[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
U.S. GOVERNMENT PRINTING OFFICE
45-063 PDF WASHINGTON DC: 2009
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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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