also complying with some of the security measures that 
the new countries will be required to implement. You have 
indicated it is your intention, but isn't that manifested by 
the fact that some of these countries already have been 
approach with a request to do these things?
    Mr. Baker. Absolutely. We have already begun talking to 
countries about the security standards that we think are 
essential to have a good Visa Waiver Program. And, indeed, 
there are incumbent members who already meet those standards, 
so we are aggressively pursuing this. It is just, you know, we 
have gone through our process in which we have been negotiating 
this with seven countries, and my team is a little sleep 
deprived. And so turning to the next 27, I would like to give 
them a break of, you know, at least a long weekend.
    Senator Kyl. Well, to make it clear to all of our friends 
around the world that this is not just a Department of Homeland 
Security that is trying to give them a hard time, that the 
legislative branch is at least as anxious that everyone sign up 
to these agreements, and more, that this is a United States of 
America unified desire. My hope would be that we could work 
with you in identifying some incentives that can be put in the 
legislation that Senator
    Feinstein is talking about to encourage all countries to 
provide this information, certainly anybody that wants to 
remain in the Visa Waiver Program. And I think in some cases 
what you have indicated is for one reason or another that we do 
not have to get into, it has been more difficult for them all 
to agree to these things. And to the extent we can provide 
incentives for them to do so, that could help. Would that be 
helpful?
    Mr. Baker. We would like to work with you on that. The Visa 
Waiver Program is good for the United States, too. It brings a 
lot of foreign exchange here, and that is something that we 
need. So we do not want to cutoff our nose to spite our face, 
but we have to have a secure program, too. So we would be 
delighted to work with you on that.
    Senator Kyl. Right. Well, the idea here is that the rest of 
the world would know that we are united in desiring that this 
gets done, and there are lots of different incentives that we 
could build into legislation.
    Mr. Baker. I think the bipartisan team that you and Senator 
Feinstein have presented has stood us in good stead already in 
our discussions with other countries.
    Senator Kyl. Sure. Thank you.
    Actually, here is a question for both of you, but I am not 
sure, Mr. Ford, that you gave the answer--or that we asked you 
to answer whether the deadline you think is going to be met on 
the biometric, the July 2009 biometric requirement for exits 
from airports. Is that going to be met? And if it is, how is it 
going to be met, Secretary Baker? And if not, what has to be 
done here to get it done?
    Mr. Ford. Well, you know, DHS clearly faces some challenges 
in meeting that timeframe. They have indicated that they 
believe they will. You know, they have got--I am not sure if 
they have got their final rule out yet regarding how they plan 
to implement that, but we do know there is a lot of resistance 
in the airline industry and the travel community, largely, I 
assume, because of the potential cost involved for them to 
manage that part of the program.
    And then just in the past, we have had some issues with DHS 
in terms of the schedules that they have put in place to try to 
implement the exit program as part of US-VISIT. We are in the 
process now of looking at that issue, but I think our current 
view is we think it is going to be a challenge for them to get 
there, but we will see. It is not July 2009 yet.
    Mr. Baker. I essentially agree with Mr. Ford. This is a 
challenge. However, we have put out a proposed rule that would 
have the airlines that are already gathering information from 
the passport also administer the fingerprinting that would give 
us the biometrics. That is the most cost-effective and 
efficient mechanism for both the Government and for the 
industry, we believe.
    We have taken comment on that. As Mr. Ford says, it is 
quite controversial with the airlines, and so they will not 
want us to implement this. But if we do not implement it under 
the existing statute, there will not be a second convoy of 
these waiver candidates, and that will disappoint a large 
number of people and may make it harder to get the security 
measures that we would like to get.
    Senator Kyl. Here, again--and I appreciate the answer-we 
understand the stresses that the airline industry is under 
right now. With the high cost of fuel, they are under enormous 
stresses. Nonetheless, they have as much of an incentive as 
everyone else does to ensure safe travel. And perhaps we can 
work together to find incentives of one kind or another to gain 
their cooperation here. I know it is going to be the law, but 
we frequently ask someone to bear the costs of something here, 
and since this is a security matter for the entire United 
States, maybe there are ways that we can ameliorate the cost to 
the folks that we are asking to help us perform this work. If 
you have any ideas right now, fine, but I think that is 
probably something we will want to visit with you about later.
    Mr. Baker. Once again, as with other nations, to the extent 
that the executive branch and Congress are saying the same 
thing and presenting a united front, that is much more likely 
to produce results.
    Senator Kyl. I had one last question. It is pretty general, 
and you may have covered this, Mr. Ford, in your report. I 
confess that I have only skimmed it and talked to staff about 
it. You may have this in there, but going back to the 
fundamental question that we are getting at, how can we develop 
an as accurate as possible entry-exit system that is so useful 
in so many different ways here? The one chart shows a lot of 
different things that are being done or need to be done, the 
costs of them and the fact that there are problems with each of 
them.
    What is the best way for either the Department or perhaps 
for GAO to help us understand how each of the different 
mechanisms work together? How they could lead to a coherent and 
effective program with very little error? And what would have 
to be done to cause that to happen if what we already have is 
not going to get us there? It is kind of a convoluted question, 
but I think you see where we are going. Just by way of 
illustration, not everybody that comes in by air leaves by air. 
OK? That is problem No. 1. How do you account for those who 
leave by another mechanism? And so on.
    What would be the best way for us to understand what is 
still needed? Sometimes we have the notion that we get only 
exactly what we ask for and that we are not expert enough to be 
able to ask for everything that is really needed. I mean, it is 
a little bit like on that 97-percent question. I think you did 
exactly what we told you to do, but we did not tell you to do 
what we really intended for you to do. And I have a feeling 
that somebody probably knew that, but it is easier to just 
comply and not say anything. And that is not a pejorative 
comment. You have got enough to do. But how do we put this 
program together so that we know what else Congress needs to 
do, whether it is money or additional authority, and you all 
have identified how to actually make it work and it is a system 
that can be audited in such a way that we have an idea of how 
it is working for the ultimate compliance issues as well as 
just substantively wanting to make the system work?
    Mr. Ford. Well, let me say, first of all, that our current 
report, the one we just issued, we have no extensively analyzed 
the process, as you have just articulated it. So we are not in 
a good position at this point to tell you what type of model, 
for example, DHS ought to follow. We do not have a good sense 
of the precise criteria that DHS is currently considering in 
trying to design an effective exit system that measures this 
overstay data rate information.
    The recommendations that we have made in our current report 
are designed to make DHS put together a more coherent--I am 
going to use the words ``more coherent''--effort in gathering 
that data. At the time we did our work, there were several 
different offices within DHS that collect statistics related to 
people who enter and leave the country. There was not one 
particular place in DHS that was responsible for examining this 
overstay issue.
    We suggested that DHS consider establishing a focal point 
for that. We understand that they are considering it, although 
we do not know the details of it.
    But to answer your general question about what should this 
program look like, how can we assure that it is working, how 
can we assure that it is being complied with, whatever 
requirements that DHS lays out, we have not really fully 
examined that, so I cannot give you a comprehensive answer to 
it. I can only give you a partial answer, which is basically 
that we want DHS to strengthen their capabilities to at least 
assess the data that they collect so that they then can design 
a more effective exit system. That is really what our 
recommendation is designed for.
    Mr. Baker. I would start by saying it is not just Senators 
who sometimes feel as though they have gotten just the answer 
to the question that they have asked. I have had that 
experience myself.
    I have been thinking a lot about this in preparation for 
the testimony, and I wonder if to some extent we have not 
started with the wrong end of the telescope and whether we 
might make more progress in this fashion. We do have an exit 
system that produces a list of people who are either we do not 
know what has become of them or they are overstays. And we have 
a mechanism by which those people are investigated by 
Immigration and Customs Enforcement, particularly the high-
priority ones who may come from backgrounds that make us 
concerned.
    If we started with that list, the high-priority people that 
we are looking at, and said, well, what is the source of the 
errors--because when our ICE investigators go out, they find a 
lot of errors--and what is the most cost-effective way to fix 
them and then walk back through the process, then we are likely 
to find something that, once we have judged the cost, we can 
make the most cost-effective tweaks to the system. It may be 
that a land exit system is the right approach, but I was struck 
when I asked someone what is the largest source of error, and 
the investigator said, well, one of the biggest is we go out, 
we have somebody who has overstayed, who was supposed to leave 
a year ago, he is still here, as far as we can tell, we go to 
the address and he is there. And we say, ``OK, we got you.'' 
And he says, ``But, no, I have a piece of paper from CIS that 
extended my stay by 2 years. So I am here legally. I did not 
leave when I was supposed to, but your records just have not 
caught up with the new date by which I have to leave.''
    Now, that is a problem we have not discussed at all today 
because it does not have anything to do with matching arrivals 
and departures. It has to do with making sure that our record 
systems are fully automated and talking to each other. But if 
we start with the people we are looking for and ask why are we 
not finding them, why is this list wrong, we may actually make 
more progress in fixing that problem than if we start with a 
predetermined notion of how to solve the problem.
    Chairman Feinstein. If I might interject, on page 16 of the 
GAO report, if you have it in front of you, I think you will 
see a good alternative approach. And it states in the second to 
the last sentence, ``As we previously testified, an alternate 
approach would be to track air arrivals from a given point in 
time and determine whether those foreign nationals have 
potentially overstayed.'' In other words, take just one window 
of time and do the analysis.
    Mr. Baker. If you will let me get a little geeky here, I 
think that is actually a pretty good proposal from GAO, but it 
is not as good as starting with people who have arrived and say 
let's take that same constrained period of time and ask who 
should have left in that period. It should produce the same 
result, but it is much easier to take a look at our departure 
records in a recent period of time, because if you start with 
arrivals and you say, ``When were you supposed to leave? ''--
since you are looking at visas as well as visa waiver--you are 
going to get dates that are 3 years out, a year out, 90 days 
out. And then you have to go take all of those dates and try to 
come up with a departure--an overstay rate. It is a lot easier 
to start with the date when people were supposed to leave, and 
then you can just investigate a very recent period of time, say 
6 months or a year, or 3 months, and say, OK, let's take all 
the people who should have left then. Did we find a record of 
their departure? And if not, why not?
    But that is a very small difference from what GAO is 
talking about. We completely agree that that is, broadly 
speaking, the best way to start getting at the overstay 
problem.
    Chairman Feinstein. Limiting the universe by time--
    Mr. Baker. Yes, so I apologize for that diversion to 
detail.
    Chairman Feinstein. Mr. Ford, do you have a comment on 
that?
    Mr. Ford. No. I think that approach would be useful.
    We are not really at a point where we can prescribe exactly 
the best way to do this. Our suggestion that you just mentioned 
was designed to look at--since we have pretty good information 
on who comes in, at least on the air side, we have good data 
there, we thought that since that data seems to be pretty 
reasonably sound, that would be a basis to go back and find 
out, well, if we know how many are coming in and we have a 
pretty good idea of that, then we should be able to design 
something that would link back to that for the exit part of it, 
so that way you could say Joe came in on March 1st, did Joe 
leave 90 days later, yes or no.
    But I do not disagree that one way to do it is the way the 
Secretary is mentioning it here.
    Senator Kyl. The only point I would make is that this 
reminds me a little bit about the debate about the people who 
stay here illegally after they have come in via a different 
route, that is to say, across the California or Arizona border. 
And until we committed ourselves to trying to find those folks 
and tell them they have to leave, the problem just kept getting 
worse and worse and worse. And we also designed systems to try 
to prevent their illegal entry in the first place.
    Theoretically, the answer to this problem is to have a 
cohort of enforcement officers sufficiently resourced to start 
going out the day after somebody is supposed to have left, you 
know that he was supposed to be here 90 days, you have no 
record of him leaving, let's go see if we can find him.
    Now, maybe there is a chance of 1 in 100 that, gee, it was 
just because we did not coordinate our efforts with the other 
Department, the State Department that has granted him an 
extension or something. But that is not the reason why 40 
percent of the people who are here illegally are visa 
overstayers. They came here, they wanted to stay, and they 
decided to stay because we have no means of enforcement to 
identify them and ask them to leave.
    So that is the simple answer to the question, but I 
understand getting all of that coordinated and resourced is 
still a complicated matter.
    Mr. Baker. The resources is the big concern. For the 
foreseeable future, we will have to prioritize. We will have to 
say we are going to after first the people we believe are 
criminals or that we believe may be terrorists, and we will not 
be able just to go after everyone. And I would say from what I 
have heard about this program, it turns out a surprisingly 
large percentage of the people who are listed as overstays 
leave within 10 days. So instead of leaving on day 90, they 
leave on day 100. Partly, people cannot count. Partly, people 
think it doesn't really matter. So we probably should not rush 
out to get them on day 91. But after a short period of time, 
and actually if they are somebody we think is a criminal, we 
should go after them on day 91.
    Chairman Feinstein. My point is this is a huge program. It 
is 16 million people coming in from 27 different countries with 
no consular check. The first time you know anything about them 
is when they enter the country. It portends danger. And I think 
the danger element is a very big element, and we can track back 
various individuals that corroborate that.
    You know, I am very candid. I am not for expanding the 
program. I am for limiting the program. I am for getting the 
numbers down to a manageable number where you have got the 
systems to handle it. And to me, the way the Department goes 
about it is sort of backwards. You do deals with people and 
then bring them in the program, and you cannot really monitor 
it, you cannot really control it. You do not really know who is 
coming. You may know who is going, maybe someday. And to me, 
that does not sound like a program that protects the security 
of the American people.
    Mr. Baker. Senator, I agree with you in part. I am as alive 
to the danger of this program, the risks to this program, as 
you are, and I completely share your concerns about the risks. 
I believe, as you do, that al Qaeda thinks it is going to get 
in using the Visa Waiver Program if it can. It is exploring all 
kinds of opportunities to come to the U.S., and certainly this 
is one that we should worry about.
    I think we have done a lot on the front end to make it much 
harder to get into the country. Concerns about whether we can 
pick people up after 90 days, a different question, and I think 
less security than immigration focused. But I understand the 
security element to it as well.
    Chairman Feinstein. OK. Let me ask you a question. Belgium. 
You have had al Qaeda use Belgium visa waiver passports to come 
in. What has been done to prevent that?
    Mr. Baker. We have pressed the Belgian Government very 
hard, and I think with some success, to do a much better job of 
reporting lost and stolen passports. But as I said, in the long 
run, we need good cooperation from them in identifying 
terrorists within their territory so that when they try to come 
to the U.S., we know that this is somebody who needs a lot of 
scrutiny. And we frankly need to get a better information-
sharing relationship with a number of Northern European 
countries, including Belgium.
    Chairman Feinstein. Because my own view is the heart of 
Europe is really the area at issue. Would you agree with that?
    Mr. Baker. I do agree with that. There are problems from 
our point of view, and in many cases from the local 
government's point of view all across Northern Europe, but also 
down in a number of countries on the Mediterranean.
    Chairman Feinstein. And, it might be interesting to ask the 
GAO to take a look and give us some recommendations on how that 
issue might be better dealt with, because any way you look at 
it, you have no pre-screening of these people. And I certainly 
do not have the answer, but, Mr. Ford, could you take a look at 
that?
    Mr. Ford. Well, sure. I mean, if you ask us to look at it, 
to the extent we are, we would be more than happy to try to get 
at it. As I mentioned earlier, I think one vehicle would be, 
again, to see whether or not the ESTA system is working, 
because it is a tool that, if it does work, will provide 
advance information before people actually get on an airplane. 
So that tool could be at least one vehicle to try to prevent 
bad people from getting on the airplane; whereas, currently now 
they might get on the airplane, and we do not find out they are 
bad until they are already in the air, which is not good.
    Chairman Feinstein. How many people in the--and you may not 
know this, and I do not know it either--Visa Waiver Program 
when they come in are sent back?
    Mr. Baker. It is a relatively small number. I can tell you 
what our rejection rate under ESTA has been, which is roughly 
similar to the--it is actually larger, substantially larger 
than the send-back rate for people arriving here, and it is 
less than one-half of 1 percent. I would guess that we send 
back 30, 40 people a day, on that order.
    Yes, I have just been handed a note. Over a million people 
came from Germany last year, and we sent home about 500 of them 
because we felt that they had either misrepresented their 
status or were a threat to the United States.
    So we are really looking for a needle in a haystack, and it 
is important to remember that the whole point of our having 
this good data is to allow the people who are not a threat to 
feel completely welcome and not to stand in line for 3 hours, 
while at the same time the people that we are worried about get 
worked over pretty hard in terms of questions and examination 
of their passport, their luggage.
    Chairman Feinstein. Well, just if I may in conclusion, 
please do not feel that we are adversaries. This is a 
bipartisan effort. We do want to work with the Department and 
the GAO. I would really like to do this as a first-day bill 
next year. We will have a little bit of time to work on it, and 
I would like to ask, Mr. Ford, if you could participate and 
give us your best judgments. I think getting people that have 
knowledge of this program--and Mr. Ford certainly does--is 
helpful. And if we need to redefine what we meant on the 97 
percent, I think we are happy to do that.
    Mr. Baker. Senator, could I join in that? I believe that we 
are allies at heart, and I am really delighted that we have had 
this kind of exchange. Some of the things that we would love to 
talk to you about are law enforcement sensitive or 
diplomatically sensitive, and so it might be useful not only to 
talk about the legislation you are planning but to give you a 
briefing on the details of some of the concerns that we have 
about the Visa Waiver Program. And we would be glad to do that 
with you and Senator Kyl at your convenience.
    Chairman Feinstein. I think that would be very much 
appreciated. Perhaps we could do it before the end of the week.
    Mr. Baker. OK.
    Chairman Feinstein. Is that all right? Do you have other 
questions?
    Senator Kyl. No, I do not.
    Chairman Feinstein. Well, let me say thank you very much. 
Our interest is not going to wane. We will both be here next 
year, I think regardless of whoever is Chairman of this 
Subcommittee. We are going to continue our pursuit of this. We 
will have a bill to introduce to clarify it. We look forward to 
working with both of you in developing it.
    I, too, have thought a lot about the issue of commerce, 
because I have heard from the Chamber of Commerce and I have 
heard from the convention and all these people that want more 
and more people coming into our country because it means 
business. We learned a big lesson on 9/11, and it cannot be 
business as usual. And so we have to remember that. I see this 
as just an enormous weakness, and we have to correct that 
weakness.
    So I want to work with you. I want to do the right thing. I 
think protecting America is much more important than business. 
So that is where I am.
    Senator Kyl, do you have a concluding remark?
    Senator Kyl. No. Thank you very much.
    Chairman Feinstein. In any event, thank you both for 
coming. We appreciate it very much, and the hearing is 
adjourned.
    [Whereupon, at 4:01 p.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]


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