[Senate Hearing 110-630]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 110-630
 
            OVERSIGHT OF THE DEPARTMENT OF HOMELAND SECURITY

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               ----------                              

                             APRIL 2, 2008

                               ----------                              

                          Serial No. J-110-83

                               ----------                              

         Printed for the use of the Committee on the Judiciary

            OVERSIGHT OF THE DEPARTMENT OF HOMELAND SECURITY

                                                        S. Hrg. 110-630

            OVERSIGHT OF THE DEPARTMENT OF HOMELAND SECURITY

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 2, 2008

                               __________

                          Serial No. J-110-83

                               __________

         Printed for the use of the Committee on the Judiciary


                     U.S. GOVERNMENT PRINTING OFFICE
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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


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, 
  prepared statement.............................................   319
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona, prepared 
  statement......................................................   322
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................   324
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     3

                                WITNESS

Chertoff, Michael, Secretary, Department of Homeland Security, 
  Washington, D.C................................................     6

                         QUESTIONS AND ANSWERS

Responses of Michael Chertoff to questions submitted by Senators 
  Grassley, Leahy, Feinstein, Specter, Schumer, Kennedy, Hatch, 
  Biden, Durbin and Feingold.....................................    48

                       SUBMISSIONS FOR THE RECORD

American Civil Liberties Union, Caroline Fredrickson, Director, 
  and Joanne Lin, Legislative Counsel, Legislative Office, 
  Washington, D.C., statement and attachments....................   266
Cason, James E., Associate Deputy Secretary, Department of the 
  Interior, Washington, D.C., letter.............................   293
Chertoff, Michael, Secretary, Department of Homeland Security, 
  Washington, D.C., statement....................................   295
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California, letter.............................................   315
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California, Hon. Jon Kyl, a U.S. Senator from the State of 
  Arizona, and Hon. Jeff Sessions, a U.S. Senator from the State 
  of Alabama, joint letter.......................................   317
Napolitano, Hon. Janet, Governor, State of Arizona, Phoenix, 
  Arizona, letter................................................   326
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania:
    February 15, 2008, letter to Secretary Chertoff..............   328
    February 15, 2008, letter to Attorney General Mukasey........   330
    February 28, 2008, letter to Secretary Chertoff..............   332
    March 4, 2008, letter to His Excellency Mohammed Hosni 
      Mubarak, President of the Arab Republic of Egypt...........   334
Tohono O'odham Nation, Hon. Ned Norris, Jr., Chairman, 
  Washington, D.C., statement....................................   336


            OVERSIGHT OF THE DEPARTMENT OF HOMELAND SECURITY

                              ----------                              


                        WEDNESDAY, APRIL 2, 2008

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, Pursuant to notice, at 9:37 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Kennedy, Feinstein, Feingold, 
Schumer, Whitehouse, Specter, Hatch, Grassley, Kyl, Sessions, 
and Cornyn.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. First off, I thank those who are here. I 
know it is a very busy time, and Senator Specter, who is on a 
whole lot of committees, is going to have to be leaving for 
another Committee. And I know people come in and out. I am glad 
you are here, and I thank Secretary Chertoff for being here. 
And it is an important part of our oversight responsibilities 
having him here.
    As I noted recently with respect to the publication of 
rules governing passport and entry requirements, I am worried 
about the Department's record in how it has handled the Western 
Hemisphere Travel Initiative, the REAL ID Act, naturalization 
backlogs, the resettlement of Iraqi refugees and asylum 
seekers, and the aftermath of Hurricane Katrina.
    Recently, President Bush used the fifth anniversary of the 
Department to speak about spreading freedom and liberty around 
the world, as he did, and I had applauded him at the time 
during his second inaugural address. But, accordingly, in order 
to protect the freedom and liberties of Americans, we have to 
adhere to the rule of law and honor America's commitment to 
basic human rights.
    The first Secretary of the Department, Thomas Ridge, has 
acknowledged that waterboarding is torture. This administration 
will not even share with this oversight Committee its legal 
justifications for waterboarding and why the administration 
supports waterboarding and other practices that we would 
condemn if they were used against an American anywhere in the 
world. Unfortunately, we have sadly gone from the world's human 
rights leader; now we find ourselves being lectured on human 
rights by the Pakistani and Chinese Governments. I mean, that 
puts us in a pretty bad position.
    Sixty-six people have died since 2004 while in the 
Department of Homeland Security's custody, some for lack of 
medical care or from outright neglect. Now, we have told, and 
rightly so, other countries to be careful how they are holding 
people. I do not know how we can say we are adhering to our 
standards when we lose 66 people in the custody of the 
Department of Homeland Security alone.
    Imagine the outrage if an American citizen were held in 
immigration detention in another country and then he or she 
died for lack of basic medical care. When it takes a lawsuit to 
improve substandard detention conditions for children and 
families at an immigration detention facility in Texas, the 
U.S. Government is failing its basic commitments to human 
rights and the rule of law--again, things for which we would 
criticize other countries if they did.
    Now, I recognize that the Immigration and Customs 
Enforcement branch has worked with nongovernmental 
organizations to make improvements in family detention 
standards and detention standards for asylum seekers who are 
fleeing to America to escape persecution in other parts of the 
world. But as the Department increased its enforcement 
activities, I wish it had planned better.
    We have also seen that the administration has failed to 
live up to its promises to resettle Iraqis who have helped the 
United States in their home country. This problem is compounded 
by the Department's inability to use the authority that 
Congress has given it to address the terrible effects of the 
material support bar and the related, overly broad definitions 
of ``terrorist organizations.''
    The recent case of Saman Kareem Ahmad, now a language 
instructor for the U.S. Marines who has received commendations 
from General Petraeus for his service in Iraq, exemplifies 
these problems. He was granted a special visa to come to the 
United States, but then, even though he has commendations from 
General Petraeus, even though he works as a language instructor 
for the U.S. Marines, his green card application was denied by 
your Department, which said that the pro-American, anti-Saddam 
Hussein group, the Kurdistan Democratic Party, with which Mr. 
Ahmad served, was a terrorist organization. He is caught in an 
``Alice in Wonderland'' trap that could very easily be solved 
if DHS wanted to.
    Now, here at home, of course, you are well aware of my 
concerns about the Department's implementation of the Western 
Hemisphere Travel Initiative. The Department must now make good 
use of the time Congress has given to make sure that the 
implementation goes smoothly and to minimize disruption in 
Americans' lives and in our relations with our good neighbors 
to the north and south.
    I also share the view of many on both sides of the aisle 
and across the country about the so-called REAL ID Act and its 
unfunded mandates for the States. If we are going to have a 
national ID card, we ought to at least make sure that somebody 
is paying for it, and not the States.
    Now, I agree that there are benefits to be gained by 
encouraging the States to make improvements in the 
identification that they issue. Everybody wants that. I do not 
believe that somebody at the border ought to be able to check 
several thousand different kinds of identification. But I share 
the view that far greater cooperation would have been gained by 
partnering with the States, rather than imposing a costly 
unfunded Federal mandate. Bullying the States is not the 
answer, nor threatening their citizens' rights to travel. And 
from Maine to Montana, States have said no.
    A Republican Congress rejected efforts toward comprehensive 
immigration reform and adopted the Secure Fence Act. My 
recollection is that their bill entrusted you with the power to 
``take all actions'' you determine necessary and appropriate to 
achieve and maintain operational control over our borders. The 
Department's virtual fence pilot program, which was apparently 
designed without adequate consultation with the Border Patrol, 
simply does not work. The administration can spend hundreds of 
millions of dollars on things that sound great on paper, but if 
they do not work, we gain nothing.
    In fact, your Department has begun condemning the property 
of private citizens in Texas and Arizona who would prefer that 
you not construct a border wall on their property. And just 
yesterday, you announced that the Department has waived all 
environmental laws in areas across 470 miles of border lands.
    I wonder if you will speak out for sensible enforcement 
policies or defend the billions of dollars in taxpayers' money 
being wasted in what seems to be a mean-spirited, costly 
effort, especially the landowners, some who say it is Big 
Government coming in and saying, ``You are going to do it our 
way, and you have got nothing to say about it.'' The border 
fence and the related actions scar not only our landscape but 
our legacy as a Nation of immigrants.
    Another example, of course, has resulted in the backlogs at 
the Citizenship and Immigration Services branch. You have told 
Congress that higher fees would bring faster and better 
services, and you now preside over citizenship application 
backlogs that could and should have been anticipated. These are 
applications from legal permanent residents and people who have 
followed the rules, but because there was incompetent 
Government planning, they cannot get through.
    I appreciate the recent efforts of Director Gonzalez and 
his hardworking staff, but I will be looking forward to see--
you are the one in charge--if you are going to deal 
aggressively with this issue. What commitment to the Senate and 
the American people can you make? Can you assure those who 
applied for U.S. citizenship before March 31, 2008, that they 
are actually going to be able to get that citizenship in time 
to vote in this next election? Or is it going to be, as many 
have suggested, that there is an effort made to make sure they 
do not vote in the next election?
    Now, we want security. But we want a Federal Government 
that works and which respects the principles of federalism and 
the basic human rights and civil liberties that we all hold 
dear.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Senator Specter?

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. Thank you, Mr. Chairman.
    Mr. Secretary, I begin by thanking you for your service and 
taking on this Department, one of the toughest in the Federal 
Government. You have a very distinguished record as U.S. 
Attorney, Assistant Attorney General, Third Circuit Court of 
Appeals, stepping over into this position, with a lot of 
problems, inevitable criticism, and I think you are doing a 
really outstanding job.
    I want to focus on a problem which I think is enormously 
serious, which has been significantly ignored under the radar, 
and that is the issue of illegal aliens who have been convicted 
of crimes who remain on the streets of America committing more 
crimes because we cannot deport them because their country of 
origin will not take them back.
    The statistics are alarming. Estimated by your Department, 
between 300,000 and 450,000 removable criminal aliens are in 
Federal, State, or local custody. They are an enormous cost, 
but more importantly, they are a gigantic public safety 
problem, because after they have served their sentences and 
been ordered removed, the immigration officials can only detain 
them for 180 days unless there is a significant prospect of 
deportation. But if none, they are released onto the streets of 
America.
    In the past several months, I have visited a number of 
prisons in Pennsylvania: the State Institution at Camp Hill, 
outside Harrisburg; Pittsburgh's Allegheny County; Luzerne 
County in the northeastern part of the State; Chester and 
suburban Philadelphia. And it has been a real eye opener on the 
issue of public safety and on the issue of cost.
    In Chester County, illustratively, it costs county 
officials $1,700,000 a year, and they are only compensated by 
the Federal Government, a couple of hundred thousand dollars. 
But the cost factor pales into insignificance on those who have 
been released back to the streets with the statistics showing 
they are recidivists, six, seven, eight repeat crimes on the 
average.
    There are a couple of things that can be done. You have the 
discretionary authority now to institute procedures so that the 
State Department will not grant visas to countries which do not 
accept back their criminals. I have introduced legislation 
which would make that mandatory.
    With all respect, I do not think there has been diligence 
by your Department in pursuing that option, but my legislation 
would make it mandatory. If another country wants to have visas 
and let their citizens come to the United States, let them take 
back their convicts. If they do not, we ought to deny them 
visas. The statistics show that there are an enormous number of 
individuals who are being kept here because their home 
countries will not take them back.
    I have also covered in my legislative initiative a proposal 
to restrict or cutoff foreign aid to countries. Egypt, for 
example, will not take back an inmate who has to be force-fed 
in Camp Hill, Pennsylvania, at a cost estimated by prison 
officials at $250,000 last year. And I have written to 
President Mubarak of Egypt about that and would ask consent for 
a copy of that to be included in the record.
    Chairman Leahy. Without objection.
    Senator Specter. Mr. Secretary, we have found that a 
Department of Justice survey last year showed that 40 percent 
of prisons surveyed did not even ask inmates about their 
immigration status. Now, the issue of sanctuary, some sanctuary 
cities, has significance when you are talking about not asking 
a witness to a crime what their immigration status is because 
you do not want to discourage witnesses from coming forward to 
report crimes. So there is a justification, at least arguably, 
for that distinction. But there is no reason why there should 
not be a mandate for inmates in jail to be asked about their 
immigration status so that deportation can be initiated.
    In my visit to the Philadelphia correctional institution, I 
talked to a group of inmates, 66 in number, all outfitted in 
their green jackets. I started to explore with them their 
willingness on minor offenses to waive the complexities of 
return under the immigration laws, and a number of them said 
they would be willing to do so. The Federal laws authorize 
voluntary return to be considered in plea bargains, and I would 
ask you to take a look at what has been done at the Federal 
level.
    And your officials were with me, very cooperative, very 
helpful, but they had not explored that in the county prisons. 
But if someone is charged with a minor offense, it has to be up 
to the DA to make the decision not to prosecute in the court. 
But if they will return voluntarily, let's get them out of the 
jails where they are very, very expensive.
    With respect to those who are released, I discussed with 
you informally a few moments ago the possibility of detaining 
them even after their sentences are concluded where there is 
evidence of their being violent criminals. It could be 
analogized to the Sexual Predators Act. But we ought to be 
exploring ways, even after sentences are concluded, where there 
is a real risk in returning them to the streets to figure out 
what might be done. And I would ask you now for the record what 
we discussed informally to have you seek an opinion from the 
Department of Justice as to what might be done.
    My red light is about to go on, and I want to raise one 
other subject with you, and that is the status of having 
workers in the United States to help on vital agricultural 
matters and other lines of work. There is a major story in the 
New York Times today about tomato growers in northeastern 
Pennsylvania who have given up on their crops, and I have heard 
that in other parts of my State and heard about it in other 
parts of the country.
    So that I do think the guest worker program and the 
availability of labor where we can regulate people coming in 
and going back is something that requires some immediate 
attention, as we need some immediate attention on the visa 
issues with the need for many skilled people--professionals, 
doctors, PhDs--who are willing to come to this country to 
perform vital services, and the visa quotas ought to be 
substantially expanded. There have been letters signed by many 
Members of the Senate on that subject.
    Finally, Mr. Chairman, I ask consent that my letters to Mr. 
Chertoff of February 15th and February 28th be included in the 
record with my request for a response as promptly as the 
Secretary can manage it.
    Chairman Leahy. Thank you. Without objection, they will be.
    Mr. Secretary, please stand and raise your right hand. Do 
you solemnly swear that the testimony you will give in this 
matter will be the truth, the whole truth, and nothing but the 
truth, so help you God?
    Secretary Chertoff. I do.
    Chairman Leahy. Please go ahead, sir.

    STATEMENT OF MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF 
              HOMELAND SECURITY, WASHINGTON, D.C.

    Secretary Chertoff. Thank you, Mr. Chairman, and thank you, 
Senator Specter, members of the Committee. It is good to see 
you. I look forward to dealing with the issues you have 
raised--not all in my opening statement. I have got a fuller 
statement which I request be accepted as part of the record of 
the hearing.
    [The prepared statement of Secretary Chertoff appears as a 
submission for the record.]
    Secretary Chertoff. I was reminded, as I walked into the 
building this morning, that a year ago I was spending quite a 
bit of time up here, including quite a bit of time with members 
of this Committee, as we tried to wrestle with issues of 
immigration. And although I think we made some progress, we 
were not able to take the ball over the goal line, although I 
am confident that in the fullness of time, it actually will get 
over the goal line.
    But we do need to make a deposit for the American people on 
the issue of credibility on enforcement, and I hope that as we 
do that, we can continue to look at the broader picture with 
respect to immigration reform so that we can reconcile our 
desire for security, the economic needs that Senator Specter 
alluded to in discussing some of the problem that our 
agricultural workers are having, and also to have a system that 
is humane but that respects the rule of law, which I think the 
American people care deeply about.
    We are continuing to move forward using the existing laws 
with respect to security, and we have also put into place some 
measures which I am hoping will at least make the existing 
temporary worker programs a little bit more user friendly, and 
I am happy to get into those.
    To give just a brief oral summary of where we are, let me 
begin with the border itself. We currently have approximately 
310 miles of border fencing constructed. That is about 170 
miles of pedestrian fencing and 140 miles of vehicle fencing. 
We are on track to reach our goal of 670 miles combined by the 
end of this calendar year. That would be 370 miles of 
pedestrian fence and 300 miles of vehicle fence, depending upon 
what is appropriate at a particular location on the border.
    In fiscal year 2005, we had 11,264 Border Patrol. 
Currently, we have 15,852 Border Patrol. That is an increase of 
4,500, you know, in less than 3 years, which I think is a very 
dramatic increase and one which I am happy to say has not been 
at the cost of quality. We had a group of former Border Patrol 
agents come in and look at our training program, and they have 
indicated it is as good as or better than it has ever been in 
the past. So we are on track to hit our goal at the end of this 
year of over 18,000 Border Patrol.
    With respect to technology--and, again, I am happy to get 
into this with more detail--we have actually made enormous 
progress with technology. The P-28 prototype, which we deployed 
in 28 miles of Tucson Sector, contrary to some of the news 
articles, did actually work and does work. It is currently 
operational. It has led to the apprehension of over 2,500 
illegal aliens. We need to take it to what I call 2.0 to make 
it more optimal, but it works, and it was made to work within 
the original budget. In fact, it wound up costing us a little 
bit less money than we budgeted for it because we got a credit 
on a couple of items that we ultimately decided were not 
performing and we did not need.
    But in addition to that, I want to emphasize what else we 
are doing with technology. We have four unmanned aerial 
vehicles. We will have by the end of this year 40--that is, 4-
0--mobile radar systems called ``mobile surveillance systems'' 
deployed all across the border. We have 7,500 ground sensors, 
and we will have another 2,500 this fiscal year, including 
1,500 for the Northern border, so that the virtual fencing 
element of this is, in fact, progressing and it is, in fact, 
producing real value.
    At the ports of entry, as you said, Mr. Chairman, we have 
the Western Hemisphere Travel Initiative now due to come into 
effect in June of 2009. We have in the meantime narrowed the 
number of documents that will be accepted at the border from 
8,000 to about 20 in order to eliminate the problem of people 
coming in literally with documents that are not worth the paper 
they are printed on.
    We have also eliminated oral declarations at the border, 
and one example of how this works occurred 2 weeks ago in 
Buffalo when an individual presented a Colorado driver's 
license, tried to make an oral claim of U.S. citizenship, was 
put into secondary because he did not have proof of 
citizenship; and ultimately, after we did a fingerprint search, 
we discovered he was not an American citizen. He had previously 
been removed from the country, and he had been denied entry in 
Mexico. This is exactly what we wanted to do, to catch this 
kind of individual, and literally every week, maybe as much as 
every day, we are catching people using this type of procedure 
at the ports of entry.
    Now, the good news on the Western Hemisphere Travel 
Initiative is the following: Currently, we have deployed at 
every port of entry a machine that will read the documents that 
will be required in June 2009. Those are currently deployed. We 
have the ability right now to read passports at the border 
using the machine-readable zone at all of our land ports of 
entry, as well as, of course, at our airports and seaports.
    There will also be an alternative reading device which will 
be able to read the RFID chip, which will actually speed up the 
flow across the border and answer one of the persistent 
complaints we get about long lines. We have awarded the 
contract for the readers. We will begin deploying the readers 
this summer. By next spring we will have readers for the RFID 
fully deployed and operational at the top 39 ports in the 
country, covering approximately 95 percent of the traffic. So 
we will be well underway to have this fully implemented in 
advance of June 2009.
    In addition, besides the passports themselves, besides the 
Pass Card, which the State Department is going to be issuing 
this spring, we have negotiated with a number of States to 
improve enhanced drivers' licenses that will also meet the 
requirements of the Western Hemisphere Travel Initiative. The 
State of Washington is already issuing the licenses; 6,500 have 
been issued, and about 18,000 people queued up in order to be 
interviewed to get the licenses. New York is working on its 
business plan to do it. Vermont is working on its business plan 
to do it. Michigan has just approved legislation to do it. And 
Arizona is working on it. And although we are not making States 
do this, it is certainly a convenience and an expense saver for 
the citizens, and we are encouraging more States to do this.
    On interior enforcement, we have see dramatic increases 
across the board in our capability and our results. 
Deportations, we went up from 2004 where there were 173,000 to 
last year where there were 283,000. Fugitive arrests went up 
from 6,500 in 2004 to 30,000 last year. Work-site criminal 
arrests went up dramatically. Work-site administrative arrests 
went up dramatically, and removal of criminal aliens also 
doubled--more than doubled between 2004 and 2007. So we are 
making progress in these areas as well.
    E-Verify, our system for employers to verify that their 
workers are, in fact, using legitimate Social Security numbers 
that match the names. We have been getting 1,000 employers 
joining every week. We now have over 58,000 employers 
participating in the program. Ninety-three percent of employees 
who submit to the process are instantly verified and approved. 
Seven percent are not. But when you look at what happens with 
the 7 percent, the vast majority of those never contest the 
fact that they do not have a legitimate number. They simply 
leave. We have 1 percent contesting, and those, of course, get 
resolved and people can be hired. This program works. It does, 
however, need to be reauthorized at the end of this year, and 
we are going to be asking Congress to do that.
    Our temporary worker program, we are looking forward to a 
streamlined H-2A program. I am well aware of the fact that our 
H-2B program needs to be--the cap needs to be extended, and we 
are working with Congress in order to do that.
    Finally, I know I will get into many of these issues in 
questions, but let me address two things that you raised, Mr. 
Chairman.
    First, with respect to Mr. Ahmad, the translator, I waived 
the objection to his getting a green card yesterday, so that--
we are out of ``Alice in Wonderland,'' and he is now on track 
to getting a green card.
    And, finally, we have stepped up the tempo of our 
naturalization of people who apply for green cards. Our target 
this year will be over a million. This will be the largest 
number of people that have been naturalized, as far as I know, 
in history--certainly more than in the past 2 years--and we are 
doing it without compromising the vetting process to make sure 
that we do not have a repeat of the debacle in 1996 with the 
Citizenship USA program.
    So, with that, Mr. Chairman, I am delighted to answer 
questions.
    [The prepared statement of Secretary Chertoff appears as a 
submission for the record.]
    Chairman Leahy. Well, thank you, and thank you for what you 
said about Mr. Ahmad. You know, it is interesting this happened 
the day before the hearing and after a major review in the 
Washington Post. The man lost his entire family in the chemical 
gas attacks unleashed by Saddam Hussein in Kurdistan in 1988, 
20 years ago, and instructing U.S. Marines in Arabic language 
and culture at Quantico, General Petraeus, as I said, commended 
him. Why did it take so long? I mean, is each one of these 
cases going to require a major story in the Washington Post or 
other major newspaper and a congressional hearing before they 
get resolved?
    Secretary Chertoff. Mr. Chairman, as you know, until last 
year, when I think as part of the omnibus bill, when we were 
given the flexibility with respect to--broader flexibility with 
respect to these organizations to waive the material support 
provision, until then we were bound by law with respect to 
these cases.
    After the new legislation was enacted, instruction and 
guidance went out, and we are now freezing action on all the 
people who might be eligible for a waiver who are similarly 
situated so that we can review and make the individualized 
determinations.
    Chairman Leahy. Is it coincidence that his was granted 
yesterday, the day before this hearing? Is that just 
coincidence?
    Secretary Chertoff. I think what happened--no. It is not 
the hearing that did it. When I saw the piece in the paper, I 
raised the question about why this was not included in the hold 
order that had gone out, and apparently, the hold order went 
out after the rejection of this particular individual had 
occurred. So I asked that we go back retroactively and make 
sure we were not losing people because of an artifact of time.
    Chairman Leahy. OK. So we had the newspaper article, went 
back and did it. I would think that would ring some bells in 
your Department that maybe if reporters can find out where 
something has not been done right and find out that easily, why 
can't we?
    Secretary Chertoff. And they have done that. They have gone 
back now, and we have frozen the people who are eligible, and 
we will make the appropriate individualized determination.
    Chairman Leahy. Now, the other thing I mentioned earlier, 
the backlog of the citizenship applications at USCIS, it has 
been widely reported, it is well known. When you asked for a 
fee increase, which we granted, the reason for giving that, for 
the Congress to allow for that increase in fee or tax or 
whatever you want to call it, you promised an average 
processing time of 5 months. Now we are told it is going to be 
14 to 15 months. And we gave you extra money to get a 5-month 
return.
    Now we get 14 to 15 months. And thousands, and maybe tens 
of thousands--some say hundreds of thousands--who applied in 
time so that they might be able to vote and participate as 
citizens--you can see where this is going. A lot of people are 
wondering whether--they have followed the rules. They have done 
everything that they have been told in this great country they 
want to be in so they can vote and everything else. But even 
though we are going to charge more and all that, sorry, we 
cannot get around to this until after this Presidential 
election, the first one in years--decades, really--where you 
have no incumbent running.
    Can you say that those who followed the rules, that have a 
naturalization application that was filed by March 31st, just 2 
days ago, those applicants will be processed and qualified to 
vote, qualified to be naturalized as citizens in time to 
register to vote before the November elections?
    Secretary Chertoff. Let me tell you what I can say. First 
of all, just to give you an idea of--
    Chairman Leahy. Is that answer a no, you cannot--
    Secretary Chertoff. I do not think I can tell you there is 
a particular date, partly because I cannot tell you whether any 
particular individual will have a problem in the background 
check. They may not qualify, or there may be a--
    Chairman Leahy. Assuming you have a qualified person.
    Secretary Chertoff. I can tell you that we have reduced the 
wait time. I can tell you we will--a record number of people 
will qualify. It will be over million, is our current 
estimation, which is far more than in any prior year. But what 
I cannot--
    Chairman Leahy. You are also charging far more than you 
ever did in any previous year in history.
    Secretary Chertoff. And the money is going to hire 
additional adjudicators and people to do the work that has to 
be done.
    Chairman Leahy. Well, how many of the individuals who did 
apply before March 31st will not be naturalized by September 
30th?
    Secretary Chertoff. I cannot--I don't--the statistics I 
have don't fit within that categorization. I have them a 
completely different way.
    Chairman Leahy. Would it be thousands? Tens of thousands?
    Secretary Chertoff. I cannot--I don't want to guess. Let me 
tell you--
    Chairman Leahy. Can you get us the answer?
    Secretary Chertoff. Pardon?
    Chairman Leahy. Can you get us the answer?
    Secretary Chertoff. It may be difficult to give you 
anything other than a rough estimate, but I can give you some 
information which I do have with me.
    Chairman Leahy. Even a rough estimate, can you give us 
that?
    Secretary Chertoff. I can tell you that we will have--we 
are targeted, we expect to have over a million naturalized by 
the end of this fiscal year. That will be about 30 percent more 
than we did the prior year and 30 percent more than we did the 
year before that. So it will be a record number that are 
naturalized.
    Chairman Leahy. Well, with the record high price that they 
are paying and the record high price which was put in at your 
request so they could get them through, it still appears--and 
feel free to go back and tell me if I am wrong on this--that 
tens of thousands, maybe even more, are going to be precluded 
from a chance to vote in the Presidential election.
    Secretary Chertoff. There may be a significant number that 
do not--that have applied as of this date that do not make it 
through. I mean, we are talking about 6 months. I do not think 
under the best of circumstances we ever guaranteed that we 
could process people in 6 months, even before the surge. And, 
of course, the surge in applications, the doubling in 
applications, created a lot more stress on--
    Chairman Leahy. Try to give us some numbers, because I 
don't mean to be cynical, but I am concerned that some of them 
are not going to be able to vote because--well, they will get 
through some very quickly after the Presidential election, not 
before.
    Let me ask you, you--
    Secretary Chertoff. I just--I would not like to let that 
linger in the air. We are going to be able to naturalize in 
record numbers, which I think is a powerful demonstration of 
good faith. At the same time, I do have to also recognize that 
10 years ago there was a blistering IG report relating to the 
1996 naturalizations which were riddled with fraud and 
misconduct. We are not going to repeat that either. So we are 
going to be secure and we are going to--
    Chairman Leahy. My time is nearly up, but I want to ask 
you, on REAL ID, the unfunded mandate put on the States, why 
not repeal that and return to negotiated rulemaking with the 
States? I hear on the one hand the great speeches from Members 
of Congress of both parties that we just do not like these 
unfunded mandates on the States, but here is a huge, huge one; 
some say it can go into the billions of dollars. We still have 
the question of whether your computers that you have talked 
about that are going to be in place can even talk to the 
State's computers, which will also be there, which has been a 
huge financial problem trying to work out. Why not just 
negotiate this for the States instead of saying, here, Big 
Daddy in Washington knows a lot better than you and here is 
what it is going to be?
    Secretary Chertoff. Well, first, Mr. Chairman, as I know 
you know, this was not my decision. This was a congressional 
decision.
    Chairman Leahy. No, but that is why I am saying, why not 
just have the Congress repeal it and go to a negotiated--would 
you like that better?
    Secretary Chertoff. I would say that we have actually, in 
effect, done the negotiation. We have spent an enormous amount 
of time negotiating with the States. As a consequence of that, 
we have reduced the cost by three-quarters. It is now--
    Chairman Leahy. The States still have to pay it.
    Secretary Chertoff. That is right. The States still have to 
pay it--
    Chairman Leahy. It is still an unfunded mandate.
    Secretary Chertoff.--although we do have some grant money 
available.
    Now, we are estimating it is about $8 a license. I am quite 
sure that I could predict with confidence that the States will 
come back to the Federal Government and maybe ask for more 
money, and that will be an issue to be dealt with in the 
appropriations process.
    Chairman Leahy. Yes, but there is nothing in the 
President's budget for it.
    Secretary Chertoff. There is some money in the 
President's--
    Chairman Leahy. $80 million, which would not even begin to 
touch this. We are talking about billions of dollars.
    Secretary Chertoff. There is some money in the President's 
budget for this. Also, given the fact that it is about $8 a 
license, it is obviously also a subject to be recaptured 
through fees. Certainly that reflects only a fraction of what I 
pay when I renew my license.
    So I understand there is always a financial issue here, and 
I respect the fact that there is disagreement about it. But I 
do want to say we have done a lot of negotiation with the 
States to address their concerns, and I think we are so far 
along the road to getting this done that I think we are better 
served, you know, continuing to address the outstanding issues, 
but moving forward with speed.
    Chairman Leahy. We will come back to that. I would mention 
one other thing, if I might, Senator Specter. Let me just ask 
this: I believe--and we have had some question in this 
Committee to have a special law passed declaring that Senator 
McCain, who was born in the Panama Canal Zone, that he meets 
the constitutional requirement to be President. I fully believe 
he does. I have never had any question in my mind that he meets 
our constitutional requirement. You are a former Federal judge. 
You are the head of the agency that executes Federal 
immigration law. Do you have any doubt in your mind--I mean, I 
have none in mine. Do you have any doubt in your mind that he 
is constitutionally eligible to become President?
    Secretary Chertoff. My assumption and my understanding is 
that if you are born of American parents, you are naturally a 
natural-born American citizen.
    Chairman Leahy. That is mine, too. Thank you.
    Senator Specter?
    Senator Specter. Thank you, Mr. Chairman.
    Mr. Secretary, do you know to what extent existing law is 
being implemented which authorizes on notice by you to the 
Secretary of State that visas will be denied to citizens of 
nations which refuse to accept repatriation of these convicted 
illegal aliens?
    Secretary Chertoff. I know we have used it on a couple of 
occasions, and it--
    Senator Specter. A couple of occasions? Would you take a 
look at that procedure and see if it can be implemented to put 
some muscle into the requirement that these nations take back 
their--
    Secretary Chertoff. Yes.
    Senator Specter. How about the legislation which I have 
introduced which would make it mandatory? Would you object to 
that?
    Secretary Chertoff. I think that, you know, there are 
probably foreign policy issues that suggest that a mandatory 
rule might be a little bit--
    Senator Specter. Well, let's examine those foreign policy 
issues. Why? Why shouldn't--when we have somebody who has been 
convicted of a crime, many crimes of violence, and they are on 
the streets of the United States, the most Immigration can hold 
them is 180 days, and they are back on the streets, they have a 
very high recidivism rate, an average of six to eight repeat 
crimes, what foreign policy considerations override the public 
safety?
    Secretary Chertoff. I mean, I agree with you. I think that 
countries ought to take their people back. And I should say 
most countries do, so it is not a widespread problem. There are 
some that do not.
    I always say that an automatic rule that says if you do not 
take somebody back you lose your visas might be regarded by the 
President as a--
    Senator Specter. OK, we will withhold on an automatic rule 
and give you a chance to use it on a discretionary basis.
    Secretary Chertoff. But I do think--and we have used--
    Senator Specter. Would you report back to this Committee in 
3 months and tell us how well you are using the existing 
authority you have to, in effect, compel countries to take back 
these convicts on pain of not having visas issued?
    Secretary Chertoff. Yes.
    Senator Specter. How about the point of denying foreign aid 
to countries which do not take back their convicts? I know 
there, again, you have foreign policy considerations, and these 
are delicate matters. But how do we get some teeth in the 
approach that these countries ought to take back these 
criminals?
    Secretary Chertoff. I think that actually the visa has 
proven in the past to be pretty effective leverage. I can think 
of a couple of instances where it did break a logjam. I do need 
to make one point clear, though. There are some times--there 
are two problems that arise when we try to send people back. 
One is if the country does not want to take them back, but the 
second problem that arises is sometimes the individual will 
claim that if we send them back, they are going to be tortured, 
and then we have a treaty problem. And some of the worst 
instances of people that we have essentially been stuck with 
are people that we cannot send back because our own courts say 
if you send them back, they may be tortured and, therefore--
    Senator Specter. Mr. Secretary, I accept that as a 
limitation if there is an inquiry made and real factual 
justification. There are, however, some in that category who 
ought to be sent back at least under an exception which is 
possible to the international covenant. Legislation 
implementing Article 3 of the U.N. Convention Against Torture 
says that there can be an exception to that if a regulation is 
adopted that the aliens are security risks, such as terrorists 
or those who have been convicted of a particularly serious 
crime. They are not entitled to that protection. But that 
cannot be done under international law unless a regulation is 
adopted by your Department. Canada has such a regulation. 
Canada has a good record on human rights. But your Department 
has not adopted that regulation.
    Would you take a look at that--
    Secretary Chertoff. Absolutely.
    Senator Specter.--and report back within 3 months whether 
you have adopted it? Because at least that exception, I think, 
ought to be utilized.
    Secretary Chertoff. I agree with that. Yes, we will 
definitely look at that.
    Senator Specter. Moving now to the question of detention of 
these dangerous people, going back to the proposition that once 
somebody has served their sentence and been ordered removed, 
Immigration can detain them for only 180 days unless there is a 
significant prospect of repatriation in the reasonably 
forseesable future, and if not, they have to be released, what 
could be done to detain these individuals by analogy to the 
predatory sexual offender? You and I have discussed and I 
mentioned in my opening statement that you will seek an opinion 
from the Department of Justice as to what we could legislate on 
there. But what is your thinking? First of all, do you believe 
that we ought to be searching for some way to detain these 
violent criminals longer as opposed to putting them back on the 
streets as a matter of public safety?
    Secretary Chertoff. I fully agree with that. It has been 
very frustrating when we have occasions where someone serves 
their sentence, we want to ship them out, that we cannot ship 
them out because either they have a legal basis to block it 
under the Convention or the country will not take them back, 
and then we cannot hold them. So I think at a minimum we should 
be abe to hold them, and I do believe actually this is 
something where a legislative cure is appropriate.
    Senator Specter. Let me move to a final point--I have about 
a minute left--and that is on the issue of voluntary departure. 
I was struck when I visited the Philadelphia jails and talked 
to quite a number of men who were there that they would be glad 
to go back voluntarily if the charges were dropped. And this is 
a matter that has to be evaluated by the prosecuting attorney 
who has the discretion in the local courts. But if there is a 
minor offense--your officials were not pursuing that line. So 
would you undertake to look at that situation with a view to--
first of all, do you think your immigration officials ought to 
be encouraged to identify people who are held in custody on 
minor charges to explore the possibility of voluntarily leaving 
the country, going back to their native country without all the 
delays which they can interpose?
    Secretary Chertoff. Well, let me say something. Not only do 
I agree, but we actually have done this with a number of 
States. We have at least with New York an arrangement where for 
non-violent criminals, they can actually get a reduction in 
their sentence if they will go back voluntarily. And the flip 
side of that is then they are under a restriction that if we 
should catch them sneaking back in, not only do they get 
punished for violating the law by coming back in, but they then 
have to go back and serve the balance of their original 
sentence.
    Senator Specter. Well, aside from a reduction in sentence, 
I would like you to explore the issue that people are not 
sentenced. They are in detention--the detention sometimes lasts 
several years. Chester County paid out $1,700,000 for their 
board and keep, was only compensated a couple hundred thousand, 
and that is taxpayers' money at the Federal level.
    Would you explore the issue beyond what you have said on 
those who have been convicted for lesser time, which I think is 
a good idea, to see if we can get these people out of our jails 
where they are minor offenders and send them back to the host 
country?
    Secretary Chertoff. I would be happy to, but I would also 
want to make sure that under that circumstance it is clear that 
if they come back in again illegally, they get a double whammy. 
They not only get punished for that, but they have to wind up 
serving their original--
    Senator Specter. Glad to see the double rap if they violate 
the law again.
    Thank you very much, Mr. Secretary.
    Chairman Leahy. Thank you, Senator Specter.
    Senator Kennedy?
    Senator Kennedy. Thank you. Thank you and welcome. There 
are three areas I would like to cover, and I appreciate your 
cooperation in letting me try to get through them.
    One is an area that the Chairman has mentioned about the 
naturalization of individuals who want to become American 
citizens, the naturalization process. You are familiar with the 
timeline. In January 2007, the fees were increased. 
Historically, whenever the fees have been increased, the 
numbers have spiked before the fee increase. Against this 
background, we find that not only historically numbers have 
spiked, but we had a lot of NGOs conducting citizenship 
campaigns to increase the number of naturalization applicants, 
which did take place, and we had a fierce debate on the 
immigration bill in Congress, which caused a lot of concerns, 
and we should have anticipated that there was going to be a 
backlog problem.
    At that particular time, DHS was processing applications 
within 7 months. Within 7 months. Now after the announcement of 
the increased fees, processing time has been extended to 14 to 
16 months. The administration had indicated you would reduce 
processing time by 20 percent--20 percent of 7 months--but we 
have seen instead the increase in processing time to 14 to 16 
months.
    At the present time, according to the figures that have 
been provided by CIS to the members of this Committee and our 
conversations, you would have been able to naturalize 
applicants up to the period of May of this year, May of 2008, 
and now the backlog is going to go back to July 2007. That is 
what CIS has told us. That amounts to 580,000--580,000--
individuals who applied in time who will not get the right to 
vote. Five hundred eighty thousand. Members of this Committee, 
have offered to provide additional resources, additional 
personnel, and we are stuck with this reality.
    What can you tell individuals who have played by the rules, 
have done the things that they have had to do that they do not 
have the right to vote, the most sacred right that we have in 
our country and our society, and have had background checks. 
Mr. Mueller and others have pointed out, in the background 
review of the naturalization applicant there is about 1 percent 
that have problems.
    When you have this enormous number of individuals who want 
to be a part of the American dream, who have paid their taxes, 
have met various requirements but are outside of the system, 
what answer can we possibly tell them for the reasons? And 
what, if anything, can you do about it?
    Secretary Chertoff. Let me say first of all that it is true 
that historically there has been an increase in applications in 
anticipation of a fee increase. However, in 1999, there was 
about a 30-percent increase. This year, there was over a 100-
percent increase. So I think the dimensions are unprecedented.
    As soon as we got the money--and, of course, we needed the 
money to hire the adjudicators--we went out and trained and 
hired adjudicators, and we are deploying those. We have also 
worked with the FBI to reduce some of the delays in the 
background check process.
    The consequence of this is that we have reduced the lag 
time that we originally projected, which was 16 to 18 months. 
We are now projecting 13 to 15 months. And we are now 
projecting that we will have processed within this fiscal year 
in time to vote over a million people. That is by comparison to 
about three-quarters of a million in 2007 and about 800,000 in 
2006.
    So we are making more people citizens more rapidly than 
ever before, but I have to say mindful not to sacrifice the 
quality assurance.
    Obviously, we have more money in the system now. The 
limiting factor is we need--we still need, A, to train people 
to adjudicate and, B, the FBI has to be able to process the 
background checks. And that is--
    Senator Kennedy. And I appreciate your response. It is 
still for people who have played by the rules and tried to get 
in line.
    Two other quick questions, because my time is running out. 
Today, your Department will issue two waivers--one that 
nullifies 26 Federal laws, another that nullifies nearly 35 
Federal laws. These new waivers will create sweeping zones of 
lawlessness along the entire U.S.-Mexico border. The New York 
Times is reporting that you refused to explain the decision to 
the House Energy and Commerce Committee.
    Is it your position that your waiver preempts large unnamed 
swaths of State land in Texas, Arizona, New Mexico, and 
California? Your new waiver also applies to the Religious 
Freedom Restoration Act, a law protecting churches from 
unlawful seizures. Do you intend to construct the walls on 
church property without consulting religious--
    Secretary Chertoff. No. No, this is a tribute to the fact 
that we have laws and creative lawyers that permit people to 
come up with all kinds of arguments about why we should--
    Senator Kennedy. I happen to be the author of the Religious 
Freedom Restoration Act.
    Secretary Chertoff. I do not think it applies really to the 
border. I do not think it actually prevents us from building a 
fence, but I am quite sure that some lawyer would make an 
argument that it prevents it. We would then be in court for a 
couple of years fighting about it, and that would delay the 
process.
    The bottom line is we have done an enormous amount of 
consultation, and we will continue to do, with respect to the 
environmental rules. However, we are currently in a lawless 
situation at the border because we have not just human 
smuggling but drug smuggling and violence occurring there. I 
had to go visit with the family of a Border Patrol agent who 
was killed a couple months ago because a smuggler ran him over 
with a jeep. And that vehicle would not have been there if we 
had a vehicle barrier in place.
    So I feel an urgency to get this tactical infrastructure 
in, and although we are going to be respectful of the 
environment, we are going to be expeditious.
    Senator Kennedy. I think all of us understand we need 
secure borders. The real question is whether the fence is 
effective. Half of all the undocumented are coming in and 
overstaying their visa. And the other side of this is that we 
are taking and preempting land in these areas, and that has to 
be, I think, done with great care.
    A final point, and my time is running out. This is on the 
number of Iraqi refugees that we are letting in. The 
administration said that it is admitting 12,000 this year. This 
is outside of the newer program. It is just with regard to the 
numbers that were agreed to by the administration.
    On page 17 of your testimony, it says that the U.S. 
Government has put in place resources for up to 12,000. It says 
``up to 12,000.'' What is it, Mr. Secretary? Is it going to be 
12,000 or some nebulous goal? At the present time, the 
administration has admitted fewer than 3,000.
    I have listened to the testimony of the ICRC. This is one 
of the greatest humanitarian disasters of all time that is 
happening. We need them to admit move refugees, clearly. We had 
agreed to 12,000. We are at 3,000 at the present time. What can 
you tell us? Are we going to meet that number?
    Secretary Chertoff. I think the answer to that is yes, 
Senator. I think we are at about 3,900 right now. Now, of 
course, we are only one part of the process. There is the U.N. 
has to make the referrals and the State Department has to do 
certain things as well.
    I can assure you that in terms of our piece of the process, 
we are quite current with respect to interviews, and we have 
already done 8,600 interviews and conditionally approved 8,600 
total. Now, there are some other agencies that are part of the 
process before everything gets finalized, but we are not going 
to be an obstacle for hitting 12,000. We are on track to do our 
part to hit the 12,000.
    Senator Kennedy. My time is up, Mr. Chairman. Thank you.
    Chairman Leahy. Thank you very much.
    Senator Grassley?
    Senator Grassley. Yes. Mr. Chairman, first, I have two 
unanimous consents: one, to put an opening statement in the 
record, and number two, to have some documents connected with 
my questions inserted in the record.
    Chairman Leahy. Without objection, so ordered.
    [The prepared statement of Senator Grassley appears as a 
submission for the record.]
    Senator Grassley. The first thing I want to comment on is 
where Senator Specter left off. I'm only making this as a 
statement, not something for you to respond to. But along the 
lines of what Senator Specter was saying about H-1Bs, it's my 
personal view, working with Republicans and Democrats on this 
issue, that the administration needs to think more about using 
its authority to deny visas.
    For instance, we have 18,000 Indian nationals here that 
India won't take back. By the way, you don't have to worry, I 
think, about India torturing their citizens. At least, I don't 
think they have that reputation. But at the same time, we turn 
a blind eye and grant them 20,000 to 40,000 H-1B visas each 
year.
    My first question continues with H-1B visas, but in a 
different vein. Some companies applying for H-1B visas actually 
are looking for people in positions like pizza-tossers, hotel 
managers, llama farm operators. Even the Republican Party of 
California hired a Canadian as ``State Deputy Political 
Director'' through the H-1B pilot programs.
    Now, these don't seem to me like the high-tech jobs that 
we're hearing from industry that they need H-1B visas for. On 
March 10th, I sent a letter asking for you to show progress on 
the promise made August 2007 to reform visas programs, 
particularly H-1B. I asked about efforts to institute 
administrative reforms to reign in fraud and abuse. Your staff 
responded to me, saying that the Department has ``convened 
working groups to identify and work on reforms''.
    I realize that Congress needs to enact some changes, but I 
think that this is a very cavalier response to my letter that I 
have here, indicating that the issue of fraud and abusive in a 
vicious visa program is not being taken very seriously. In 
fact, I would have to say that your letter is a non-answer.
    So, my question: what are you doing to ensure that the 
program is not being abused and that the U.S. is bringing in 
the best and the brightest and not just a Republican Party 
political director for the State of California? Obviously they 
need some new advice out there.
    Secretary Chertoff. Let me at least give you two examples. 
One, is we have, I think, promulgated a regulation that 
prevents or discounts companies that were abusing the process 
by filing multiple applications for the same people. There were 
some companies that were flooding the process by having, you 
know, 10, 20, 30 applications, and because it was a lottery 
system, they were basically buying more lottery tickets. So 
we've cut that out.
    The second thing we want to do, although it's still in the 
administrative regulatory process, is we want to deal with the 
problem of companies that attempt to essentially hoard the zone 
by so dominating the process or banking H-1Bs that other 
companies don't have an opportunity to compete. That is in the 
rulemaking process.
    I can attest to you, it always takes a lot longer than I'd 
like it to take because the Administrative Procedures Act makes 
getting a regulation out of the executive branch like passing a 
kidney stone. It just takes an enormous amount of time. I'm 
kicking people to get this moving as quickly as possible, 
because I agree that the program has been abused. I promise 
you, I will continue to prod on these issues, because I agree 
with you, we should not let some companies try to exploit the 
process.
    Senator Grassley. OK. I would appreciate, on another 
point--this being the Optional Practical Training Program--more 
information. I'll get into some details in just a minute. But 
this program is administered by your Department. I'd like to 
make sure we know who is here on OPT and what they're doing.
    Foreign students obviously are the ones that take advantage 
of this. There are no requirements, like wage requirements, no 
protections of our own U.S. students or workers, virtually no 
strings attached. These are people that could be sitting on the 
beach in California for a year, they could be playing some 
guitar on the streets of New York, who knows what.
    I know you're responding to the squeals of powerful 
business interests regarding their inability to bring in an 
infinite number of foreign workers through the H-1B visa 
program. Their latest attempt to get around the H-1B program is 
to keep these foreign students here longer than 1 year. We 
don't keep track of them.
    So, two questions. Does the Department of Homeland Security 
know how many people are in the United States on OPT status 
today? Second, does the Department know where each and every 
person with OPT status is in the United States if they needed 
to track them down?
    Secretary Chertoff. I think--I believe the answer to that, 
but I'm going to have to verify it, is yes to the first, and to 
the second, you know, if we grant someone Optional Practical 
Training, it's with the understanding that they're going to be 
working in a particular setting.
    Now, could someone abscond or violate the rule? Yes, that 
happens all the time. I mean, people violate rules all the 
time. Then, of course, they would not only lose their OPT 
status, but they would lose the possibility of ultimately 
getting a green card or a long-term work visa, which, from 
their standpoint and from the company's standpoint, would be a 
pretty serious sanction. So, I'll get--I mean, I'll verify all 
this, but that's my understanding.
    Senator Grassley. Last fall, I sent you a letter asking for 
information about two University of South Florida students 
arrested near Goose Creek, South Carolina with explosives in 
their trunk. They're Egyptian nationals, and have been charged 
with terrorism-related offenses. I learned that one of them, 
Ahmed Mohammed, entered the United States on a student visa, 
despite having been previously arrested in Egypt. Worse than 
that, he had even declared his arrest on his visa application 
form.
    I then inquired to find out why the State Department and 
why your Department failed to use their shared responsibilities 
over visa policies to keep an individual like this, and this 
specific individual, out of the country. It took 4 months to 
get a reply from your Department, and even then all I got was a 
letter that denied my request on the grounds that the indicted 
terrorist had not consented to the release of his records.
    So, could you explain why this Committee should be denied 
information necessary to conduct oversight of the visa issuance 
process just because an indicted terrorist, who is neither a 
U.S. citizen nor a legal permanent resident, didn't give his 
consent? Doesn't that sound a little ridiculous?
    Secretary Chertoff. Yes, it does. But unfortunately 
sometimes we operate under constraints that are--legal 
constraints that are a little bit puzzling. Let me tell you 
what my understanding of the rule is. First of all, obviously I 
can't publicly comment about the individual because there's a 
pending case. The case is going to go to trial. If I say 
anything about the individual in a public forum, I'm going to 
have a judge getting on my back about why I'm, you know, 
creating a problem for the jury.
    In terms of responding in writing, my understanding is that 
if the Chairman makes a request for this kind of information we 
are permitted, under the relevant laws, to convey a lot of this 
information. And that's just the way the law is written. I 
didn't write it, but we have to abide by it. So if the Chairman 
makes the request, I think that does give us an ability to be a 
little more forthcoming about this.
    Senator Grassley. Mr. Chairman, I'm not sure I was aware of 
that law. I was treated rudely by the Department as a FOIA 
request, not as a Senator's request. So I might ask you to sign 
a letter for some information that I might want on some of 
these issues that I'm not getting an answer because I'm not 
Chairman of the Committee.
    Chairman Leahy. For several decades, the Senator from Iowa 
and I have worked together, when he's been in the Majority or 
when I've been in the Majority, to get things, and of course 
I'll work with him. If we can sit down later, we'll figure it 
out what it is you want and I'll join you on the request.
    Senator Feinstein?
    Senator Feinstein. Thank you very much, Mr. Chairman.
    Mr. Chertoff, I'd like to join with those who thank you for 
your service. It is very much appreciated.
    As you know, I have a lot of concerns about the visa waiver 
program. I believe it's the soft underbelly of this country. 
And because so many millions come in from so many countries, it 
represents a real threat not only to profound over-stays, but 
also to the security of our Nation.
    Not long ago, Senator Kyl, Senator Sessions, and I had a 
hearing and, on March 3rd, the three of us sent you a letter 
requesting that DHS explain how it plans to comply with two 
requirements of the 9/11 legislation, specifically that it 
develop a fully operational electronic travel authorization 
system, and second, that it certify that there's an air exit 
system in place that can verify the departure of 97 percent of 
the foreign nationals who leave through airports in the United 
States.
    At the hearing on February 28th, we were informed by your 
staff that DHS may use a methodology that only tracks 
departures without considering whether an individual arrived in 
determining the departure of the 97 percent. In other words, if 
two people come into the country, or three, or four, or five, 
and only one leaves, the only track is on the one that leaves. 
This is what we were told.
    We wrote to you, Senator Kyl, Senator Sessions, and I, that 
such a methodology is unacceptable. It does not account for a 
person who has arrived and departure, nor does it track those 
who have over-stayed their visas. Now, we haven't received a 
response. We believe that methodology violates the law. If you 
care to respond to this now, we'd be very happy.
    Secretary Chertoff. I'd be happy to. I will write a letter, 
but I actually pulled the letter because I wasn't satisfied it 
was clear.
    Senator Feinstein. You thought it might come up?
    Secretary Chertoff. No. I wasn't satisfied it was clear 
enough. I think there might have been, in the prior hearing, 
the Committee and the witness might have talked past each 
other. So, let me try to explain my understanding of the law, 
which I have looked at and I have in front of me.
    First of all, we will have the electronic system of travel 
authorization up and running before the program--before the 
expansion of the program.
    Senator Feinstein. At every port of entry?
    Secretary Chertoff. Yes. It's not a port of entry. For 
every--for traveler--before we admit a country into the 
program, they will have to--their visitors will have to submit 
the electric travel authorization. It's not done at the port of 
entry, it's done online before you leave. So by the time you 
arrive at the port of entry, we will have done the assessment 
of the travel authorization.
    Senator Feinstein. Let me stop you there. What are there, 
23 million people that come in? It's 13 million people, or 16 
million, I believe, came in. So does that refer to the existing 
countries in the visa waiver program or only the new countries?
    Secretary Chertoff. We will begin with the new countries. 
Existing countries, we will then, as we expand the program over 
the next 9 months, we will bring all the old countries in. But 
the requirement of the law is, as a predicate to admitting the 
new country, we have to have this in place. This is something 
we argued for. We want it to happen. So we are going to begin 
in a few months with the first deployment of the system and 
we'll begin with some of the smaller countries first and start 
the process there, and then ultimately we will cover everybody. 
With respect to the 97 percent--
    Senator Feinstein. Incidentally, if I might. I don't mean 
to interrupt you, but I will.
    Secretary Chertoff. Yes.
    Senator Feinstein. The countries you're admitting are all 
above the legal refusal rate. We know that.
    Secretary Chertoff. So then we come to the next element, 
because there are a number of tests that have to be met. The 
current--the old rule was, the visa refusal rate was 3 percent. 
The statute raised the visa refusal rate to 10 percent. That 
allowed some countries that fell within the 3 percent to 10 
percent range to become eligible, provided they did the other 
things in the statute.
    One of the things the statute then provides, is that the 
Secretary of State and I, or my successor, can admit countries 
using an alternative to the visa refusal rate if we can 
demonstrate that the actual over-stay rate is below a certain 
number that we have to determine is consistent with national 
security. In order to make that determination, we have to 
compare the entry and the exit to make sure that we know how 
many people from each country are over-staying and how many are 
leaving, and that's what we need to do in order to get to that.
    Senator Feinstein. Well, but in other words, you're making 
up your own refusal rate.
    Secretary Chertoff. No. I'm--
    Senator Feinstein. The law says 10 percent.
    Secretary Chertoff. Right.
    Senator Feinstein. Let me just finish. Latvia, which you're 
going to admit, is at 11.8 percent; Slovakia, 12 percent; 
Lithuania, 12.9 percent; and Hungary, at 10.3 percent.
    Secretary Chertoff. Those will only be admitted when they 
fall below 10 percent. I think if you--in other words, you may 
be using figures from last year. These are countries which are 
laying the groundwork to be admitted, but they will have to 
meet the 10 percent or below threshold. We're not waiving the 
10 percent requirement, but they are, as your own figures 
indicate, coming very close to 10 percent. So--
    Senator Feinstein. What are the other countries that you 
are going to admit?
    Secretary Chertoff. I think the ones we've signed up so 
far, and these are the ones we think are close to satisfying 
the requirements, are: the Czech Republic, Latvia, Estonia, 
Slovakia, and Hungary. I think there are other states that--
that's in Eastern Europe. It may be that South Korea will be in 
a position relatively soon to meet the requirement.
    Some of the other countries are further off and, although 
they may begin the process of negotiating on other elements, I 
think everybody understands, until they hit all the 
requirements, they will not actually be admitted. But some of 
them may want to get started on some of the information 
exchange and things of that sort, you know, while they're 
hoping to drive the visa refusal rate down, and that's OK. But 
we're not excusing them from the visa refusal rate requirement, 
we're just trying to get some of the preliminary work done so 
when the hit the mark they can then be admitted.
    Senator Feinstein. And what you're telling us is that every 
one of the visitors, which will be, literally, hundreds of 
thousands that come in in these programs will have the fraud-
proof passport, they will be checked when they come in, and 
they will be checked when they go out?
    Secretary Chertoff. Right.
    Senator Feinstein. And you will know where they are in this 
country when they come in?
    Secretary Chertoff. Well, we will know that they've come 
in. They will put on their form where they're going to be, and 
then we will know when they leave. Now, as with any other 
visitor, if someone says they're going to be in Massachusetts 
and they lie to us and they go to Ohio, we're not going to know 
that until the time comes that they should have departed. At 
that point we'll know the over-stayed.
    Now, will we be able to find them immediately? It depends. 
It depends if they're hiding or not. That's true of all kinds 
of fugitives. But we will have achieved, I think, what we did 
not have, which is visibility into the flow in and out such 
that we can determine whether a particular country has an over-
stay rate that is unacceptable, which I think is ultimately 
where we all want to go.
    Senator Feinstein. OK. I think my time has run out. Thank 
you, Mr. Chairman. Thank you. May I enter these two letters 
into the record?
    Chairman Leahy. Of course.
    Senator Feinstein. One on visa waiver, and the second on 
border tunnels.
    Chairman Leahy. Without objection.
    My list had Senator Sessions next, but he's not here. 
Senator Kyl?
    Senator Kyl. Thank you very much.
    Chairman Leahy. Oh. Senator Sessions is here. I'm sorry.
    Senator Sessions. I'll defer to Senator Kyl. That's fine.
    Chairman Leahy. OK. I take my list from the Republican 
side, so--
    Senator Kyl. We are a courteous bunch, and I appreciate 
that very much from my colleague. I think Senator Sessions was 
here first.
    But, Mr. Secretary, you have an impossible job to do. 
There's always room to find criticism. I hope that it's always 
constructive. I do appreciate your efforts, and those of your 
Department.
    I just want to lead by saying that over the break I was 
down in Yuma. First of all, Mr. Chairman, it might be of 
interest that over half of all of the illegal immigrants coming 
into the United States across our border come through the 
Tucson sector, about 51 or 52 percent, so this is a huge 
problem in Arizona and the Tucson sector has a lot of work to 
do. The Yuma sector is the other part of the Arizona border and 
goes over into Senator Feinstein's State for about 10 or 12 
miles.
    What is illustrated by Congress' efforts, with the 
Department of Homeland Security, is that when we put our mind 
to it, we can significantly affect the problem of illegal 
crossing. Fences are being constructed, vehicle barriers, 
double fences, a lot more agents, radars deployed, and all of 
this has had a dramatic impact, along with one other program 
which I'm going to get to, and that is automatically detaining 
and not releasing to the border Mexican citizens.
    The combination of these has, at least in the first 6 
months of the fiscal year, reduced illegal immigration in this 
sector by an order of magnitude. Now, that's a big change. What 
it shows is that if we have the will and if we apply the 
resources, we can get the job done.
    The one question I have, Mr. Secretary, is that, as you 
know, in the Yuma sector they have begun to do the same thing 
that's been done in Del Rio, Texas, and the Tucson sector is 
also beginning, the detention of aliens with the prospect, in 
most cases, of a 60-day detention in jail automatically. It's a 
zero-tolerance policy. This has had a dramatic deterrent 
effect. People just don't want to come through that area 
because they can't afford to be 60 days without work, and 
that's those that just come to work and not commit a crime.
    The question I have, and I would appreciate a written 
answer, really, because we have a lot of information from the 
chief judge of the Arizona District Court for that area, about 
what they need to process this many people, is your estimates 
of the costs that the Congress can help defray for the entire 
tale of the judicial process from the additional court space, 
the judges, the magistrates, the marshals, the clerks, the 
prosecutors, the public defenders, and, perhaps most 
importantly, the detention space itself.
    What would be needed to ensure that this kind of program 
could continue in Yuma and could be fully implemented in the 
Tucson sector, and anywhere else along the border that you 
think it should, and what do you think about the program?
    Secretary Chertoff. First, let me say I think the program 
is a great program. To be clear for the public, this is more 
than just detention. We do detain everybody, as it is under 
immigration authorities, until we deport them. This is actual 
criminal punishment, which does have a remarkable deterrent 
effect and it's worked very well in the Del Rio sector.
    As far as the money, I'm delighted to answer. I'm going to 
need to have the Department of Justice really put the facts 
together, because it's really their stuff rather than mine.
    Senator Kyl. Thank you. Thank you. I'll make that inquiry 
of them.
    But Congress has, over the last 3 years, at least, been 
very willing to fund whatever works. It seems to me that this 
is one of those things that clearly works, and I do know that 
there is additional funding that will be required for this.
    Is there sufficient money for the remainder of 2008 to 
achieve the fencing requirements that you identified in your 
opening statement, and does the budget for 2009 reflect an 
adequate sum to do the remainder of the work in 2009?
    Secretary Chertoff. The answer to that is yes. The money 
that's appropriated in 2008, already appropriated, is 
sufficient to get us through what we need to do this fiscal 
year. The money we've requested for 2009 would get us to what 
we need in 2009, but of course that hasn't passed yet, so that 
depends on Congress.
    Senator Kyl. Thank you.
    With regard to the exit-entry system--Senator Feinstein 
talked a little bit about this--on page 15 of your testimony 
you talked a little bit about this. First of all, can you 
describe the process when it becomes apparent that an 
individual has not exited, but should have by then? What 
actually happens in terms of notifying other law enforcement so 
that whoever might have an opportunity to inquire of the 
individual in terms of law enforcement authority, a highway 
patrolman in some State, or whoever it might be, would actually 
have the information enabling them to know to ask the 
appropriate questions?
    Secretary Chertoff. I think the answer is that under the 
current system we have some, but not complete, information on 
this at our law enforcement center up in--I think it's up in 
Vermont, where if you apprehend someone you can call and get 
information. But we have not yet fully automated it. To do 
that, we need to move from the current biographic-based system 
which looks at names to a biometric-based system which is 
fingerprints. That is, of course, US-VISIT air exit.
    Now, I would very much like to do this this year. We can 
get it done by next summer, but there's one obstacle: the 
airlines are bitterly opposed to it. I know they've been up 
here complaining about it, because they view the requirement of 
giving fingerprints, if you're a foreigner, when you leave the 
country, as interfering with their business model. This, 
Senator, goes right back to the point we made earlier about 
willpower. We can get it done. We're poised to issue a rule. 
But it will require the willpower to face down the airline 
industry in order to implement it.
    Senator Kyl. I appreciate that. Why doesn't the 
biographical information itself--if, for example, you have a 
name and then any other identifying feature, a Social Security 
number or a birthplace, whatever it is, if that information is 
sent to all of the local police, highway patrol, and elsewhere, 
wouldn't that be a significant improvement over the lack of any 
information today?
    Secretary Chertoff. I think it's--I don't know if I'm that 
well versed in the technical element, but I think simply 
sending a list of that all over the place would, I think, be 
really inefficient. I'd like to see us move to a system where, 
when you get the over-stays--right now it's a system where we 
know when you leave.
    If we could get it all integrated in a data base, 
particularly with a fingerprint data base so there was a unique 
identifier, we could then construct an automated system that--
and I think we have it partly now, but not entirely--kicks out 
when you are, let's say, over 90 days or whatever it is, or a 
week over 90 days. That could then be in our data base in 
Vermont and anybody who wanted to ping it could ping it if they 
arrest somebody. It would be up to the local law enforcement.
    So I think we have this partially in effect now, but I'm 
not confident that we have it seamlessly or fully in effect. 
Some of it is an automation problem, but some of it is that, in 
general, a names-based system is not as reliable as a 
fingerprint-based system.
    Senator Kyl. Well, understood. But, you know, Mohammed 
Attah, for example, was stopped, I believe it was twice. If he 
had used his name--and I gather he did--if law enforcement had 
had a place to call in, then a whole lot of things might not 
have happened that ended up happening. It just seems to me that 
perfection shouldn't be the enemy of the good here.
    Secretary Chertoff. I agree. I agree. We're going to be 
working toward this, I agree with you. I just want to make sure 
that we do it in a way that's cost-effective so we don't waste 
money. That's the only other constraint.
    Senator Kyl. Well, let me just ask one final question here. 
If it's in the Vermont data base, what would be necessary for a 
local law enforcement, or say highway patrol, to gain access to 
that data base in a real-time way, like a traffic stop?
    Secretary Chertoff. I think they call in. I don't know 
whether they go in online or whether they call in, but there is 
a way they can communicate in. And they use it. The system does 
yield benefits. The reason I'm a little hesitant, is I'm not 
sure it is a complete system. It may depend upon what we input 
as opposed to something that's fully automated.
    Senator Kyl. Would you, for the record, expand on that?
    Secretary Chertoff. Yes, I will.
    Senator Kyl. Have your office give us a more complete 
answer on that.
    Secretary Chertoff. I'll give you a more complete and maybe 
a more--I'm not fully confident in my answer, so I want to give 
you a verified answer.
    Senator Kyl. I appreciate that very much. Thank you.
    And I thank my colleagues.
    Chairman Leahy. Thank you very much.
    Senator Schumer?
    Senator Schumer. Well, thank you. And, first, Mr. Chairman, 
I want to thank you for having these hearings, which are very 
important. I appreciate Secretary Chertoff being here.
    First, I'd like to start off with some questions on border 
security. As a New Yorker, as an American, I have an unshakable 
commitment to securing our country from those who want to harm 
us. However, when it comes to border security, as you know, Mr. 
Secretary, I've sometimes differed with DHS on the best way to 
achieve the goal.
    First, I want to thank the Department for their little-
noticed, but important regulation that said that they were 
going to comply with the law that Senator Leahy and others put 
into effect to delay the passports until 2009. I just want to 
say that I appreciate, Secretary Chertoff, your efforts to work 
with New York State to develop an enhanced driver's license 
that can be used instead of passports to cross land borders in 
Canada.
    I think the licenses, the enhanced licenses, building on 
REAL ID, something I've always supported, is a very good 
alternative that gives us both security, but makes commerce 
easier. If they're done right, they can assure both. I want to 
tell you, I've spoken to Governor Patterson. I know we had had 
meetings that I had set up between you and Governor Spitzer, 
which myself Senator Clinton, Congressmen Reynolds and 
Slaughter attended, and now we have Governor Patterson. I know 
he fully supports the development of enhanced licenses.
    I understand the process is going well, from your 
Department and from New York State's point of view. New York 
has submitted a business plan for your Department's approval. 
The goal is rolling out the new licenses State-wide by the late 
summer, and focusing on the border areas first--Buffalo, 
Watertown, Plattsburg, places that really have the need.
    So to move forward, New York is going to need a timely 
response to their proposed plan. When can you commit to giving 
a response to New York's business plan for enhanced driver's 
licenses?
    Secretary Chertoff. I can't give you a precise date. We 
will do it promptly because we've already--you know, not only 
did we approve the State of Washington, they've actually begun 
the process of issuing them.
    Senator Schumer. Right.
    Secretary Chertoff. They've issued 6,500.
    Senator Schumer. Right.
    Secretary Chertoff. So we'll do it as fast as we can.
    Senator Schumer. Do you think within the next month we can 
get an answer? Our goal is to get this going before 2009.
    Secretary Chertoff. I believe the answer to that is yes. 
I'm going to have to verify that.
    Senator Schumer. OK. If you could verify, but I'll take it 
as a tentative yes, which I appreciate.
    Secretary Chertoff. I certainly like you doing that.
    Senator Schumer. Right.
    Secretary Chertoff. There's no reason we shouldn't be able 
to.
    Senator Schumer. Now, if you have concerns with New York's 
plan, will you commit to working cooperatively and productively 
with New York to resolve concerns rather than sending us back 
to square one?
    Secretary Chertoff. Oh, absolutely. We want this. We think 
this is a good thing. This is--there's a unity of interest 
here.
    Senator Schumer. OK. And will you commit to just doing 
whatever you can so that we can start issuing the licenses, as 
we hope, by the end of the summer?
    Secretary Chertoff. Absolutely.
    Senator Schumer. Right. OK.
    And do you agree with me that enhanced driver licenses, if 
done right, will be just as secure for border crossings as 
passport books?
    Secretary Chertoff. Absolutely.
    Senator Schumer. Good.
    Secretary Chertoff. For land borders.
    Senator Schumer. This is a very good interchange. We don't 
have so many of those these days.
    So wouldn't it make more sense right now for DHS to focus 
limited resources on driver licenses--it provides better 
security and efficiency--as opposed to a new rule that requires 
birth certificates at the border, which, in the past, you had 
even said was not the best way to go about doing this?
    Secretary Chertoff. Here's the problem. The problem is that 
I believe that next June--not every State is going to want to 
do the license. I think by next June we can easily be in a 
position to meet the requirements of the Western Hemisphere 
Travel Initiative. The problem I have is that I've got to deal 
with the period of time between now and next June.
    As I said in the opening statement, just a couple of weeks 
ago we found a guy coming through Buffalo trying to make an 
oral declaration, discovered that that wasn't going to work 
anymore, got pulled into the secondary, and we discovered he 
was masquerading as an American citizen. He'd been rejected 
coming into the country in Mexico. He had been previously 
removed. So I'm trying to plug a gap now in the interim between 
where we sit and June 2009, but I very much want to see us, in 
June 2009, with an enhanced driver's license. For any State 
that will do it, we'll be happy to do it.
    Senator Schumer. Right. And New York does, Washington does.
    Secretary Chertoff. Right.
    Senator Schumer. I mean, the worry here is this summer when 
the traffic over the borders increases. You have all kinds of 
vacationers. We in New York State expect a lot of Canadians 
coming, given the values of the dollar, to help our tourist 
season. We're worried that if they think it's going to be very 
onerous--so far it hasn't.
    Secretary Chertoff. Right.
    Senator Schumer. And, you know, when they say they don't 
have a birth certificate, you just give them a warning.
    Secretary Chertoff. Well, the Canadians are--I mean, we've 
had to get their attention, too. The Canadians are now putting 
money into their budget for increased distribution of Nexus 
cards, which I know you know is also acceptable.
    Senator Schumer. That's fine. Yes.
    Secretary Chertoff. So, you know, we're working through the 
process. But we do have to deal with an existing act.
    Senator Schumer. I would just urge you to focus fully on 
driver's licenses. The birth certificates, in my judgment, are 
going to be a dead end.
    Anyway, let me go to something else, which is citizenship 
backlogs, which I know the Chairman and Senator Kennedy have 
asked questions about. I just have a few more because, as you 
know, we received a letter from CIS which explained the status 
of naturalization applications pending with CIS.
    The letter states, ``Historically, there have been 
increased filings in advance of fee increases, Presidential 
elections, immigration debates, and new legislation.'' Now, 
given that DHS is aware of trends in application filings, how 
is DHS credible in saying it couldn't have anticipated a major 
surge in applications in 2007, where we saw a fee increase, the 
start of a Presidential campaign, and a national immigration 
debate all at once?
    Secretary Chertoff. I would say, if we go back 
historically, in 1999, which was the last major increase, there 
was a bump-up of about 30 percent. It was the magnitude. The 
bump-up here was over 100 percent. So, that was one. I think 
the magnitude startled everybody. But the larger problem is 
this. In order to deal with the mass of people, you need to 
hire adjudicators and people to deal with the work.
    Senator Schumer. Yes.
    Secretary Chertoff. Until you get the fee increase you 
can't hire them, because you can't hire people if you don't pay 
it. Then once we got the fee increase, we began to hire, but 
they still have to be trained. So, inevitably there is some lag 
that occurs when you--until you get the money in the pipeline--
    Senator Schumer. Let me interrupt you here for a minute 
because my time is running out. I understand the training. I 
would like to see even a sort of program where, out of the 
general fund, people could be hired in anticipation of the fees 
coming in, because we can't wait.
    But let's just talk about the training. Last year, as you 
know, I pushed CIS. I pushed to have CIS get authority to re-
hire retired workers--they don't have to be trained, they've 
been doing this for years, and often decades, very well--to 
help address the backlog. That was in December. I regret to say 
it's now April and not one has been hired. We called in the 
former head of CIS, who had very poor--he's no longer there. He 
resigned the same day we talked to him, although he didn't tell 
us that he was resigning.
    But he had very poor answers in terms of contacting people. 
There were 700 people that they'd identified. They sent them a 
letter. There was no followup. These people are invaluable, 
because some of them would want to get back to work. Now we've 
made it so that they don't get their pensions cutoff or 
anything by coming back and working till you can train the new 
workers. Can you give us some assurances about the retired 
workers and going all out to hire them as quickly as possible, 
particularly -
    Secretary Chertoff. Let me find out.
    Senator Schumer.--when we have the Presidential election 
coming up soon.
    Secretary Chertoff. Let me find out about that. I wasn't 
aware there was a problem rehiring them. I know that our 
estimates about the number of people we can process have gotten 
better. We've had a higher and higher projection as time has 
gone on. Again, as I said earlier, I would like to process as 
many people as we can, consistent with, obviously, security. 
So, I'll find out about that.
    Senator Schumer. Could you get back to me?
    Secretary Chertoff. Yes.
    Senator Schumer. Because to not hire one retiree, when I 
know there are many who want to come work and they don't need 
the rehiring, that's the, at least, most immediate answer. I 
think the Department is sort of twiddling its thumbs.
    Secretary Chertoff. I'll find out the answer.
    Senator Schumer. Thank you.
    Mr. Chairman, thank you.
    Chairman Leahy. Thank you, Senator Schumer.
    Senator Sessions?
    Senator Sessions. Mr. Secretary, thank you for your 
service. I think you're one of the most able members of the 
President's cabinet. I've known you for a number of years and I 
highly respect you and your capabilities.
    I do believe that this administration has been less than 
fully committed in terms of will to creating a lawful system of 
immigration in our country and eliminating some of the border 
problems, and you and I have had discussions about that. But 
you have made some progress.
    First, I'll ask you about that. Arrests were down 20 
percent last year. Just for those who may not understand, the 
year before we arrested 1.1 million people entering our country 
illegally, and that reduction took us down to about 870,000. 
That is 20 percent.
    Do you think that is a reflection on the number of people 
who are attempting to enter the country also?
    Secretary Chertoff. I do. It's not a perfect reflection, 
but we also validate it by looking at other measures, like 
activities south of the border and things of that sort. So I'm 
comfortable, I'm persuaded, that it is, in general, a 
reflection of the decrease in efforts to come across.
    Senator Sessions. Some of that, I think, is because we've 
sent a message to the world that the border is no longer open. 
We've had the National Guard there, although I'm very 
concerned, and I think the Governors of California and New 
Mexico also, of the removal of the National Guard that will be 
occurring this summer and the increased enforcement in fencing, 
and barriers, and Border Patrol, all of which work, and the 
prosecutorial policy in those four districts seems to be 
working.
    So those are things we know work. The question is, will we 
follow through and continue to see another reduction, and 
another reduction? Certainly in my own view, this Nation could 
easily get to an 80 percent reduction in illegality at our 
borders in the next few years if we have, as a Nation, the 
commitment to do so.
    There are some questions that have been raised about your 
waiving environmental rules so that these barriers could be 
constructed at the border. We realize in Congress, when we 
passed the Fencing Act, that these lawsuits could delay 
indefinitely.
    I would note that you have a letter sent to you from the 
Secretary of Interior, the Associate Deputy, saying that, 
``Because our visitors and employees are at risk, we had to 
close off substantial portions of Department of Interior lands. 
The infrastructure will improve the security of our lands and 
increase the safety of both our visitors and our employees. 
Finally, these pedestrian and vehicle fences will decrease some 
adverse environmental effects of the illegal activities upon 
the fragile plant and animal communities located within the 
Interior lands.''
    So the Department of Interior has indicated it will 
actually help the environment by reducing this broad traffic 
that's occurring there.
    Secretary Chertoff. That's correct.
    Senator Sessions. They sent that to you.
    Secretary Chertoff. Yes.
    Senator Sessions. That was part of your decision-making 
process.
    Secretary Chertoff. Correct. And I've also discussed this 
with the Secretary. So, I mean, we had a discussion over months 
about this issue.
    Senator Sessions. Well, we realized from the beginning that 
if we intended to move decisively on barriers at the border, 
lawsuits of this kind would have to be taken off the table.
    On the E-Verify, some 58,000 employers now utilize this 
computer system to verify the person's Social Security number 
that they're hiring before they hire. I understand 1,000 per 
week employers are signing up.
    Secretary Chertoff. Right.
    Senator Sessions. Tell us about the accuracy of that, 
briefly. Are there benefits for innocent people, legitimate 
people, when a ``no match'' occurs?
    Secretary Chertoff. I gave you some figures earlier. Now 
I'm actually--I've reminded myself, I think actually the 
figures--those might be slightly out of date. They've actually 
gotten better.
    Basically, inaccuracies, where there's actually a mistake 
in the system, are less than 1 percent, and those get resolved. 
What we find is that about 95 percent, I think is the most 
recent figure, get immediately validated through the system on 
the spot. Then of the remainder, there's a very small number 
where there is a mistake and it's rectified.
    Of course, there are some where there's not a mistake and 
those people, not surprisingly, just fade away because they 
realize that their Social Security number isn't valid. We are 
enhancing the system by giving people the capability with 
certain kinds of documents, Federal documents, to also verify 
with a photograph that the underlying document is, in fact, 
accurate and matches our data base, and that makes it even a 
more useful system.
    This is not a cure-all because it doesn't necessarily catch 
the person who steals a legal person's identity, so that 
remains a vulnerability we're trying to deal with in other 
ways. I do want to take the opportunity, Senator, to again 
plead to have this reauthorized. The authorization runs out 
this year. Everybody wants it. Let's enable those who want to 
obey the law to do that.
    Senator Sessions. Thank you. There's no doubt that we 
should reauthorize it. In fact, we should require it and move 
forward with that. It would be one of the most significant 
steps this Nation could take. But a lot of employers apparently 
are quite willing to do this when asked. It's certainly a 
minimal disruption of their business. I think they are given 
their information within seconds, or minutes, of the inquiry.
    Secretary Chertoff. Correct.
    Senator Sessions. It's not going to delay the employment. I 
would offer for the record, Mr. Chairman, a letter from the 
Governor of Arizona, Janet Napolitano. She says this about the 
National Guard: ``We continue to remove, and eventually 
terminate, a successful program using the National Guard in our 
border Operation Jump Start. I urgently request that you 
reconsider the drawn-down of Jump Start and instead retain 
National Guard personnel strength and numbers necessary to 
maintain the hard-won improvements and operational controls of 
the international border.''
    Mr. Secretary, first, I'll offer that for the record.
    Chairman Leahy. Without objection.
    Senator Sessions. And, second, are you concerned about the 
removal of the Guard at the border under the current law?
    Secretary Chertoff. Senator, when we started this 2 years 
ago we had about 11,300 Border Patrol. The understanding was, 
we were going to have 6,000 Guard. They were going to drawn 
down over 2 years as we matched them, basically, one-for-one 
with our Border Patrol. By the time we do the draw-down in 
July, we will be at about 16,500, so we will essentially have 
added 5,000 Border Patrol, a little over 5,000 Border Patrol, 
to replace the National Guard that have been pulled off.
    I should also say that we have always, and will continue 
to, use National Guard not just--not under Jump Start, but 
under routine training, so you will continue to see National 
Guard at the border, but it won't be under this program and it 
won't be in the same number.
    I am confident that we have the personnel in place so that, 
as of this summer, we will essentially be pretty close to one-
for-one replacement of National Guard with Border Patrol. All 
things being equal, a Border Patrol agent is more effective 
than a National Guardsman because they can do more things.
    We are also using--
    Senator Sessions. But you would have to admit, would you 
not, it would reduce your capability because even though you're 
bringing on Border Patrol agents, the Guard is providing--
    Secretary Chertoff. It surely provides a capability. But--
    Senator Sessions. Capability that would be lost. My time is 
about out. I would offer, Mr. President, an article in the New 
York Times, March 28, indicating that there are 304,000 
immigrant criminals eligible for deportation that are behind 
bars, in jail today. Senator Specter asked you some about that. 
If you need additional money--
    Chairman Leahy. It will be made part of the record, without 
objection.
    Senator Sessions.--I would ask that you ask for that. I 
mean, it's just fundamental that we follow through on that 
requirement.
    Secretary Chertoff. I think we have asked for money and I 
think we have a strategy that we have presented to the 
appropriators for this.
    Senator Sessions. Well, I hope that you will.
    Chairman Leahy. Thank you, Senator.
    Senator Whitehouse?
    Senator Whitehouse. Thank you, Mr. Chairman.
    Mr. Secretary, thank you for joining us today. Just 
quickly, of the 304,000 that were discussed, how many of those 
folks eligible for deportation are presently Federal inmates?
    Secretary Chertoff. I don't know the answer to that. I'm 
sure only a fraction are. I'm sure most of them are--
    Senator Whitehouse. Well, presumably a very small fraction.
    Secretary Chertoff. Yes.
    Senator Whitehouse. But if you could get that number, I 
would appreciate it.
    Secretary Chertoff. Sure.
    Senator Whitehouse. In terms of our evaluation of that 
question, you've indicated that there are concerns about the 
treatment of the inmate in the host country if they were to 
return, particularly being subject to torture. That would be 
one concern. Another concern, I assume you would agree, would 
be inmates who are so dangerous, that we'd rather keep them 
locked up tight in the United States rather than face the risk 
of reentry if we don't have confidence in the security of the 
system in the home country, major heads of drug-dealing 
organizations and things like that.
    Secretary Chertoff. Well, I guess, yes, if you have a 
really bad guy. If we got a sentence that's a life sentence, 
I'd rather keep him locked up for life than send him out, 
unless I'm confident that the host country will let this--
    Senator Whitehouse. Yes. So that will be an issue.
    Are there reciprocality issues? Would you be concerned that 
Americans would be--we'd have to treat, say, a--
    Secretary Chertoff. No. No. I don't want to over--the issue 
of torture is a very small number.
    Senator Whitehouse. I understand.
    Secretary Chertoff. So that's not a big issue.
    Senator Whitehouse. Lots of issues.
    Secretary Chertoff. The largest issue is, frankly, some 
countries are just very dilatory about taking their people 
back. China is really the worst in that respect.
    Senator Whitehouse. Yes.
    Secretary Chertoff. Interestingly, the Latin American 
countries are quite good, and we work with them and they're 
very effective in taking their people back.
    Senator Whitehouse. And has the experience been that if 
they're released into those systems, they actually are kept?
    Secretary Chertoff. It hasn't been uniform. Sometimes, 
unfortunately, some of the countries in Latin America don't 
have the capability, and we try to work with them. We've given 
them assistance in identifying people who are being sent back 
who are dangerous so they can try to keep them in jail. But 
once they serve their sentence, as you know, we can't just keep 
them in jail. The host country can't keep them in jail. That's 
a problem. That is a problem for us.
    Senator Whitehouse. And would you have any problem 
incarcerating, in the United States, an American who was 
convicted of a foreign crime in a foreign country and deported 
from that country for an immigration violation on the same 
terms that we're talking about in which we would deport foreign 
nationals subject to incarceration in their home country to--
    Secretary Chertoff. I think it has to be done by treaty. In 
other words, we have these prisoner exchange treaties. I know 
with Mexico, for example, if you get a 20-year sentence in 
Mexico, we have an arrangement where you can, as a U.S. 
citizen, serve your time back in the U.S., and vice versa. I 
think if someone were deported without that, we would have 
trouble putting them in jail unless we could prosecute them 
under our own laws.
    Senator Whitehouse. So the treaty would be a key component.
    Secretary Chertoff. That's right.
    Senator Whitehouse. OK.
    Secretary Chertoff. And we have that, I know, with Mexico.
    Senator Whitehouse. On a different subject, are you 
familiar with the OCDETF program?
    Secretary Chertoff. From my last job, it's dimly implanted 
in my mind, yes.
    Senator Whitehouse. Familiar enough to describe it briefly 
for people who are listening and don't know what we're talking 
about?
    Secretary Chertoff. My knowledge may be out of date. Back 
when I was head of the Criminal Division when I was a 
prosecutor, it was an Organized Crime Drug Enforcement Task 
Force. It was designed to bring together Federal and State 
authorities to focus on, you know, more organized narcotics 
trafficking organizations.
    Senator Whitehouse. And it's still going and very active 
and very helpful in your estimation, is it not?
    Secretary Chertoff. I have--to the extent I know. But I 
have to say I don't have a lot of visibility into it.
    Senator Whitehouse. Yes. The Fusion Center program that the 
administration has embarked on in a variety of different areas. 
Are you familiar with that?
    Secretary Chertoff. Yes.
    Senator Whitehouse. There is evidently an OCDETF, to use 
one term, Fusion Center, to use another, not far from where 
we're sitting right now whose function is to fuse, to bring 
together, information from a variety of Federal law enforcement 
agencies to enhance the mission of protecting us from organized 
criminal organizations that traffic in narcotics.
    I am informed that the Immigration and Customs enforcement 
folks refuse to participate in it, won't send someone to the 
meetings, won't like data bases to what is called the Compass 
program, which is the computer network set up for the Fusion 
Center to integrate ATF, FBI, Secret Service, all the different 
law enforcement computer data bases. I'm interested--and I 
understand that the Border Patrol is now beginning to look at 
participating, but to date hasn't. Since those are both DHS 
agencies, I'm wondering if you know why they're refusing to 
participate in this function.
    Secretary Chertoff. I had not heard that, so I'll just have 
to find out.
    Senator Whitehouse. Would you?
    Secretary Chertoff. Yes.
    Senator Whitehouse. Because I think it makes sense. Between 
the two of us, we can agree that if the purpose of the OCDETF 
function is to protect this country from organized criminal 
efforts to engage in narcotics trafficking, the Border/Customs 
function is a pretty darned essential part of that equation.
    Secretary Chertoff. Oh, there's no question about it.
    Senator Whitehouse. And when you have Treasury agencies, 
Justice agencies, and all sorts of other kinds of agencies--and 
you and I both remember--I was a U.S. Attorney, as you may 
recall--it can be pretty complicated to chase through multiple 
data bases if you had to find a particular individual. To 
coordinate those in these Fusion Centers seems like a pretty 
good idea.
    Secretary Chertoff. I don't disagree with that. I just 
don't know enough about the specifics to give you an answer. 
But I'll find out about it.
    Senator Whitehouse. If you could find out why they're 
refusing to participate, and if there's a reason that they 
aren't doing it, I'd like to try to get through that reason.
    Secretary Chertoff. Sure.
    Senator Whitehouse. If there's no reason, if you could 
clear whatever bureaucracy.
    Secretary Chertoff. I will. I will look into that.
    Senator Whitehouse. If you could let me know when you'll 
get back to me.
    Secretary Chertoff. OK.
    Senator Whitehouse. Thirty days? Sixty days? Ninety days? 
Pick a number. Any time is good for me, just so I know.
    Secretary Chertoff. Why don't we say 45 days?
    Senator Whitehouse. Forty-five days. I'd appreciate it, Mr. 
Secretary.
    Secretary Chertoff. Sure. I will do that.
    Senator Whitehouse. Thank you.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Cornyn?
    Senator Cornyn. Thank you, Mr. Chairman.
    Mr. Secretary, it's good to see you. Thank you for your 
service. I agree with Senator Kyl, you've got perhaps one of 
the most difficult jobs in the President's cabinet. But I think 
you've done an outstanding job. I appreciate your working with 
me and my constituents in Texas. I want to go into that in just 
a little bit here.
    First, let's talk about the Secure Fence Act. On September 
29, 2006, it passed by a vote of 80 to 19. Interestingly, all 
of the potential nominees for President of the United States 
voted ``aye''. Of course, it passed with strong bipartisan 
support.
    I, frankly, felt like it needed some additional 
modification. Senator Hutchison and I sponsored an amendment 
that required consultation with local land owners and community 
leaders, and you've been very good about doing that 
consultation. I want to talk about that in just a second.
    But first I want to also relay some statistics with regard 
to the work you've done to try to get voluntary cooperation 
with local land owners in my State. As you know, unlike some of 
the other States on the border, Texas is largely private 
property. Frankly, a lot of these landowners have told me 
they're afraid to go out on their own ranch unprotected because 
of criminal activity occurring, coming across the border, 
particularly associated with narco-trafficking, and the like.
    But out of 414, I believe, land owners along the Southwest 
border that have agreed to access by the Department of Homeland 
Security, only 46 have refused access, roughly 10 percent. Of 
course, we know that there is litigation occurring in some 
cases. I'm glad to see that there are negotiated settlements 
occurring, particularly with institutions like the University 
of Texas at Brownsville, to try to work out something that 
makes sense.
    I had mixed feelings about the Secure Fence Act because I 
didn't want anybody to be under the misimpression that by 
building fencing we would resolve our border security problem. 
I know of no fence built by the hand of man that could not be 
scaled, could not be tunneled under, could not be gone through, 
so that's why I voted for it. I would note that despite those 
who criticize it today--and frankly, a lot of them are in my 
State along the border who don't like the idea of fencing--
there has been no attempt to try to repeal the fence 
requirement.
    For myself, I supported it because the Border Patrol told 
me they thought they needed it. Our professional law 
enforcement officials, if they tell me they need something, 
just like our troops in Iraq or Afghanistan, if they tell me 
they need something in order to do their job, then I'm going to 
support it. But I think it's simplistic to think that, by 
building a fence, we're going to solve all of our border 
security problems.
    You testified about the need for more Border Patrol. I'm 
glad to know that we've trained roughly 16,000. I would note 
there are 40,000 police officers in New York, roughly, so we're 
still lagging. I know it takes time but I think we've made some 
progress. Technology obviously is very important. You've talked 
a little bit about that. But I believe only a combination of 
boots on the ground, technology, and tactical infrastructure or 
fencing in hard-to-control places are we going to have an 
opportunity for success along the border.
    But I want to mention specifically your work in Hidalgo 
County and the Rio Grande Valley in Texas. You were good to 
come down for a recent press conference and announcement where, 
as a result of the local consultation with officials in that 
area, we've been able to accomplish what I would not have 
believed possible--that is to take something as controversial 
as this Secure Fence Act and to come up with a win-win 
situation. As you know, that involves the dual use of the 
improved levee system, which is a Federal Government 
responsibility down in Hidalgo County.
    And let me just read a quotation to you from the county 
judge of Hidalgo County. He said, ``Hidalgo County has been at 
the forefront of the border fence issue from day one, pushing 
our elected officials in Washington to listen to community 
concerns and formulating a strategy to protect the residents of 
Hidalgo County from floodwaters, while accomplishing the plans 
of the U.S. Department of Homeland Security to protect our 
Nation's borders. It's a good day when Washington listens and 
responds to our needs. Hidalgo County appreciates the 
opportunity to continue consultations with DHS to make our 
community safer and more attractive to future smart 
development.'' That's a quote from County Judge J.D. Salinas of 
Hidalgo County, as you know.
    So, I applaud the work that you have done and that you've 
been willing to do to meet us half way. I would also note that 
there are other things that we've been working on with the 
Department of Homeland Security: carrizo cane eradication, 
which will enhance the natural barrier that the Rio Grande 
River presents. It will provide greater visibility and access 
for Border Patrol in the hard-to-control locations.
    I think it's a good example of how communication, 
cooperation, and consultation, particularly with those most 
immediately affected at the local level, can result in a 
positive outcome and one which, unfortunately, seems like it's 
too rare these days. So, I think we ought to celebrate when 
they happen.
    Secretary Chertoff. I want to thank you, Senator, and also 
Senator Hutchison and Congressman Cuellar for working with us 
and helping us, and really the community was tremendous about 
not just coming up with a proposal, but coming up with their 
resources to cover their part of it. It is a win-win where we 
can solve two problems with the same effort.
    Senator Cornyn. Let me just ask you, since time is running 
out, about the Meridia initiative. I realize this is perhaps, 
not strictly speaking, all in your bailiwick. But, of course, 
this is a proposal by the administration to provide $1.4 
billion in funding to Mexico to help with security in the 
Southwest border area. No funds have been appropriated yet, 
though the Bush administration requests funding for both, in 
fiscal year 2008, the Global War on Terror Supplemental Funding 
request, and the fiscal year 2009 budget.
    I have heard from a number of my constituents, law 
enforcement personnel, sheriffs, and the like, who would like 
the Federal Government to provide them some assistance so they 
can do their job. I would note that Governor Perry and the 
Texas legislature have been fairly generous about stepping up 
to fill the gap along the border in terms of border security 
efforts.
    But, frankly, this is a Federal responsibility and some of 
my constituents, law enforcement personnel, are scratching 
their heads, wondering why the U.S. Government would give $1.4 
billion to Mexico for its security efforts when it's unwilling 
to fund, in a supplemental fashion, local law enforcement's 
efforts to fill that gap while the Federal Government catches 
up.
    So I would just ask for you to work with us as this 
proceeds. I'm going to ask other cabinet secretaries, General 
Mukasey and others, for their cooperation because I think my 
constituents have got a very good point. We need to keep our 
commitments to law enforcement officials on this side of the 
border, while we also need to do everything we can to support 
President Calderon and his effort to combat the violence, 
particularly among the drug cartels in Mexico. But Texas law 
enforcement officials have a good point, and I'd like to work 
with you on that.
    Secretary Chertoff. I agree. If I could just address this 
for one moment. I know it's a little over the time. But 
obviously we have money which we've made available for locals 
through Operation Stone Garden. This Meridia initiative is very 
important because the President of Mexico is putting enormous 
effort, at considerable risk, to tackling these drug gangs and 
these smuggling organizations which are located in Mexico.
    Of course, as you know from your experience with law 
enforcement, as you know, Mr. Chairman, the best way to strike 
at a criminal organization is not the tentacles, but the head. 
So we've got to enable the Mexicans to do their part in 
controlling criminal organizations that threaten their 
government and threaten us. I think this is a terribly 
important national security program for both countries.
    Senator Cornyn. Mr. Chairman, I know we all are perhaps 
most focused on our own States, but have a national awareness 
of law enforcement challenges. But I will tell you that there 
is a huge problem along the border region because of the drug 
cartels battling it out, kidnappings, and assassinations of 
local law enforcement officials.
    Chairman Leahy. I read some of the press accounts of that. 
It's almost unbelievable in this day and age that such things 
go on. It's a legitimate question you ask. It's not being 
parochial at all when this is happening on your own border.
    Let me ask a question along that line on the northern 
border. We're short on CBP agents along northern borders, 
especially States like my own Vermont. What steps are being 
taken to fill these staffing shortages along the northern 
border? In fact, we even have full staffing at all of our 325, 
326 ports of entry.
    Secretary Chertoff. If you look back over time, we've been 
steadily increasing the number of Customs and Border Protection 
officers at the northern border. This past year we added about 
150 additional officers, and we've got money in the 2008 and 
2009 budgets to increase the number of inspectors. We're also 
going to move one of the unmanned aerial vehicles up to the 
northern border to patrol along there. I think by this summer 
we'll have our fifth air wing up.
    Chairman Leahy. In particular, what 100? Your target, the 
promised target is short about 100?
    Secretary Chertoff. We're at 3,396 officers currently, so I 
think we'd like to get somewhat more than that. But I think 
we've gone up in the last few years by about 1,000.
    Chairman Leahy. When do you expect to have full staffing at 
all official ports of entry?
    Secretary Chertoff. I don't know the answer to that. I'll 
have to get back to you.
    Chairman Leahy. The reason I ask, is in your budget, you 
requested $4 million to install permanent Border Patrol 
checkpoints far, far from the border on Vermont highways. This 
was brought back to me yesterday when one of our veterans' 
organizations, a man who lives up on the Canadian border, goes 
down to a VA hospital to help our veterans basically as a 
volunteer. He drives from the Canadian border, drives a couple 
hours and he gets stopped. This happened a number of times. He 
gets stopped at your border crossing on Interstate 91 in 
Vermont. He hasn't crossed any borders. A lot of Vermonters 
suffer the same thing. Is there any--it seems like kind of a 
cockamamie thing. If you're trying to catch immigration 
violators, how does this do it?
    Secretary Chertoff. Yes. Well, first of all, let me say, 
right now we're using--we don't have enough people up on the 
border. Right now, we're using a temporary checkpoint. I don't 
think there's a--
    Chairman Leahy. You've asked for $4 million to install a 
permanent checkpoint.
    Secretary Chertoff. I don't think there's a current plan to 
put a permanent checkpoint in that location.
    Chairman Leahy. Then why did you ask for the money?
    Secretary Chertoff. I don't know whether this refers to 
this location or someplace else, but I'm told the Border 
Patrol, right now, is still envisioning operating temporarily. 
But let me make sure.
    Chairman Leahy. Well, they're sure acting like it's 
permanent. And not under your watch, but I told you about my 
own frustration, never leaving the country and being stopped 
hundreds of miles from the border. They made me step out of my 
car and prove my citizenship. The license plate, that's No. 1, 
says ``U.S. Senator'' on it. It certainly has no influence, and 
I understand that. I shouldn't be treated any differently than 
anybody else.
    But I also see Canadian families--you know, families--that 
are coming down there, coming down to visit our country, and 
they're being made to take their suitcases out, children 
crying, everything else. It just seems like, my God, what are 
we doing?
    Secretary Chertoff. Let me--let me--
    Chairman Leahy. Does this really make us safer?
    Secretary Chertoff. The answer to that is yes, and I'm 
going to give you--
    Chairman Leahy. Good. These families are certainly going to 
be encouraged to do everything they can to point out people 
that may hurt our country.
    Secretary Chertoff. Let me give you facts and figures. In a 
1-week period in November, 2007 when we had the checkpoint open 
in Swanton, we apprehended 23 illegal aliens.
    Chairman Leahy. Swanton is on the border. I'm talking about 
something that's about--
    Secretary Chertoff. No. But in the sector.
    Chairman Leahy.--a 3-hour drive from the border.
    Secretary Chertoff. This I-91 temporary checkpoint, which 
is about 100 miles from the border, apprehended 23 people at 
the checkpoint.
    Chairman Leahy. Apprehended for what?
    Secretary Chertoff. Well, I'll go into some of the 
examples.
    Chairman Leahy. Well, give me the--how many of them were 
for immigration violations?
    Secretary Chertoff. Well, there were 23 immigration 
violations and--and again, this is limited to a 1-week period--
    Chairman Leahy. Had they crossed the border?
    Secretary Chertoff. Pardon? Yes, they crossed the border.
    Chairman Leahy. Then why weren't they caught at the border?
    Secretary Chertoff. Because--
    Chairman Leahy. You all have people down at the other end.
    Secretary Chertoff. Because we don't necessarily get 
everybody at the border. As you know, sometimes people cross 
the border between the ports of entry, but they wind up 
funneling through the checkpoint and we pick them up at the 
checkpoint.
    Chairman Leahy. So we're stopping tens of thousands of 
Vermonters to get these handful? What happened to them? Were 
they then put in jail?
    Secretary Chertoff. No, they're then deported. But let me--
    Chairman Leahy. Every one of them was deported?
    Secretary Chertoff. If they're illegal, sure.
    Chairman Leahy. So of those people--now, let's be sure on 
this. Of those people you apprehended, you're saying that most 
of them were illegal immigrants. You apprehended in November, 
that 1 month, and they were all deported?
    Secretary Chertoff. There were 23 illegal immigrants who 
were apprehended at the checkpoint.
    Chairman Leahy. In 1 month?
    Secretary Chertoff. In, actually, a 1-week period.
    Chairman Leahy. One week. And every single one of them was 
deported?
    Secretary Chertoff. Well, they're supposed to be, unless 
they have a legal claim, like an asylum claim.
    Chairman Leahy. Well, can you give me those?
    Secretary Chertoff. I will get you--
    Chairman Leahy. Because--
    Secretary Chertoff. But, Mr. Chairman, let me finish. 
Because it's not just illegal aliens. At various times at this 
particular checkpoint we arrested, for example, a native and 
citizen of Guatemala who had felony convictions for sexual 
assault of a child. We found a native and citizen of Canada at 
the checkpoint smuggling 95 pounds of marijuana. We had an 
individual, a national of Guatemala and Canadian who we 
discovered was out on bond for aggravated sexual assault. We 
had a national of Korea who was transporting four illegal 
aliens. We had a citizen of Canada transporting 150 pounds of 
marijuana. So, I mean, we are picking up drug dealers and other 
people at the checkpoints.
    Chairman Leahy. But isn't that something the State police 
should be doing, the sheriffs? I mean, I'm thinking if somebody 
really wanted to go down, it sounds to me like you're getting 
the idiots, because there are dozens and dozens of roads you 
could go down if you really wanted to get down there.
    Secretary Chertoff. I have two short answers to that. One 
is, we do do side patrols. Second--and I know you know this, 
Mr. Chairman, because you were a U.S. Attorney--you do get 
idiots.
    Chairman Leahy. I was a State's Attorney. But go ahead.
    Secretary Chertoff. But the truth of the matter is, it's 
worth getting the idiots who are smuggling marijuana or who are 
child molesters.
    Chairman Leahy. Well, yes.
    Secretary Chertoff. That takes some of the--
    Chairman Leahy. But if they don't show up on the border 
where people should show up--because I noticed in your final 
rule that DHS and the State Department issued last week on 
WHTI, it dismissed all the comments calling for additional 
outreach of business, travelers, border residents. The Travel 
Industry Association, Travel Business Round Table, went so far 
as to say the new rules are not accompanied by a credible plan 
to inform travelers of changing requirements. I listen to radio 
stations out of Montreal saying, don't go into Vermont or 
Upstate New York, the lines are an hour, 2 hours, 3 hours long. 
Spend your money in Canada. We're spending our money putting 
these checkpoints that really end up infuriating people 100 
miles or more from the border.
    Tell me, let me just ask one more thing about that. We're 
going to have additional staffing on Canadian holidays when the 
U.S. ports of entry have been particularly overwhelmed. We have 
May 23, 24, 25 which is Victoria Day weekend holiday; June 24, 
St. Jean Baptiste Day in Quebec; July 1, Canada Day; July 19, 
August 3, construction holidays in Canada. We're going to have 
extra--are we going to prepare for those?
    Secretary Chertoff. Yes, we do generally.
    Chairman Leahy. Or does it only make a difference if it's 
our holiday?
    Secretary Chertoff. No. We do generally actually mind any 
event, whether it's a holiday or a sporting event. And, you 
know, my instruction and the Border Patrol's undertaking has 
been to make sure we surge our capability when we think there's 
going to be heavy travel because of some holiday or event.
    And I don't want to be mistaking this suggestion as we 
don't want to continue to hire. We did put money in the budget 
for 2009 for additional inspectors. We--you know, my--
    Chairman Leahy. You put money in the budget for a permanent 
checkpoint on Interstate 91.
    Secretary Chertoff. Well, all I can tell you is, the 
current plan of the Border Patrol is to have--it's temporary. 
But I--if you're asking me whether I think checkpoints add 
value--
    Chairman Leahy. It's what your budget says.
    Secretary Chertoff. Well, I don't have it in front of me so 
I don't know what the thinking was.
    Chairman Leahy. Four million dollars.
    Secretary Chertoff. They changed their thinking. Here's the 
bottom line: having checkpoints does make sense. It is a useful 
tool. It's not an alternative to manning the ports of entry, 
but it recognizes the fact that people come between the ports.
    Chairman Leahy. So what you're saying is, in a little State 
like mine, everybody should just be stopped going down the 
Interstate, no matter whether they're going to visit a sick 
relative at the VA hospital or anything like that. We're all 
sort of presumed guilty until we prove ourselves innocent?
    Secretary Chertoff. No. I'm saying that--
    Chairman Leahy. It sounds like Big Brother gone awry.
    Secretary Chertoff. I have to say, Mr. Chairman, that--I 
mean, we have found drug smugglers, child molesters.
    Chairman Leahy. Mr. Secretary, we can--you can set up a 
road block on the George Washington Parkway and stop every 
single car coming in every single day. You're going to find 
some. Does that make it a sensible thing to do? Everything 
would come to a screeching halt around here. You could put a 
road block halfway across the Wilson Bridge in this area.
    Secretary Chertoff. I guess I'd answer you, Mr. Chairman, 
this way. Where I used to come from, from time to time, they 
manned roadblocks for drunk drivers. Now, the vast majority of 
people who were stopped were not intoxicated, but the fact is 
that they did catch people who were intoxicated.
    Chairman Leahy. Those were temporary roadblocks. We're 
talking about a permanent installation.
    Secretary Chertoff. But what I've indicated to you is the 
Border Patrol's current plan is to not operate it all the time. 
If the question is whether we ought to--how often we ought to 
do it or things of that sort, I mean, those are operational 
issues. If the question is, as a matter of principle, does it 
make sense to have these things, I have to tell you that I 
think it does make sense.
    Chairman Leahy. Well, then we have hundreds of roads. I 
mean, we have dozens and dozens of roads you can take from the 
Canadian border to get down to either New York or Massachusetts 
from Canada. Why don't you just put roadblocks on every one of 
them and Federalize Vermont?
    Secretary Chertoff. Well, we're limited by law to the 100 
miles closest to the border. We pick a place--
    Chairman Leahy. You've got dozens of roads. I mean, I've 
got a dirt road that goes in front of my house in Middlesex, 
Vermont.
    Secretary Chertoff. Right. Right.
    Chairman Leahy. That's within 100 miles of the Canadian 
border. Am I going to see a roadblock up there?
    Secretary Chertoff. Now, we pick a road which the Border 
Patrol--
    Chairman Leahy. Oh. Thank you.
    Secretary Chertoff. We pick a road which the Border Patrol 
thinks is likely to be a funnel through which people will come.
    Chairman Leahy. Well, we've had Canadians come up to my 
house in Vermont. Some of them are related to my wife.
    Secretary Chertoff. Mr. Chairman, that's great. But I'm not 
sure what your point is, Mr. Chairman.
    Chairman Leahy. I think you understand my point. My time 
has really been used up and I'm going to yield to Senator 
Feingold. I just--well.
    Senator Feingold. Thank you, Mr. Chairman. I was enjoying 
the exchange.
    Mr. Secretary, you've had a long morning, so let me just 
get right to these questions. Thank you for your service.
    In February, the Washington Post reported that Customs 
agents have been searching the cell phones and laptops of U.S. 
citizens and international business travelers coming across the 
border and then copying the contents. In court papers, the 
government has taken the position that a laptop is just a 
``closed container'' like a suitcase or a purse, and examining 
the contents of a laptop to learn the thoughts of the traveler 
is no different from examining a traveler's suitcase to see if 
it contains drugs or a weapon. But the Supreme Court has held 
that more intrusive border searches that implicate ``dignity 
and privacy interests of the person being searched'' can take 
place only if there is a reasonable suspicion of wrongdoing.
    Has DHS conducted searches of the contents of laptops and 
cell phones belonging to U.S. citizens in cases where the 
Agency did not first determine that there was a reasonable 
suspicion of wrongdoing?
    Secretary Chertoff. First of all, I think that the cases 
you're talking about involving reasonable suspicion applies to 
body searches. I think the searches with respect to documents 
at the border, whether they're reduced to paper form or 
electronic form, don't necessarily require a reasonable 
suspicion requirement.
    We're entitled to--I think copying requires a slightly 
higher requirement. So the short answer--but of course, as a 
matter of practice, we only do it where there's a reasonable 
suspicion because we don't do it to everybody. So with that 
suggestion there's a legal requirement, I think, that as a 
practical matter, when we look at a laptop or papers or 
something, it's because somebody is in secondary, which means 
by definition that we have a reasonable suspicion that is 
sufficient to--
    Senator Feingold. So even though you're not required to use 
that standard, according to your statements, you are, in 
effect, using that standard?
    Secretary Chertoff. I think--I believe, in practice, that's 
what's happening.
    Senator Feingold. In your view, if a person's laptop 
contains diaries, personal letters, medical information, 
financial records, and photos, does a search of those contents 
by the government implicate any dignity or privacy concerns?
    Secretary Chertoff. From a legal standpoint, if you're 
asking me do you need probable cause, the answer to that is no, 
at the border.
    Senator Feingold. I didn't ask you that. I asked you 
whether it implicates any dignity or privacy concerns.
    Secretary Chertoff. Sure. There are absolutely privacy 
concerns. Therefore, we only look to the extent necessary to 
satisfy ourselves, for example, that there's not child 
pornography or, as we've occasionally found, instructions for 
how to build remote IEDs. But if, after looking at the material 
there's nothing in there that is either contraband or 
indicative of a threat, then we respect the privacy and we 
return the item to the individual.
    Senator Feingold. But does DHS ever copy or otherwise 
retain the contents of--
    Secretary Chertoff. I believe we copy--
    Senator Feingold. Let me just finish the question.
    Secretary Chertoff. OK.
    Senator Feingold. Retain the contents of a person's laptop 
during a search.
    Secretary Chertoff. I believe that there are two types of 
things that happen. Sometimes if something is in a foreign 
language and needs to be translated or something of that sort, 
we make a copy for purposes of translation. If it turns out to 
be benign, we then destroy it. I think you understand that is 
probable cause. If we're going to seize it because it is 
illegal--contraband, child pornography--I think at that point, 
I believe--I'll verify it, but I believe--we use a probable 
cause standard.
    Senator Feingold. And then what sorts of retention or 
destruction policies are in place for information that had been 
copied?
    Secretary Chertoff. If it's not pertinent to a violation of 
the law, in other words, benign, it's destroyed. It's either 
returned or it's destroyed if we made a copy for purposes of, 
you know, translation. If it's, in fact, contraband or part of 
a criminal case, then it gets retained, like any evidence would 
be when it's seized, in accordance to law.
    Senator Feingold. Accoring to the Washington Post, many of 
the people who have been subject to these searches are 
travelers of Muslim, Middle Eastern, and South Asian background 
or descent, including U.S. citizens. Also, according to the 
Post, a Customs training guide states that ``It is permissible 
and indeed advisable to consider an individual's connections to 
countries that are associated with significant terrorist 
activity.'' I think the word ``connections'' is quite vague, 
but I assume that is deliberate. So let me ask you, if a U.S. 
citizen traveler is of Pakistani descent, does DHS consider 
that to constitute a ``connection'' to Pakistan, which is, of 
course, a country that is associated with significant terrorist 
activity?
    Secretary Chertoff. No. I think the issue of connections to 
a nation have to do with foreigners. However, that doesn't 
exclude the fact that if a person, a U.S. citizen, had a travel 
pattern that suggested, on an individualized basis, that they 
had something that needed to be looked at more closely, we 
would certainly take that into account. But the mere fact that 
someone is a U.S. citizen of any ethnic group is not a factor 
in--
    Senator Feingold. So being Pakistani alone would not be a 
trigger?
    Secretary Chertoff. If you are a Pakistani national, that 
might be a consideration, as with any foreign nationality. But 
that would be, for example, a citizen of another country. U.S. 
citizens are not treated differently based upon their ethnic 
background, but their individualized behavior could be a basis 
for singling them out, or if they matched a physical 
description it could be a basis for singling them out.
    Senator Feingold. And you're saying it's narrowed to those 
circumstances?
    Secretary Chertoff. I think, yes, that's basically--
    Senator Feingold. I would like whatever assurances you can 
provide that that's the case, because I've heard horror stories 
that suggest otherwise, but I have not been able to personally 
document them.
    Secretary Chertoff. That's--I'm giving you--I'm telling you 
what the policy is. Can I tell you that no one has ever 
transgressed? I mean, my experience with law enforcement 
suggests that I wouldn't be able to give you that assurance. 
But that's the policy.
    Senator Feingold. Another issue. The REAL ID regulations 
require that all REAL ID cards use the same type of machine-
readable bar code to store personal information on those cards. 
That means that anyone who has a machine that can read that bar 
code can collect the personal information on REAL ID cards and 
log individuals' activities. Sometimes this is called skimming. 
It means government or private entities can track Americans' 
locations and activities over time.
    I think this is a significant privacy issue. I've heard 
concerns that all this information could even end up being for 
sale. Yet, the DHS regulations do not prohibit private sector 
use of this information or limit its use to law enforcement 
purposes. It just leaves it to the States to deal with the 
problem. Why is DHS not taking more proactive steps to address 
it?
    Secretary Chertoff. I disagree with the characterization of 
what you can do with a Machine Readable Zone. I think that's 
dead wrong. I think there's a lot of misinformation out there. 
Let me tell you what a Machine Readable Zone has. It has 
exactly the same information as on the face of the license, 
therefore you can either read it with an MRZ read or you can 
read it with your eyes. You cannot skim a Machine Readable Zone 
because skimming, to the extent it occurs, requires an RFID 
chip, and a Machine Readable Zone is not an RFID chip. We are 
not requiring RFID chips.
    So there is no way you could track someone's comings and 
goings with a driver's license unless you followed them around, 
which you can do without the REAL ID. So I have to say the idea 
that--and I've read this over and over again, I've seen the 
ACLU say it, and it's a blatant falsehood. It is not the case 
that the REAL ID license, without the RFID, can be used to 
track people. There is a way to track people. If I hacked into 
your credit card account, I could track you based on every time 
you use your credit card. But that has nothing to do with us.
    Senator Feingold. You can track and record this much more 
easily than if it were not on a bar code. Isn't that true?
    Secretary Chertoff. I disagree with that.
    Senator Feingold. You don't think that's true?
    Secretary Chertoff. I do not think that's true.
    Senator Feingold. Well, we'll take this up on another 
occasion. Thank you very much, Mr. Secretary.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Secretary, it's been a long day. I won't go into questions 
on the--well, first, I should ask you, do you want to say 
anything further before I conclude?
    Secretary Chertoff. No. I'm ready for lunch.
    Chairman Leahy. You've had so much fun, you don't want to 
continue?
    Secretary Chertoff. It's been fun, but all good things must 
come to an end.
    Chairman Leahy. I understand. I hope the same about the 
permanent $4 million installation on I-91.
    But moving along, I was going to ask you questions about 
extending EB-5 Immigrant Investor Regional Center Program that 
expires in September. I hope you will work with me to continue 
it beyond September. It's an important program. All States can 
continue to benefit from the job creation and capital 
investment the program brings. At a time that we're going into 
a recession, it's good to have a program that actually does 
create jobs.
    As we get closer to the now-delayed implementation of WHTI, 
I hope the Department will listen to the warnings from those 
who live and work on our northern border: this must be done 
right. I can give you anecdotal stories, but you have to 
understand, this is the matter. Those of us along the northern 
border feel very strongly. It's not a Democratic or Republican 
view, it's the view of all of us, businesses that go back and 
forth, the travel industry, those who have families there, even 
to the extent of having to worry about one town where the 
border comes down the middle of the road. There are questions 
about whether somebody can cross the road to baby-sit their 
relatives' children, things like this.
    Let's do it right. Canada is a great country. We share a 
lot of our culture in comity with them. I would like to see 
more money spent to improve our intelligence on both sides of 
the border for those who are threats and who lose hundreds of 
billions of dollars' worth of jobs because we do something that 
may be more symbolic than substantive. I appreciate the fact, 
on a very newsworthy case, that you have acted upon that. I 
would hope that you would push back in your own Department to 
find out how many other cases that have not made the news, have 
not been researched by the Washington Post, doing the work that 
should have been done by somebody in DHS that's looked at. I'd 
like to know what's happening on the Katrina trailers, why we 
still have those that are harmful to people's health long after 
that time. It's been a terrible failure.
    I believe that the hundreds of thousands of legal, 
permanent residents who are in danger of not being naturalized 
in time to vote in November--Senator Kennedy used a figure of 
over half a million. I want them to know that they have a firm 
commitment from their Federal Government that there's a reality 
of their applications being processed in time. Obviously, we 
all understand if you have somebody in there who's made a false 
application or something, it won't go through.
    But let us assume most of them are trying to follow the 
law. One of the greatest things, I know, when my grandparents 
told me after they became citizens in this country, having left 
Italy where they really didn't have a chance to vote, how great 
it was to be able to vote. I suspect the same feeling is here, 
that these people want to vote. You've noted you had firsthand 
experience how important hard-fought, comprehensive immigration 
was.
    I sat in many of those meetings with you, as you know, Mr. 
Secretary. I also told the President I completely agreed with 
him on his effort for comprehensive immigration reform. I wish 
that it had gone through. But I think, in light of your 
unprecedented enforcement activities and these fee increases, 
we should have been better prepared for the huge increase in 
applications, better prepared to deal with it in a timely 
manner.
    Now, in answer to the question of Senator Feingold, you, I 
think, are down-playing some of the severity of the REAL ID 
mandate. I think it would be better to repeal that. It was put 
in with pressure from the administration. You speak of a 
congressional mandate, but that was slammed through on 
legislation that was called ``must pass'', with strong support 
from the administration.
    I think we ought to engage in a fair, more productive 
negotiated rulemaking with the States. It would be better than 
to override environmental laws, override States' rights, and 
all these other things. Maybe people want to have a national ID 
card; in my State, they don't. But maybe that's what we're 
coming to. I hope not. But before we tell the States, do it 
this way, do it our way or no way, and oh, by the way, increase 
your taxes so you can pay for this thing we're mandating, I 
think there's a better way, I really do. So, I'll pass that on 
for what it's worth.
    Secretary Chertoff. Mr. Chairman, I want to respond on the 
WHTI thing. I think we are as committed as you are to try to do 
this seamlessly. I think we have the capability to do it. I 
think now we've agreed upon a June, 2009 deadline. We've got 
the investments made in a number of States to do the driver's 
licenses. The Canadians are now putting money into this. So I'm 
hopeful, if we can now have a unity of effort to get this done, 
we can wind up in a little over a year with something that will 
not only be more secure, but actually is going to speed it up 
at the border.
    Chairman Leahy. Well, let's talk about this driver's 
license. Let me give you, a group of school kids come down on a 
school bus.
    Secretary Chertoff. We've exempted them. We actually said 
that--
    Chairman Leahy. What about the senior citizen who never got 
a driver's license?
    Secretary Chertoff. You know, driver's license--we're 
accepting--a lot of States have a non-driver's ID. We're 
accepting that. I think what we have done, and this has been an 
iterative process with not only the States, but with the 
Provinces and with the Canadian government, I think we have a 
reasonable, practical, and relatively inexpensive plan. I come 
back to, you know, we had a 9/11 Commission, we spent I don't 
know how much money having them do their report.
    This is one of their top recommendations. I kind of 
committed to doing this. I think we're doing it in the right 
way. I think that if we are consistent in our message, we're 
going to get there and everyone is going to be better off. I 
think we're going to make it quicker to cross the border 
because it will actually speed the time that every individual 
has to spend at a border post.
    So I think I'm with you in wanting to keep the open flow of 
trade and traffic. I just want to make sure we're redeeming the 
promise we made on the 9/11 recommendation.
    Chairman Leahy. Well, I expect we'll have more 
conversations about this before we get there.
    Secretary Chertoff. I'm sure we will.
    Chairman Leahy. The legislation requires us to wait until 
July of 2009, with bipartisan legislation, as you know, the 
Leahy-Stevens legislation. We have many other Senators from 
both parties that co-sponsored. I also hope that someone's 
looking at the situation, wearing my other hat as the Chairman 
of the Subcommittee that helps to fund the State Department, 
that we not end up with computers that cannot talk to each 
other. As you know, that was the original concern. It won't do 
any good if you work out the WHTI problem and then they stop 
the second line and say, well, now, wait a minute. I don't care 
what you went through there, now you've got to go through it 
all over again.
    I think we are citizens of a very great and wonderful 
country. A lot of people around the world think that we have 
suddenly become xenophobic, and almost arrogant in the way we 
treat people coming here. I have a lot of friends overseas who 
tell me, look, we'd love to go to the United States. Our euro 
is worth so much more because your dollar has slipped so badly. 
But we just don't want to go through the hassle. We don't want 
to be shouted at as we're going through, treated like we're 
some kind of criminals going through Immigration, going 
through--we finally get a mile away from wherever our port of 
entry, and everybody's very, very nice. But we're made to feel 
like some kind of criminals as we go through.
    I've seen this myself with the way people have been 
treated. If I'm recognized, everybody's very nice to me. But 
that's not the way it should be. They should also be nice to 
the person who's coming in from Italy, or Germany, or Ireland, 
or wherever else ahead of me. In fact, I think it's even worse 
that they're really giving somebody--just, frankly, berating 
them for maybe a bit of a language problem, berating them, and 
then all of a sudden being very nice to me. I think that's even 
worse. So, I pass that on for what it's worth.
    Secretary Chertoff. I agree with you.
    Chairman Leahy. Thank you.
    Secretary Chertoff. Thank you, Mr. Chairman.
    Chairman Leahy. We stand in recess.
    [Whereupon, at 12:06 p.m. the hearing was adjourned.]
    [Question and answers and submissions for the record 
follow.]

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