[Senate Hearing 111-431]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 111-431
 
         OVERSIGHT OF THE U.S. DEPARTMENT OF HOMELAND SECURITY

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                            DECEMBER 9, 2009

                               __________

                          Serial No. J-111-65

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          LINDSEY GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
            Bruce A. Cohen, Chief Counsel and Staff Director
                  Matt Miner, Republican Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................   197
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     3

                               WITNESSES

Napolitano, Janet, Secretary, U.S. Department of Homeland 
  Security, Washington, DC.......................................     5

                         QUESTIONS AND ANSWERS

Responses of Janet Napolitano to questions submitted by Senators 
  Coburn, Cornyn, Feingold, Feinstein, Grassley, Hatch, Kyl, 
  Leahy and Sessions.............................................    38

                       SUBMISSIONS FOR THE RECORD

Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma, 
  letter.........................................................   195
Napolitano, Janet, Secretary, U.S. Department of Homeland 
  Security, Washington, DC.......................................   199
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania, letter...........................................   217


         OVERSIGHT OF THE U.S. DEPARTMENT OF HOMELAND SECURITY

                              ----------                              


                      WEDNESDAY, DECEMBER 9, 2009

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, Pursuant to notice, at 10:09 a.m., in 
room SH-216, Hart Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Feinstein, Feingold, Schumer, 
Cardin, Whitehouse, Klobuchar, Specter, Franken, Sessions, Kyl, 
and Cornyn.

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

    Chairman Leahy. Good morning. I thank everybody for being 
here, and I welcome Secretary Napolitano back to the Committee 
for her second oversight hearing since her confirmation in 
January. In the first several months of the Secretary's tenure 
at the Department of Homeland Security, we have seen some 
marked changes in the way that immigration enforcement and 
domestic security are conducted, reflecting a new approach that 
I hope will serve us well as we consider broader immigration 
reform legislation in the new year. And I know that Senator 
Schumer as Chairman of the Subcommittee will be working on 
that, and we will try to have immigration reform legislation.
    We often hear that we cannot begin comprehensive reform of 
our immigration laws until we have won control of our borders. 
Well, since the Senate last considered immigration reform--and 
many of us, Republican and Democratic members alike, worked 
with the former President, George W. Bush, to try to get 
comprehensive reform, and I several times publicly applauded 
him for his efforts on that. But most of the enforcement 
benchmarks and triggers included in prior legislation have been 
substantially met. Indications are that illegal immigration has 
receded. And, Madam Secretary, we commend you and the men and 
women of the Border Patrol for their extraordinary efforts.
    The Department is also now acting more pragmatically and 
effectively to deter employers from hiring immigrants who are 
not authorized to work in the United States by conducting 
targeted audits and, where appropriate, laying the groundwork 
for meaningful prosecution of employers that flout the law. 
While the prior administration launched large-scale worksite 
immigration raids, disrupting business operations and often 
depriving arrested workers of due process--I think that was an 
overreaction--Madam Secretary, you have adopted a sensible 
approach to immigration enforcement. It probably reflects your 
significant experience as a prosecutor before you were here, 
and as a Governor.
    Sensible enforcement of current law will not by itself 
solve our Nation's immigration problems, and we do need reform, 
and comprehensive reform.
    An example from my home State of Vermont demonstrates how 
badly we need broad-based reform of our immigration laws. Three 
weeks ago, at least four Vermont dairy farms were visited by 
Immigration and Customs Enforcement agents as part of a 
nationwide workplace immigration audit. Vermont dairy farmers 
are law-abiding people. They want to respect the law. They want 
to hire lawful workers. But they struggle to find American 
workers and--unlike other agricultural businesses--they are not 
eligible to hire temporary foreign workers under the H2-A visa 
program. We do hire temporary workers in Vermont for apple 
picking and things like that. Unfortunately, on dairy farms, 
you need them year round. You cannot tell the cows, ``We will 
be back to milk you in 6 months.'' It just does not work that 
way. So the result is that many dairy farmers are forced to 
choose between their livelihood and adhering faithfully to our 
immigration laws. And I have urged the Department of Labor to 
modify the H2-A program in its current rulemaking process, and 
I continue to fight for enactment of the AgJOBS legislation. I 
would urge you, Madam Secretary, to support these.
    Another example again from Vermont demonstrates how we can 
use our immigration laws to promote job creation and foreign 
investment in the United States. At a hearing in July, we saw 
how the investor program known as EB-5 Regional Center Program 
is bringing millions of dollars of foreign investment into the 
State of Vermont and helping create jobs in places like Jay 
Peak. And I want to commend Senator Sessions, who has been a 
strong supporter of the EB-5 process. We have worked together 
on legislation on this. And I want to thank the Secretary for 
the Department's recent approval of an expansion of the EB-5 
Regional Center program in Vermont. I have long advocated 
making this a permanent program. We have extended it for 
another 3 years. I think it should be permanent. It has worked 
across the country in Alabama, Iowa, New York, Maryland, 
Oklahoma, California, Illinois, Pennsylvania, South Carolina, 
Vermont, Wisconsin, and, of course, Vermont. It creates jobs.
    We also have to have immigration laws that are fair, 
humane, and reflect our American heritage. On that score, I 
appreciate the steps Secretary Napolitano has taken to begin to 
reform the shameful condition of our immigration detention 
system. We should have systemic reform, including enforceable 
standards of detention conditions, internal and independent 
oversight, broader use of secure and humane alternatives to 
detention, and expanded access to legal counsel for the 
detained.
    We want America to live up to our ideals in welcoming and 
protecting asylum seekers and refugees. The Department has made 
progress in resolving the harm to genuine refugees caused by 
the overly broad application of the material support bar. We 
all say we are a Nation of immigrants. My maternal grandparents 
immigrated here from Italy, my paternal great-great-
grandparents from Ireland. That is what makes this country what 
it is. But more still needs to be done. I urge the Secretary to 
act swiftly to issue regulations on severe gender-based 
persecution as a basis for asylum claims. The landmark case in 
this area, Matter of R-A-, has now been pending for 14 years. 
We need regulations in place to protect other victims.
    But I want to commend the Secretary for working in a 
constructive manner to address the impending December 31st REAL 
ID compliance deadline. The residents of States that are not 
materially compliant with REAL ID may otherwise be denied 
access to airplanes and Federal buildings. The National 
Governors Association stated last month that as many as 36 
States may fail to comply by December 31st. I can just think of 
thousands of Americans from these States have IDs that will get 
them on planes to go visit relatives over Christmas, and if 
there is strict enforcement of the laws, when they come to fly 
back home, they will be told that they cannot.
    Senator Akaka introduced and I cosponsored a bill called 
PASS ID, which makes reasonable alternatives to REAL ID. The 
bipartisan National Governors Association supports this bill. 
The PASS ID bill awaits action on the Senate floor, although 
there has been an anonymous hold on it. I hope that that hold 
will be lifted. If it is not, I suspect whoever is doing the 
holding, it will become clear, and when thousands and thousands 
of irate people from that Senator's State start calling in, we 
will be sure to direct the calls to the right place.
    Senator Sessions.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you. Madam Secretary, thank you for 
being with us. You have one of the great large departments in 
our country. Not too long ago, we cobbled it together. It takes 
some strong leadership from the top, and you have the 
background that would qualify you for that, and we want to be 
supportive when we can and provide the oversight that we are 
required to provide.
    The primary mission of the Department is to lead a unified 
national effort to secure America to deter terrorist attacks 
and protect against threats. I believe Attorney General Holder, 
who testified before us not long ago, his decision to bring 
Khalid Sheikh Mohammed and other terrorists to New York City 
for civilian trials is an action that makes your mission more 
difficult. Bringing foreign nationals into the United States 
allows them to take advantage of immigration laws and assert 
various rights in Federal courts, though at our last Department 
of Justice oversight hearing, the Attorney General seemed 
unfamiliar with these consequences when asked about them. So I 
would hope that you can clarify that for us today and see what 
we can do about this action that I think would bring into our 
country some very dangerous people and has the potential of 
resulting in their being released in the United States.
    A major component of your mission is securing of the 
Nation's borders, deterring those who would attempt to enter 
illegally, and finding and removing those who have come here in 
violation of law, while facilitating entry of legal immigrants 
and visitors in a fair and timely manner. So I am disappointed 
by some of the actions that you have taken that I think 
undermine the enforcement measures for those in the country now 
illegally, which I think is critical to curbing illegal 
immigration in this country.
    At a time when the unemployment rate is 10 percent, I 
believe it is not responsible to invite or allow illegal 
workers to take jobs that should be available to American 
citizens and legal immigrants.
    Now, by pushing for the legalization of an estimated 12 
million people here illegally or by turning a blind eye to the 
estimated 11.8 million illegal workers who are now displacing 
Americans from jobs, I believe that your policies are not 
helping.
    Earlier this year, I told the President at a meeting that 
we had there that there should be a real possibility for us to 
reach an agreement on a number of important immigration issues. 
The American people, however, cannot accept and will not accept 
another bait and switch like the 1986 bill, where it, in 
effect, provided immediate amnesty to millions of people who 
had entered illegally in exchange for promises in the future 
for enforcement that never occurred. So I do think it is 
important that we demonstrate and you demonstrate enhanced and 
improved enforcement if we are going to be able to ask the 
American people to support any kind of comprehensive bill in 
the future.
    We have, I am pleased to say, made some important strides 
in securing our borders, and I know the Department took some 
effective steps in the final years of the Bush administration 
to strengthen interior enforcement. Through the construction of 
fencing and increased Border Patrol agents, we have seen a 
dramatic reduction--really, a significant reduction in the 
amount of apprehensions at the border. I hope and believe this 
indicates that fewer people are trying to enter illegally. In 
fact, the number of people caught illegally attempting to enter 
the United States dropped by more than 23 percent in 2009, and 
the 556,000 apprehensions made in 2009 represents an almost 50-
percent decrease from the 1.1 million arrests made at the 
border in 2005-2006.
    The Department of Homeland Security has completed over 340 
miles of pedestrian fencing and almost 300 miles of vehicle 
barriers, and this in addition to almost doubling the amount of 
Border Patrol agents since 2005.
    So these are developments that have been critical to this 
progress, but to be frank, the leadership did not come from the 
executive branch. It came from Congress and the American people 
who insisted that these things be done.
    The fact is that the current DHS policies are 
systematically weakening, I think, our interior enforcement, 
and we need to talk about that. I believe that the American 
people rejected this philosophy in 2006 and 2007, and we need 
to be able to assure the American people that laws will be 
enforced and that we are not going to just look the other way. 
Faith in the system is eroded and a message is sent worldwide 
when we fail to enforce our laws, and the message is if you can 
just get into this country you are safe, do not worry about it, 
sooner or later they are going to give you a legal status.
    Worksite enforcement has been in free fall under your 
leadership. Based on statistics released from ICE, 
administrative arrests inside the country pursuant to worksite 
enforcement actions have fallen 68 percent since 2008 to 2009, 
just in that period of time. Criminal arrests have fallen 60 
percent, criminal indictments have fallen 58 percent, and 
criminal convictions have fallen 63 percent. So I think the 
dramatic reduction in worksite enforcement efforts is not 
healthy, and it is not going to be made up by I-9 audits, which 
have not proved historically to be effective.
    Under current policies, DHS has rescinded the no-match 
rule, weakened the 287 Local Law Enforcement Cooperation 
Program, and pressed for passage of a bill that would 
unacceptably weaken the REAL ID Act. These actions are 
troubling because they indicate the administration is saying 
that if illegal aliens are able to get into our country, they 
will not be bothered. So this is, I think, a wrong policy and a 
wrong message.
    This country is a Nation of immigrants. We do welcome 
millions of people, the millions each year who follow the law 
and enter our country through the lawful channels. This country 
is a Nation also of laws, and we cannot refuse to enforce those 
laws. It undermines respect for the great tradition and 
heritage of American law.
    So I look forward to discussing these issues with you 
during the hearing. They are important questions. I really and 
truly believe that we have an opportunity to continue to make 
progress in immigration far greater than a lot of people have 
thought, and at this time of surging unemployment, I think it 
is important that we do so.
    Thank you for your work. Thank you for the skills and 
talents you bring to the office, and I look forward to working 
with you in matters on which we can agree and to raising 
matters where we do not agree.
    Thank you.
    Chairman Leahy. Thank you, Senator Sessions.
    Madam Secretary.

   STATEMENT OF HONORABLE JANET NAPOLITANO, SECRETARY, U.S. 
                DEPARTMENT OF HOMELAND SECURITY

    Secretary Napolitano. Well, thank you, Chairman Leahy, 
Senator Sessions, members of the Committee.
    Securing our borders and enforcing our immigration laws 
remain top priorities for the Department of Homeland Security. 
Over the past year, we have taken unprecedented action to 
achieve our goals, and the results have been striking. As part 
of the Southwest Border Initiative, we have added more 
manpower, technology, and resources to the border. We have 
implemented a southbound strategy to prevent illegal weapons 
and cash from crossing the border into Mexico and supporting 
the large drug cartels there, and we have expanded our 
partnerships with our Federal, State, tribal, and local 
partners along the southwest border and with Mexico and Mexican 
law enforcement.
    Compared to last year, seizures in all categories--drugs, 
smuggled cash, illegal weapons--are up dramatically as a result 
of the southbound strategy.
    As noted, apprehensions are also at decade lows, down 23 
percent this year. And, Senator Sessions, I agree with you; 
interior enforcement is part and parcel of immigration 
enforcement. We have in the last year identified and removed 
criminal aliens, fugitives, and gang members at record numbers. 
In fiscal year 2009, ICE removed a record number of illegal 
immigrants, 387,000, of which 136,000 were criminal aliens.
    Secure Communities, which we are expanding throughout the 
law enforcement agencies in the United States, that checks the 
biometrics booked in local jails identified more than 111,000 
criminal aliens just in its first year.
    We have improved oversight of the 287(g) program and 
renegotiated the agreements there to make them more effective.
    We have enhanced and expanded E-Verify. This is also part 
of interior enforcement. Over 175,000 employers at more than 
600,000 worksites are using the system, with thousands more 
joining every week. And that is important because that provides 
a way for the American worker to know that the legality of 
workers is being checked.
    We have taken action to reform the immigration detention 
system to ensure that those in custody are treated humanely, 
given appropriate, timely medical care. We are improving 
Federal oversight and management, including more direct 
supervision of detention facilities by ICE. We are also 
developing strategies for alternatives to detention to be used 
where appropriate.
    These efforts are part of our enforcement, but as you both 
noted, we also facilitate the legal entry into the United 
States, and, Mr. Chair, I had the honor of being at Ellis 
Island last Friday and swore in 140 new citizens to the United 
States, including 10 active-duty military, and that is one of 
the great pleasures of being the Secretary of Homeland 
Security. And while I was there, they gave me the ship register 
where my grandfather came over and immigrated. So it just 
illustrates once again that we are a Nation of laws and a 
Nation of immigrants.
    With respect to that, we have eliminated the name check 
backlog at USCIS. We have launched a very customer-oriented 
website. We also have eliminated the so-called widow's penalty 
and other things that were not consistent with our overall 
immigration values.
    Finally, we have continued to ensure that lawful travelers 
and commerce move across the borders swiftly and securely. WHTI 
has been fully implemented at land, sea, and air ports. 
Compliance remains very high, above 95 percent. We are 
strengthening US-VISIT.
    And then, lastly, on the issue of the driver's licenses, 
the 9/11 Commission recommended that there be more secure 
provisions surrounding the issuance of driver's licenses. There 
was a provision tacked onto an appropriations bill called REAL 
ID to do that. Unfortunately, it was tacked on without adequate 
consultation with the States who have to administer the 
driver's license program. Working with the National Governors 
Association, working across party lines, PASS ID was developed. 
I urge you to see if you can move this legislation forward. 
This deadline is fast approaching, and as, Mr. Chairman, you 
noted, this is something, even if we extend the deadline, we 
have not furthered the 9/11 Commission report, which is to get 
to a more secure driver's license system. So it is something--
--
    Chairman Leahy. But you do support the PASS ID?
    Secretary Napolitano. Oh, absolutely. And we are very 
interested--and I think the national security, as we build the 
architecture of it, requires that we take on that 
recommendation and move the issues forward.
    Finally, we need to know--or we look forward to working 
with you on immigration reform. The President is committed to 
that. He is committed to reform that includes serious, 
effective, and sustained enforcement, that includes improved 
legal flows for families and workers, and a firm way to deal 
with those already illegally in the country. We need to demand 
responsibility and accountability from everyone involved--the 
Department of Homeland Security, our law enforcement partners, 
businesses who must be able to find the workers they need here 
in America, and immigrants themselves--as we enforce the law 
moving forward.
    So I look forward to working with you, Mr. Chairman, 
Senator Sessions, and others on this Committee to develop a 
path forward early next year to reform the immigration system 
as a whole.
    Thank you, Mr. Chairman.
    [The prepared statement of Secretary Napolitano appears as 
a submission for the record.]
    Chairman Leahy. Thank you very much. We are going to go a 
little bit out of order. Senator Schumer has asked to ask one 
question. He has to go to a meeting for the White House. I have 
already discussed this with Senator Sessions, so, Senator----
    Senator Schumer. Thank you, Mr. Chairman. Thank you, all my 
colleagues on both sides of the aisle, and thank you, Secretary 
Napolitano. Just a brief question. This is on WHTI, the Western 
Hemisphere Travel Initiative. It went into effect on June 1st. 
In Buffalo, New York, and around our northern border, we have 
seen a precipitous drop-off in border crossings, and a good 
part of it, at least the people up there believe, is just 
because of lack of education.
    The Canadians believe they need a passport to travel across 
the border. Obviously, they do not. WHTI was put together to 
make it easy to travel across the border. But the problem is 
they believe that, and a good number of our Americans believe 
the same.
    Western New York, Buffalo, depends on cross-border traffic. 
It is probably the No. 1 thing in its economy.
    So all I am asking you here today is: Would you be willing 
to work with me and commit to working with you and your 
Canadian colleague to get an education campaign on both sides 
of the border, informing people what the requirements are of 
WHTI, that you do not need a passport, and that it is not very 
hard to travel across the border? Because it is hurting our 
economy up there pretty badly.
    Secretary Napolitano. Senator Schumer, yes. In fact, we 
have had an extensive education campaign for several months up 
there, including when people get to a crossing point, they are 
given a tear sheet saying, ``This is all you need to do, and 
you can go over here and get your WHTI card right there''--one-
stop shopping, as it were.
    Senator Schumer. Right.
    Secretary Napolitano. But we are more than willing----
    Senator Schumer. Yes. The problem is the people who do not 
go because they think they need a passport, they know a 
passport costs money. Less than a third of Canadians and a 
slightly higher--less than a third of Americans and a slightly 
higher percentage of Canadians have a passport, and it has 
retarded travel. So we need to get that education to the people 
who have not gone across the border, and if you could help us 
with that and work with your Canadian colleague, it would be 
most welcome.
    Secretary Napolitano. We would be pleased to do so.
    Senator Schumer. Mr. Chairman, my colleagues, thank you.
    Chairman Leahy. Thank you. I hear the same questions in 
Vermont. Many of us go back and forth to Canada as though we 
are going to another State, and it does affect commerce 
considerably on both sides of the border. And others have, as 
my wife does, family members in Canada, and I do not say this 
just as a personal thing, but I know somebody--hundreds and 
hundreds of people in our State of Vermont who do, and it 
becomes an issue with families. So the education, to the extent 
we can get the Canadians to do the same, would be very helpful.
    Apparently, TSA, the Transportation Security 
Administration--and you and I discussed this before you came 
in--reportedly posted an airport screening manual online last 
spring that detailed procedures for screening passengers, how 
certain materials could be masked and so on. They described the 
settings for x-ray machines and explosives, listed the 
countries from which passport holders would be subject to 
greater scrutiny. Apparently, TSA learned of this last Sunday 
after a blogger put it on the Internet. Then they initiated an 
internal review.
    Who should be held accountable?
    Secretary Napolitano. Well, first of all, Mr. Chairman, let 
me say two things about the posting itself, and that is that 
the security of the traveling public has never been put at 
risk, and that the document that was posted was an out-of-date 
document. Nonetheless, the posting of it did not meet our own 
standards for what should be available on the Net and not 
available on the Net.
    So we have already initiated personnel actions against the 
individuals involved in that. We have already instituted an 
internal review to see what else needs to be done so that the 
incident never recurs. And I have directed that not just at TSA 
but we do a review departmentwide on all of our components, 
because as you know we have got one of the biggest departments 
around, to make sure that we are being rigorous and very 
disciplined on what is posted and what is not.
    Chairman Leahy. Am I correct that this involved a 
contractor?
    Secretary Napolitano. The individual involved was a 
contractor. Some of the supervisors ultimately were in TSA. I 
should also say that with respect to this particular incident, 
we have also asked the Inspector General to do his own 
independent review to supplement and complement what we are 
doing.
    Chairman Leahy. Thank you.
    This week, new terrorism-related charges were filed in the 
case against David Headley, a U.S. citizen who was originally 
arrested for conspiring to commit terrorist attacks in Denmark, 
but now he has been charged with helping to plan the deadly 
Mumbai attacks in India last year. And there have been a number 
of arrests within the United States of persons charged with 
plotting attacks. I am not asking you to go into individual 
cases, but as you can imagine, this raises a great deal of 
concern among Americans if we have people plotting attacks from 
the United States even though they may be conducted outside the 
United States, because it is just as easy to plot such attacks 
and plot them inside the United States.
    How do we and how does DHS plan to contribute to 
confronting the problem of homegrown terrorism in a targeted, 
effective manner? I mean, how much coordination goes on here? 
We know that 9/11 could have been stopped before it happened if 
all the dots had been connected. I am not going to go back and 
rehash who dropped the ball there, but how do we make sure we 
are not dropping the ball today?
    Secretary Napolitano. Well, Mr. Chairman, with respect to 
Headley, I will keep my remarks restricted just on the nature 
of the case, and it is in the justice system, as you yourself 
noted. But we coordinate and are coordinating very extensively 
with the FBI, the CIA, the DNI, and other intelligence agencies 
in terms of cases that emanate from abroad and threats that now 
emanate from the interior of the United States.
    Second, we are increasing our sharing of information to 
State and locals. Those are eyes and ears, local law 
enforcement, that need to be more fully engaged and employed in 
watching for those who would seek to do us harm and have the 
information, the situational awareness to do it.
    One of the ways we are doing that, Mr. Chair, is through 
support of fusion centers across the country.
    Chairman Leahy. The support of what?
    Secretary Napolitano. Of fusion centers, where we have 
Federal, State, and local law enforcement collocated. And to 
give you some nuts and bolts, one of the problems we are 
working through there or one of the challenges is security 
clearances so that people can get information at top secret and 
above levels, and that is a process that is underway right now.
    And, last, we are really asking the American people to lean 
forward and at the individual and at the business level and 
community level, wherever, to recognize that our security is 
really a shared responsibility and that there are things that 
can be done at all levels, even as we work at the DHS to 
prevent something from occurring.
    Chairman Leahy. I agree with you it is important for just 
the average person to come forward with things. But then we 
have got to make sure the word gets throughout the Government. 
I mean, 9/11 could have been totally avoided. There had been 
warnings from at least one FBI agent to Washington about the 
concerns he had with the people who were getting the flight 
lessons, and he was told, ``Well, that is above your pay grade. 
We have got it under control,'' and nobody did. And it really 
worries me that that could ever happen again.
    Now, one issue, totally different, on which I hope you can 
be of help--and I mentioned this in my opening statement--is 
the H2-A agricultural worker visas. I would like to have them 
available to dairy farm workers. The fact that dairy farmers 
cannot use this program is a problem. It makes little sense 
when you consider the reason for H2-A visa programs. And now it 
is not a problem just in Vermont. It is a problem in Wisconsin. 
It is a problem in every State that has a dairy industry. I 
have commented formally in the Department of Labor's H2-A 
rulemaking process. I have written to Secretary Solis about 
this.
    H2-A rules would permit sheepherders on a western range to 
obtain H2-A visas even though the jobs are exactly what prevent 
dairy farmers from obtaining workers, and that is really not 
fair. I am not suggesting we cut it out for them by any means, 
but will you give serious consideration to addressing this 
issue with the Secretary of Labor to encourage the Labor 
Department to make the rules necessary on the H2-A program?
    Secretary Napolitano. Mr. Chair, yes, and we have been 
working with the Department of Labor. The issue presented is 
whether through rule or reg we can fix this issue for the dairy 
farmers under H2-A or whether there will actually need to be a 
statutory change. And the lawyers are looking at that issue 
right now.
    Chairman Leahy. God bless the lawyers. But we do want a 
solution one way or the other as soon as we can.
    Secretary Napolitano. Agreed.
    Chairman Leahy. Thank you.
    Senator Sessions, and, again, I appreciate your courtesy.
    Senator Sessions. Thank you. And I know Senator Leahy is 
always working to be effective in helping his constituents, and 
there are some problems with the farm worker policies that we 
have. Let me just say fundamentally what I think we have a 
problem with.
    Under the last two proposals of comprehensive reform, it 
basically allowed people to come to work temporarily for 3 
years, to bring their family, and then opt to re-up again. That 
clearly is not a strategy that would be effective in the sense 
that it has no real potential to see them return home. They put 
down roots. Their children start going to school. So if we are 
going to have an ag program, I think it clearly has to be on a 
temporary basis where, if a person wants to come for a season 
or in the case of dairies, maybe they would have two people 
come and work 10 months each or something of that fashion. But 
the idea that we would call a temporary working program a 
program in which people come for multiple years with their 
families, with the ability to extend, is really an immigration 
policy, and puts us in a very difficult position.
    There are so many tough questions on these immigration 
issues, but that is one of the matters that I think we have got 
to get our thinking correct about.
    Madam Secretary, I was troubled, I raised with your 
earlier, about your statements in a Washington State workplace 
investigation, and you said that you were going to get to the 
bottom of it. And the way I understood it, the message you were 
sending was--and I told you that--that you did not want those 
raids, you did not want agents out doing what the law requires, 
and that is, to investigate businesses who have large numbers 
of people who are here illegally. And statistics by ICE show 
that administrative arrests of illegal immigrants are down 68 
percent, and that is the category I am talking about. Criminal 
arrests are down 60 percent, criminal indictments are down 58 
percent, and criminal convictions are down 63 percent last 
year. The only activity that has increased is the amount of 
requirements under the I-9 audits. Such audits, which were a 
fixture of INS policy during the Clinton administration, are 
widely considered to be ineffectual. The fines that businesses 
face are small and too small to deter the activities that we 
are concerned about.
    In addition to focusing on paperwork issues, the 
administration has repeatedly refused to take into custody or 
deport illegal aliens found working when you do the 
investigations.
    In one high-profile case, for example, American Apparel, a 
notorious Los Angeles-based immigration scofflaw garment 
manufacturer, they were allowed to terminate hundreds of 
illegal employees in a series of small weekly dismissals, and 
the illegal aliens were allowed to walk free and in a way that 
would allow them to seek employment elsewhere.
    A recent story on Minnesota Public Radio recounts a similar 
practice where 1,200 illegal aliens were found employed in 
well-paid janitorial jobs, but instead of detaining and 
deporting them, the officials went to great pains to assure the 
public that they were not being arrested.
    When we spoke about worksite enforcement at the last 
hearing, you told me, ``We continue worksite enforcement,'' and 
``we continue all our enforcement actions, and we will very 
vigorously.''
    In your written response to questions for the record, you 
also stated ICE's new worksite enforcement strategy would 
``target employers who knowingly hire illegal labor, while 
continuing to arrest and remove illegal workers.'' You promised 
that, ``Worksite enforcement operations will continue, 
administrative arrests of illegal aliens will occur, and ICE 
will conduct worksite enforcement investigations of any 
business, regardless of size, that is suspected of knowingly 
employing unauthorized workers.''
    So how do you square those statements with the numbers that 
indicate a significant reduction in enforcement actions?
    Secretary Napolitano. Well, Senator, I am glad to answer 
those questions because I think it is important to emphasize 
all of the work that has been done on the interior of our 
country to enforce the immigration laws. And just let me 
repeat, this year, since I have been Secretary, ICE removed a 
record number of illegal aliens and a record number of criminal 
aliens. And what we are doing is really focusing on those in 
the interior of the country who have broken the law and also 
those who impact the public safety.
    Now, with respect to worksite enforcement itself, we have--
and if we have not supplied you with these numbers, I would be 
happy to do that--a record number of businesses and individuals 
debarred from Federal contracting for immigration violations; a 
record number of notices of intent to fine--and I agree with 
you, the fines are too low. It is one of the things that I hope 
that Congress will take a look at when it addresses immigration 
reform--final orders to cease violations at record highs. We 
have literally done dozens and dozens of worksite enforcement, 
and I think one of the key differences that I would like to 
emphasize is almost a change in intent as we go into a 
worksite. When we go into a worksite, our focus, our intent now 
is to go after the employer him- or herself, themselves, 
because they are creating the demand, and you have to deal with 
immigration as a supply and a demand issue.
    That is difficult under the current law, I will say, 
because the current law does not give us some of the 
enforcement tools we would like to do that. But that is why I 
think you have to look at all of the numbers, not just a few, 
to see that there has actually been more worksite enforcement 
this year than in prior years.
    And, last, I would reiterate E-Verify. E-Verify is a fast-
growing system. It is a way that is easy. It is continually 
being built, improved, what have you, for employers to verify 
that the employees that they are hiring are here in the country 
legally. And I hope to keep driving the immigration system as a 
whole toward employer use of E-Verify.
    Senator Sessions. Thank you. The border area is very 
important, and progress is being made there. But we do need to 
reduce that jobs magnet, particularly in a time of record 
unemployment for our country.
    Secretary Napolitano. I agree.
    Chairman Leahy. Thank you, Senator Sessions.
    Senator Feingold.
    Senator Feingold. Thank you very much, Mr. Chairman. Madam 
Secretary, thank you for being here.
    FEMA has now obligated $44 billion in response to 
Hurricanes Katrina, Rita, and Wilma since 2005. However, 
according to the Excluded Parties List System, the EPLS 
database, FEMA has not suspended or debarred a single 
contractor. Does this mean that your Department maintains that 
no FEMA contractor has committed fraud during the 
reconstruction efforts or otherwise?
    Secretary Napolitano. Senator, let me have the opportunity 
to take a look into that and give you a more thoughtful 
response later.
    Senator Feingold. Do you have any initial sense of----
    Secretary Napolitano. I have made no such conclusion, but I 
do not know whether there are any actions that are underway, 
and that is what I would like to check for you.
    Senator Feingold. Well, I would very much appreciate that 
response and really would like to know if this EPLS database is 
being used properly, if, in fact, there have been fraud 
investigations. And if not, I would like to know why not.
    Secretary Napolitano. Fair enough.
    Senator Feingold. In August of this year, the Department 
issued new policies governing searches of travelers' electronic 
devices, such as laptops or iPods, at the border. I am deeply 
disappointed with the policies the Department adopted and, in 
particular, the refusal to adopt any sort of standard for 
searching U.S. citizens at the border.
    Madam Secretary, in addition to the inconvenience they 
cause international business travelers, these policies also do 
nothing to assuage concerns that the Department could be 
engaging in racial profiling when it conducts these border 
searches. This is unacceptable, and that is why I am planning 
to reintroduce the Travelers' Privacy Protection Act in the 
coming months. I have been told that the Department was at 
least attempting to increase oversight and transparency related 
to these searches, but given the vastly different standards 
that are laid out for ICE and CBP under the two policies, it is 
unclear whether even that goal has been accomplished.
    The two policies, when read in tandem, seem to create a 
series of loopholes that would allow these electronic devices 
to be held and searched for long periods of time without 
requiring a showing of probable cause.
    For example, isn't it true that CBP agents have to obtain 
supervisory approval to keep a laptop for more than 5 days, but 
an ICE officer does not have to obtain any additional approvals 
to hold and search a laptop for up to 30 days?
    Secretary Napolitano. Well, but we are talking about 
seizures at the border, and that would be conducted by CBP.
    Senator Feingold. That is my point, though. Isn't there a 
differential between the two agencies with regard to laptops or 
iPods, depending on the agency?
    Secretary Napolitano. Senator, yes, but I think we would 
differentiate based on the different types of investigations 
that each of those components perform.
    Senator Feingold. As I understand from discussions with 
your staff, it is really ICE officers who are conducting all 
in-depth searches of electronic devices and, hence, it is the 
ICE policy, not the CBP policy, that would apply. Is that 
correct?
    Secretary Napolitano. I would have to have a greater 
context. I think we have to step back and look at what is it 
that we are doing from a law enforcement perspective. First of 
all, we have changed the policy with respect to search of 
electronic media, particularly the laptop. That was the genesis 
of the original set of questions I think that you posed at my 
oversight hearing a few months ago. That policy was revised 
significantly to have more supervisorial oversight.
    The plain fact of the matter is that we seize electronic 
media; sometimes ICE seizes it in conjunction with a criminal 
investigation; sometimes the Secret Service seizes it in 
conjunction with a criminal investigation. But the concern was 
raised with respect to business travelers who are traveling 
internationally being stopped at the border, and that is the 
policy that we have revised, provided more supervisorial 
import.
    But I also have to say, as someone whose agency is 
responsible for the counterterrorism mission, or partially 
responsible for it, that this is an important capacity for us 
to have as a law enforcement matter.
    Senator Feingold. I do not doubt that at all, but I am 
looking for some appropriate trigger for this kind of search, 
which I think is serious business, and for consistency between 
the different agencies.
    Secretary Napolitano. Senator, if I might, at the border 
the law has been for many years now that the reasonable 
suspicion standard does not apply for somebody entering the 
country and at the border. And if the question is why don't you 
apply the same standard at the border as is done in the 
interior of the country, where you would have to have a higher 
standard, the answer is because entry into the country is 
something that is not viewed as an absolute right, and that is 
why the law in that area differentiates the standards for 
search.
    Senator Feingold. Madam Secretary, we will continue to 
discuss that over time.
    Over the last several years, DHS has substantially 
increased its reliance on state and local law enforcement 
authorities to enforce federal immigration laws, including 
recent expansion of 287(g) partnerships with law enforcement 
and the Secure Communities Program. Both of these programs have 
stated that their goal is to remove dangerous criminal aliens 
from local communities, and yet there have been numerous 
reports of widespread abuse of these programs by law 
enforcement, including selective enforcement of certain laws 
against Latinos and other minorities and pre-textual traffic 
stops and other arrests for minor violations. I think this is 
unacceptable, especially because most of the law enforcement 
communities that have signed on to these agreements do not have 
policies prohibiting racial profiling.
    I understand that DHS has tried to address some of these 
concerns by coming up with a standard 287(g) agreement that 
will require law enforcement to prosecute any charges that they 
file against an individual they arrest, but I do not think this 
will get at many of the concerns civil rights groups have 
raised about arrests for minor traffic offenses and 
immigration-related charges.
    So if the goal of these programs is to prioritize the 
arrest of dangerous criminals, why not set clear guidelines 
that limit arrests and referrals to felonies?
    Secretary Napolitano. Senator, in effect, that is what has 
happened, because what we did is we took 287(g)--and, by the 
way, we still have--there has been some suggestion made that we 
have reduced it. No. We have refocused it on two areas. One is 
in the jails, to run immigration checks in the jails, and that 
way it and Secure Communities are complements of each other. 
And second is in conjunction with Federal task forces whose 
priorities are Federal fugitives and felony gang members--you 
know, the higher-level criminals who impact public safety.
    Senator Feingold. Well, if that is the effect, why not have 
the guidelines say that?
    Secretary Napolitano. Well, Senator, I think that that in 
effect is what happens, and those agreements now have all been 
renegotiated and signed.
    Senator Feingold. Well, I would urge that the guidelines 
reflect that purpose, which is to get at the more serious 
offenses. But I thank you for your answers.
    Chairman Leahy. Thank you.
    Senator Kyl.
    Senator Kyl. Thank you.
    Madam Secretary, Governor, thank you for being here. You 
spoke earlier about the TSA breach. I applaud you for adding an 
IG review to that. Could I also make another recommendation? 
That is, when breaches like this occur in the intelligence 
community--CIA, for example--they do a damage assessment by a 
red team, by somebody not within the agency itself, to 
determine what advantage a potential inmate could have gotten 
from the information, and then usually make recommendations 
about what procedures or other actions are necessary to 
ameliorate that damage.
    If you have not decided to do that already, could I 
recommend that you do that and, when it is done, provide the 
Committee with a classified version of the report? And, by the 
way, ordinarily these things are best done really quickly. Any 
comment?
    Secretary Napolitano. Senator, yes, that is something we 
have been looking at. I think my first question has been, well, 
what exactly was put out there that was not otherwise 
available, either by observation of an airport checkpoint or 
the like. But, indeed, if it is ascertained that there was some 
serious information not otherwise available that was put out, I 
think the red-teaming issue is something I would consider, 
absolutely.
    Senator Kyl. Well, just from public reports, there are 
clearly things you do not want out there--spelling out the 
settings on the x-ray machines and explosive detectors, 
passenger and luggage screening details, pictures of 
credentials that are authorized, those kinds of things. 
Clearly, somebody could take advantage of those things, and I 
think it is really important that not Department of Homeland 
Security but somebody outside the Department make that 
evaluation.
    Secretary Napolitano. Right, Senator. I think that is one 
of the genesis for the IG taking a look at it, and it is a 
suggestion I am happy to entertain.
    Senator Kyl. Please. Secondly, you know of my support for 
something called Operation Streamline, a method by which you 
deter illegal immigration by charging those who repeatedly 
cross the border illegally with misdemeanor offenses and 
ensuring that they have jail time. There are two basic 
questions I want to ask you about that.
    First of all, I was disappointed that the only mention in 
the conference report of this is a report that I had asked to 
be done to determine what resources both your Department and 
DOJ would need to make available to maintain and expand this 
program. It has been very effective in two areas that I know 
of, and my understanding is that it has had a rocky start in 
the third: Del Rio, Texas; Yuma, Arizona, both very, very 
effective; Tucson sector I do not think has been fully 
implemented, and I think part of the reason may be a lack of 
detention space. So two questions.
    What are your plans with expanding Operation Streamline? If 
so, where do you think it might be? And then, secondly, I will 
get into the question of detention space with you.
    Secretary Napolitano. Right, Senator. I think that, first 
of all, I support Operation Streamline; I think it is 
effective. I think with respect to the Tucson sector, which is 
by magnitude the largest sector that we have, that provides 
some logistical difficulties. I think we have the bed space 
available. I think we are solving our detention issues.
    We have had an issue with the Ninth Circuit recently vis-a-
vis Streamline that has--it just came down a couple of days ago 
about how pleas are done in Streamline matters. And given the 
volume of cases--and I know you know that courthouse well--we 
have had to be working now down there in terms of how are we 
going to operationally address the court of appeals' concerns 
so we can continue building Streamline in the Tucson sector.
    And while I am not free to discuss the President's budget 
at this time, obviously, I can say that it in my view fully 
addresses some of our issues on the southwest border.
    Senator Kyl. Well, thank you for that. This study that is 
required will ask you to report to use your evaluation of what 
else you need to expand the program effectively. I am concerned 
because the conference does not increase detention space at 
all. It does include some money for alternatives to detention, 
but, of course, alternatives to detention is exactly not the 
point with Operation Streamline. The whole point there is the 
deterrent effect of detention.
    Secretary Napolitano. Yes, and the issue there, however, is 
if you can take some of the other detainees and put them in 
alternatives to detention, you can put your Streamline 
detainees in a hard bed.
    Senator Kyl. Sure. If you think the detention is adequate, 
though, I think we will need to--I would respectfully request 
that you include that argument in the study that you perform 
for us, because I think there is a concern, at least among some 
of us in the Congress, that we need additional detention space, 
especially to make something like Operation Streamline work.
    Secretary Napolitano. Thank you.
    Senator Kyl. Obviously, this also gets to the question of 
the security of the southern border. It is not secure yet, and 
the first line of defense are the Border Patrol agents. The 
bill for funding this year only calls for an additional 100 
agents, but the conference report also requires that the 
northern border increase agents by about 700, from 1,525 to 
2,012. Obviously, they have to come from somewhere, presumably 
the southern border. Wrong. I mean, we cannot do that, 
especially if we are going to try to--well, I guess one 
question: Do you still intend to try to reach the goal of 
20,000 agents? Second, how will we maintain--you have said that 
your goal is to maintain a force of 17,000. Of course, we have 
17,415, as I understand it, and need more.
    So how do you square all of these numbers and the fact that 
the Obama administration only requested funding for 100?
    Secretary Napolitano. What we are doing, I think, to get to 
the root of your question, Senator, is how do we keep meeting 
our Congressional marks on the southern border in terms of 
number of agents and meet our Congressional marks on the 
northern border without subtracting from one to get to the 
next. The answer is our staffing plan calls for us--what we are 
going to do is reduce headquarters staffing, and we are going 
to reduce academy staffing at the Border Patrol in order to 
make sure that we hit both of those marks and stay within the 
financial needs of the country.
    Congress has been very clear that, you know, we need to be 
as rigorous budgetarily as we can be, so we really did a scrub 
inside and said, all right, now where can we move some FTEs to 
get to our agent----
    Senator Kyl. That is good. May I just interrupt, though, 
and ask what is the mark for the southern border for next year 
in terms of active agents?
    Secretary Napolitano. I will have to get you the exact 
number, but it is right around 20,000.
    Senator Kyl. OK. I appreciate it.
    Secretary Napolitano. It is the congressional mark.
    Senator Kyl. OK. Also, I have got a couple other questions. 
My time has expired, so I will submit those for the record, and 
thank you again.
    Secretary Napolitano. Thank you.
    Chairman Leahy. Thank you, Senator Kyl.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Chairman. Welcome.
    Secretary Napolitano. Thank you.
    Senator Whitehouse. If you do not mind, I would like to 
briefly shift the topic to----
    Chairman Leahy. Senator Whitehouse, I wonder if you would 
mind, Senator Cardin was--and I did not see him standing there. 
He is actually supposed to be next.
    Senator Whitehouse. And he is the senior member of our 
class of Senators who came in 2 years ago, so I owe him very 
great deference.
    Senator Cardin. I appreciate the courtesy. I am prepared to 
wait for Senator Whitehouse and then I guess Senator Cornyn, 
and I will be prepared to question.
    Chairman Leahy. Then, Senator Whitehouse, go ahead.
    Senator Whitehouse. Well, I thank Senator Cardin.
    Chairman Leahy. I thank both Senators.
    Senator Whitehouse. On cyber, we had a hearing. It is good 
that Senator Cardin is here. He held it in his Judiciary 
Subcommittee. Your Deputy Under Secretary Phil Reitinger from 
DHS was there, associate Deputy Attorney General James Baker 
was there, and the senior officials from NSA and the FBI were 
there. And I asked them if any of them were satisfied with the 
existing legal structure within which the cyber defense effort 
currently operates, and I got a unanimous array of ``No'' from 
each of them.
    There is, I understand, an interagency process that is led 
by or through the National Security Council, but given all the 
responsibilities of the National Security Council, I am not 
entirely comfortable that that is a good and lasting governance 
structure for our cybersecurity efforts. I see that more as an 
interim structure, and I would love to hear your thoughts on 
the adequacy of the present legal structure, whether you concur 
with the views of the other officials who spoke at Senator 
Cardin's hearing, and where you think our governance of our 
cybersecurity efforts should go, bearing in mind that a lot of 
principals at the Cabinet meeting have a piece of this issue.
    Secretary Napolitano. Well, I think, Senator, two things. 
One is you are right, the legal parameters in which we are 
handling some of the cyber issues are being looked at very 
deeply now. I would say it is not simply a domestic issue in 
that regard. It is an international issue, because obviously 
the networks are international in scope. Some of the logistical 
issues involve things like servers that are not located in the 
United States, but, yes, that is part of an interagency process 
that is ongoing.
    With respect to how that is organized, I think that what, 
in fact, has happened is that DHS has moved, as the President's 
Policy Review suggested, to be the lead agency for the 
protection of the dot-gov sites as well as intersection with 
the private sector on dot-org and dot-com sites. And, indeed, I 
just had some meetings in Silicon Valley not too long ago. Phil 
has been out there quite a bit talking with the private----
    Senator Whitehouse. Although, if I could interrupt on that, 
ultimately DOJ will have the lead on all of the legal 
determinations. That is their lane of the road. Ultimately, 
other agencies will have the technical lead because of the 
technical complexity of undertaking the efforts that we do. And 
when you take out the technical aspects and the legal aspects, 
it is hard to see how Homeland Security ends up with a very 
strong platform for persistent leadership unless there is some 
vehicle for coordinating the DNI and you and the Attorney 
General and everybody together. And I am not comfortable that 
that presently exists. I think the NSC has set a good interim 
measure, but it would seem that that should devolve into a more 
formal cyber-specific governance structure at some point. And 
are you really confident that DHS at the top of that orbit with 
everybody else in the layer below it is the appropriate--
shouldn't there be a White House leadership on this?
    Secretary Napolitano. Well, I think there is White House 
leadership through the NSC process, but I would suggest, 
Senator, that the DHS platform is actually much more 
significant than your question suggests.
    I was just, for example, out in Virginia at the ribbon 
cutting for the NCCIC, which is a huge computer center that is 
part of the DHS structure now. Of course, we are working with 
DOJ on matters that are investigatory in nature for when they 
need to bring cases, and our alliance is very, very close.
    The NSA, with all of its technical capacity, provides 
assistance both to us and to DOD which has the lead, obviously, 
on the dot-mil side of the world, and we take our road map from 
the President's review. Now what we have been focusing on--and, 
by the way, Phil is a former DOJ prosecutor, so the alliance 
there could not be closer.
    But, in any event, we take our review organizationally in 
terms of how the cyber world is divided from the policy review, 
and one of our key things we are focused on now, quite frankly, 
is staffing up.
    Senator Whitehouse. Well, in my last minute, let me just 
ask more precisely, are you comfortable with the existing 
governance structure? Or is that still a work in progress? And 
can we expect a more permanent governance structure for the 
defense against cyber attacks to emerge as the interagency 
process goes forward?
    Secretary Napolitano. Senator, I would think that there is 
an evolution, but I would suggest, if this is where the 
question is going, that the presence or absence of a czar per 
se is not the way we have organized to me what ultimately will 
evolve. To me what ultimately will evolve out of this is a very 
robust coordination component within the NSC structure with on 
the operational side DHS on the lead, as I have suggested, for 
dot-gov intersection on the private sector with dot-org, dot-
com, and DOD on the dot-mil side.
    Senator Whitehouse. Thank you. My time is expiring. And I 
believe Senator Cornyn now has the floor.
    Senator Cornyn. Thank you very much.
    Madam Secretary, good morning. Good to see you.
    Secretary Napolitano. Good morning.
    Senator Cornyn. I know last Wednesday you testified before 
the Commerce, Science, and Transportation Committee on security 
challenges post-9/11, and one question had to do with whether 
you were consulted by the Attorney General before the decision 
was made to try Khalid Sheikh Mohammed and other 9/11 co-
conspirators in New York--or at least attempt to try them 
there, since you know and I know a judge will ultimately decide 
where that trial will take place. But were you consulted?
    Secretary Napolitano. No, I did not talk with the Attorney 
General. That is a prosecution decision as to where and in what 
venue to bring a case, and I believe that properly is held by 
the AG.
    Senator Cornyn. And I agree that the Attorney General is 
the one that makes that decision, at least preliminarily. Of 
course, the President of the United States is going to have to 
make a decision whether the military authorities will, in fact, 
turn the detainees over to the civilian authorities. I assume 
that permission, that authority will be granted, since I cannot 
imagine the Attorney General would have announced this decision 
without at least some indication from the President that he 
agreed with him.
    But the question I have for you is I asked the Attorney 
General about some of the immigration-related issues, and I 
know that you know that seven Senators on the Committee wrote a 
letter in November asking for further detail on the immigration 
status of these detainees. Do you have an opinion as to what 
sort of legal status would be conferred on these detainees once 
they are brought to American soil and what implications that 
might have in terms of, if they were acquitted or charges were 
dismissed, whether they would be able to be detained 
indefinitely or not?
    Secretary Napolitano. Yes, Senator, and we have sent you a 
formal response to your letter. But here is the way it works, 
and that is, for example, for a detainee who is brought here 
for purposes of prosecution, they are paroled--and that is the 
technical term used, but they are paroled into the country only 
for purposes of prosecution. There are no immigration benefits 
that accrue to that.
    And with respect to the second part of your question, if 
there were to be an acquittal, then what would happen is we 
would immediately take that individual and move them into 
removal proceedings from the country.
    Senator Cornyn. So that would be litigation?
    Secretary Napolitano. Well, they would go through that 
process, but we would remove them from the country.
    Senator Cornyn. But there is no----
    Secretary Napolitano. They get no immigration rights in 
that context that are any different than the fact that they 
have no immigration rights per se where they are right now.
    Senator Cornyn. And where would you remove them to if their 
home country would not take them back? Back to Gitmo?
    Secretary Napolitano. Senator, those are questions that I 
do not like to answer on a speculative basis.
    Senator Cornyn. On a speculative basis?
    Secretary Napolitano. Yes, sir. I think that, first of all, 
you have to--first of all, the question that was raised in the 
letter to me was: For what purposes do they enter the country? 
Are they able, for example, to apply for asylum or refugee 
status? The answer is no. They are only brought into the 
country for purposes of prosecution, and in the off chance that 
there were to be an acquittal for those individuals, they would 
immediately be put into removal proceedings and deported from 
the country.
    Senator Cornyn. Well, Madam Secretary, I understand that 
would be your intention, but certainly they would, once in the 
country, have some legal rights, would they not, to--and 
possibly you would not be the one making that decision, 
possibly some judge would be making that decision.
    Secretary Napolitano. Senator, they are only--and there is 
statutory language to this effect, but they are only brought 
into the country for purposes of prosecution.
    Senator Cornyn. Well, I guess this goes to my questions I 
had for General Holder, and that is that while he says he made 
a decision that these individuals could be safely tried in 
Manhattan, as I alluded to earlier, a judge is going to decide 
on a change of venue whether or not they are going to be tried 
there or somewhere else. And certainly once they are brought 
into the country, if they have certain additional rights as a 
result of their presence on American soil, you are not 
necessarily going to be the last word. A judge, if they invoke 
the jurisdiction of the courts, is ultimately going to make 
that decision.
    You know, I asked General Holder what happens if for some 
reason, since the administration has made the decision that now 
detainees will be treated like criminals rather than enemy 
combatants under the laws of war, and some court decides that 
when Khalid Sheikh Mohammed asks for a lawyer and he was denied 
a lawyer and because of coercive and enhanced interrogation 
techniques that his testimony cannot be used and somehow 
decides that he cannot be tried in an Article III court, what 
guarantees do we have that he can be detained indefinitely, 
either here or somewhere else?
    Secretary Napolitano. Well, Senator, again, I think what 
the Attorney General decided is based on a firm conviction in 
the values inherent in the criminal justice system and the 
American court system and that this trial can be held, and held 
successfully in New York City.
    Senator Cornyn. Well, I think what concerns me the most is 
that actually I think the decision was not fully vetted and 
thought out in terms of what the potential consequences would 
be. I have no doubt as to what the Attorney General's 
intentions are, but he is not the final judge, so to speak, and 
someone else will be making that decision.
    For example, as you know, the Supreme Court has said that 
you cannot indefinitely detain someone in this country under 
the Zadvydas decision, and the question is: If they are not 
available for repatriation to their home country, where will we 
keep them?
    Anyway, you get my point. I understand the Attorney General 
has not signed off on the letter yet. We have not gotten it 
yet. But we----
    Secretary Napolitano. You should get it today.
    Senator Cornyn. We look forward to that.
    If I can just ask you one last question quickly about 
smuggling, human-smuggling initiatives. I was in the Rio Grande 
Valley recently, and ICE briefed me on the problems they are 
having with wire transfers by criminals and drug cartels to 
traffic in narcotics and smuggle people. I am, frankly, 
impressed with the good work they have done, but they tell me 
they need some additional legal resources. For example, on many 
of the money transfers, people can claim to be somebody they 
are not, and there is not adequate identification which will 
allow law enforcement officials to trace the source of the 
funds.
    Are you aware of that issue generally? And what I am 
offering is if there are additional legal authorities that your 
Department needs or ICE needs in order to track down and 
prosecute these wire transfers involving narcotics or human 
smuggling, we would be glad to work with you on that.
    Secretary Napolitano. Thank you, Senator, and I am very 
aware of that issue. That is something that I worked on when I 
was Attorney General of Arizona, among other things, and I 
would hope when the Committee takes up the issue of immigration 
that some of those tools could be contemplated.
    Senator Cornyn. When will that be?
    Secretary Napolitano. Well, the Chairman indicated in his 
testimony that he would like to take it up next year.
    Chairman Leahy. I was one of those who worked with former 
President Bush and complimented his efforts on a comprehensive 
package, and I would hope that we can get back to trying that. 
I think that is something that is going to require Republicans 
and Democrats to come together. I think it can be done. I do 
not think anybody, no matter where you are in the political 
spectrum, feels the system we have today is working perfectly 
by any means. And I would hope that we have a comprehensive 
bill, and I think that the efforts will be there, and I would 
certainly be willing to work, obviously, as I have on so many 
other issues, with the Senator from Texas and everybody else on 
this.
    Senator Cornyn. Mr. Chairman, I look forward to that. You 
know, we have tried and I hope we will try again to address 
comprehensive immigration reform. Narrow issues like providing 
ICE the information they need in order to track down these wire 
transfers to me seems like such a narrow issue. I hope it does 
not wait on the necessary----
    Chairman Leahy. I would hope some of those things could be 
done in the meantime. That is a basic law enforcement matter, 
and we should be able to do it.
    Senator Cardin, you have been waiting patiently. I thank 
you again for your courtesy in allowing Senator Whitehouse to 
go ahead. Please go ahead.
    Senator Cardin. Thank you, Mr. Chairman.
    Madam Secretary, it is a pleasure to have you here. I am 
actually going to follow up first on Senator Whitehouse's 
comments on cybersecurity. The hearing I conducted in the 
Terrorism Subcommittee was rather sobering, the vulnerability 
of America, that we know that there are nation states that are 
actively trying to compromise our cybersecurity in the United 
States. We know that these efforts could lead to soldiers or 
terrorists or criminals invading our country through 
cyberspace.
    One of the sobering numbers that came out at that hearing, 
Madam Secretary, is that when asked how effective are we in 
preventing this, the 80-percent number came out, which would, I 
think, be very damaging to think that there is a 20-percent 
success rate. Now, admittedly, a lot of it is private 
resources, not always Government resources that are being 
attacked. But it does mean that we are losing billions of 
dollars a year through cyber attacks. It does mean that we are 
vulnerable to a hostile force trying to come in and interfere 
with our cyber information, compromising our energy sources, 
our financial systems, our military.
    In your response, you talked about the fact that we have a 
review going forward, and there is an issue now as to whether 
there needs to be a more focused person within the White House 
or whether the Department of Homeland Security should take the 
lead. Clearly, NSA plays a critical role here. The Department 
of Defense has their own.
    I still am concerned as to whether we have a game plan in 
place. The initial review showed that there was still a lot 
more that needed to be done. This is an urgent issue, and I 
just want to emphasize the urgency of action here.
    Now, there are two parts to this. I would like to have you 
respond to both. Senator Whitehouse mentioned is the legal 
basis adequate, adequate for effectiveness in getting the 
information we need and to have in place what we need to 
protect our Nation, but also privacy. When we look at EINSTEIN 
II, there is a concern that there is personally identified 
information that may be available. We are not sure that we have 
in place adequate oversight to make sure that we minimize 
invasion of individual privacy. And now as we move toward 
EINSTEIN III, those same concerns are in place.
    So we want you to work with us to make sure that we have 
institutionalized the protection of privacy for American 
citizens on personal information that is not needed for our 
security. But then, second, we want to make sure that we have 
in place adequate laws and structures so that we can counter 
the vulnerability that bad players are trying to perpetrate on 
the United States.
    I am particularly mindful that NSA, located in Maryland, 
the premier collection agency in the world, is actively working 
on this, and I just call to your attention to give this matter 
the highest attention.
    Secretary Napolitano. Well, Senator, I could not agree with 
you more. Indeed, I believe that the cyber mission is one of 
the major missions of the whole homeland security environment. 
It is also a rapidly evolving one and changing one. Almost by 
the time you are talking about a particular intrusion, it is 
past, and you are on to the next one.
    So I just want to clarify, if I might, one thing, and that 
is, I do not think there is any confusion, at least amongst the 
Cabinet, as to the division of labor; that is, the Department 
of Defense operationally has a dot-mil side; the Department of 
Homeland Security, the dot-gov, plus the intersection with the 
private sector; that the NSA provides technical assistance to 
both. The institutionalization of privacy, the protection of 
privacy issues is built now into our own DHS process. So from 
an operational standpoint, we have moved in a way past the 
initial review. The question I think Senator Whitehouse had 
goes to somebody coordinating operational efforts in the case 
of a major attack from the White House.
    Senator Cardin. Well, I think that was his concern, but I 
think he was also concerned on the broader issues to make sure 
that we have in place the coordination that requires 
interagency, and whether that is adequately addressed under the 
current chain of command. I think that is still an issue that 
we are not quite confident is in place. The review by the 
President seemed to indicate that that was not clear. I know he 
has taken steps to counter some of that, but at least the 
initial information from the review indicated that there was a 
need for stronger coordination.
    Secretary Napolitano. Senator, I think that is correct, and 
I think in the months since that review, a great deal of work 
has been done, but will continue to be done in this regard. 
Again, this was an area, if I might say, that we have really 
put a priority on over the last year, and one of our chief 
challenges right now, one of the key priorities we have is 
really speeding up the hiring process to bring on more 
individuals who work in this arena.
    Senator Cardin. Well, I thank you for that, and we really 
want to work with you closely on that.
    Secretary Napolitano. Thank you.
    Senator Cardin. Another hearing we had in our 
Subcommittee--we get all the tough topics. We have a high-
containment lab in the United States, and obviously of concern 
here was the anthrax attack on the Congress itself. Fort 
Detrick, which is located in Maryland, is moving forward with 
this BSL-4 lab which we are proud of the work that is being 
done there by very dedicated people dealing with some of the 
most challenging risks against America.
    There is also here an issue of coordination. There are a 
lot of Federal agencies that are involved in dealing with our 
high-containment labs, and there have been some reports here 
indicating--I know that the Committee on Homeland Security, 
Senator Lieberman and Senator Collins have filed legislation. 
Part of that would be to try to deal with select agent lists by 
tier so that there are added precautions to those who deal with 
those chemicals and agents that could very well be used as a 
weapon of mass destruction and to require greater background 
checks, greater security issues, training, et cetera, greater 
inventory controls, et cetera, at Tier 1.
    Have you had a chance to review those recommendations? And 
do you have any view on it?
    Secretary Napolitano. I have reviewed them and have 
discussed them with members of the Department, including the 
newly confirmed Under Secretary for Science and Technology, Dr. 
O'Toole, who is really an expert in this whole area. The way we 
look at it is that the Department of Homeland Security provides 
standards that would need to be met, in a way similar or 
analogous to what we have been doing in the chemical arena in 
the CFATS process where you have the tiering, as you suggest, 
1, 2, 3, and 4, and you have an engagement process by which 
laboratories are tiered and standards established.
    Senator Cardin. Well, I would just urge you that we need to 
have a system that promotes best practices, but we also--
because there are a lot of good things going on, but we also 
need to have much more sophisticated background checks, et 
cetera, and continuing review for those who have access to 
those items that could very well be part of a weapon of mass 
destruction. And I think Senator Lieberman's point is to try to 
move us in that direction. I know there have been other 
recommendations, and I hope that we can move quickly on these 
issues as well.
    Secretary Napolitano. I concur.
    Senator Cardin. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    Senator Feinstein has been waiting here patiently for an 
hour. Please.
    Senator Feinstein. That is quite all right. Thank you very 
much, Mr. Chairman.
    Madam Secretary, I just wanted to talk to you for a moment. 
I am really concerned that we may be unwittingly presiding over 
the demise of American agriculture. I have never seen it more 
stressed. I come from the largest agricultural State in the 
Union. California is a driver, sometimes for good, and 
sometimes a driver for not so good. But what we see happening 
are growing numbers of farmers moving to Mexico, operating 
lands in Mexico, hiring Mexicans, and importing into this 
country. I will give you one example. A man by the name of 
Steve Scaroni has moved 2,000 acres and 500 jobs from his $50 
million operation in California, to Guadalajara. Today he 
exports to the U.S. 2 million pounds of lettuce a week, and he 
has spent thousands of dollars to startup his new farms and 
train workers.
    That is what is happening. Western Growers tells me that at 
least 84,000 acres of farmland from California and Arizona are 
now in Mexico, and at least 22,000 ag jobs formerly in these 
two States are now in Mexico. And we see it in apples. We see 
it in dairy. We see it in pears. We see it in row crops. And if 
you add to that some of the other economic stressors, for the 
first time in my lifetime I have seen farmers in bread lines in 
the Central Valley. And you add to this your I-9 audits, which 
send a chilling effect over the rest of agriculture, 
respectfully I do not agree with the Ranking Member. I think we 
are destroying agriculture because, like it or not, agriculture 
depends on a non-domestic workforce to the greatest extent. 
Virtually all of the big ag States do. And I think we have to 
recognize it.
    And so I have been increasingly concerned by the inability 
to move any legislation that would give some protection to 
workers who are committed to work agriculture for a period of 
years, and that, namely, is AgJOBS. The current H2-A seasonal 
worker program will not do it. If you are 24/7, 365 days a 
year, the H2-A program will not do it. And I am increasingly 
concerned by what is happening. Of course, the product of this 
is that we import more food produce from outside our country, 
and, which has raised concerns about food safety and 
salmonella, as there were with peppers and other things coming 
into the country in the summer of 2008.
    I think a country that is strong really should be able to 
produce its own food, but you cannot do it with domestic labor. 
That is just a fact. So we have to have public policy that 
deals with it.
    I wanted to say that to you publicly because I hammer it 
and hammer it, and no one pays attention. It is as if we are in 
this great thrust to drive anybody that is illegal out of this 
country no matter how valuable their services may be.
    Another problem that I have had is the Visa Waiver Program. 
I believe the Visa Waiver Program essentially is the soft 
underbelly of the visa system. Now we have 35 countries in it. 
We have 16 million people coming in. I believe about 40 percent 
of the undocumented population comes from people who have 
overstayed their authorized visit in the United States. I have 
always suspected people come in on a visitor's visa and they 
just decide to stay, and that is a large part of the 
undocumented population.
    So let me ask you this question. What steps has DHS taken 
to begin to track who has entered the United States through the 
Visa Waiver Program and if they have left or overstayed their 
visit?
    Secretary Napolitano. Senator, we have taken a number of 
steps on the visa overstay issue, and I would be happy to 
supply you with a more complete briefing, or your staff with a 
more complete briefing, but particularly those who come in by 
air, tracking them as they come in, and now being able to 
measure better whether or not they have left. We are also 
working----
    Senator Feinstein. How do you do that specifically?
    Secretary Napolitano. Well, because we have better air 
travel documentation than we did before. For example, ESTA 
helps us, other programs that we are using help us. So there 
are mechanisms in place that are giving us better control, 
particularly in the air environment, who is coming in, who 
needs to be leaving.
    It leaves open, of course, the question of measuring those 
who are coming in, not leaving, or leaving on the land ports.
    Senator Feinstein. And how do you know today how many are 
leaving? And if you do know, what percent are actually leaving?
    Secretary Napolitano. I do not think that we can say with 
precision what percentage of visa holders stay over. But I 
think we can say that the issue of the visa overstays has been 
one of the kind of most difficult but top priority problems 
that we have been working on these last 10 months.
    Senator Feinstein. I know you have, and we have talked 
about it. To be candid with you, there still is no way to know 
if people have left, so, I mean, that is the nitty-gritty of 
this issue. Have people left the country? They are here for a 
specific period of time. The visa expires. Do they leave? I 
mean, even if it were a simple form, as in China, when you go 
into China you just fill out a slip in triplicate, whether you 
are business or pleasure, and where you will be staying. We do 
not even do that. So we do not know, essentially, if that 
visitor has left our country.
    Secretary Napolitano. Senator, first of all, we are getting 
more information on the incoming traveler, particularly in the 
air environment.
    Second, one of the ways that we are now picking up more of 
the overstays is by the enhancement of other activities that we 
are doing in interior enforcement. For example, as we expand 
Secure Communities--and we hope to in the next few years have 
it in every jail across the country--there will be a biometric 
that will be taken when you are booked, and if you are an 
overstay, we will pick you up right then and there. And, 
therefore, there will be a removal process instituted right 
then and there.
    So some of these other mechanisms that we have built up I 
think will help reduce that visa overstay problem.
    Senator Feinstein. I have been at this for many years now. 
When do you think we will have a system where we will be able 
to know if visa waiver travelers have left the country?
    Secretary Napolitano. Senator----
    Senator Feinstein. Because we keep increasing the pool of 
countries. When the visa waiver program was first established, 
it was limited to 8 countries. We are now 35 countries that 
people can come in without a visa. And yet we do not have the 
data as to whether they leave.
    The blame for the illegal immigration problem is put on 
poor people who come over the border, when it may not be the 
major part of the problem. We have no way of knowing.
    Secretary Napolitano. Senator, I think your comments 
illustrate some of, as you and I both know, the complexities of 
this issue. But one thing I would caution us against is the 
notion that we are going to build or should build a massive 
biometric exit system around the country. The expense and added 
value of that to security I think is dubious. There are other 
mechanisms better able to tell us not just about an overstay, 
but an overstay who is here to do us harm.
    Senator Feinstein. Thank you.
    Chairman Leahy. Thank you.
    Senator Franken.
    Senator Franken. Thank you, Mr. Chairman, and thank you, 
Madam Secretary.
    Since October 2003, 104 immigrant detainees have died in 
our custody, in the custody of Immigration and Customs 
Enforcement, and I am sure some of those were inevitable. But 
others were likely preventable.
    For example, in 2006, a man from Ghana died in custody from 
a heart attack after guards waited 40 minutes to provide him 
medical attention, let alone open his cell. They would not open 
his cell for 40 minutes.
    Last year, another detainee died after falling and 
fracturing his skull, and then, according to newspaper 
accounts, being shackled and pinned to the floor of the medical 
unit as he moaned and vomited, then being left in a 
disciplinary cell for more than 13 hours.
    An Ecuadorian woman, Maria Inamagua, died in a Minnesota 
facility 3 years ago. ICE found that her death was inevitable, 
but also found that she had not undergone her mandatory medical 
intake exam, despite being detained for 2 months.
    You inherited this problem. I know that. And I know that 
you are trying to fix it. But the first step in improving 
conditions is identifying the problem. So my question to you 
is: What went wrong here?
    Secretary Napolitano. Well, we did an extensive review of 
the detention situation at ICE, Senator, and I think several 
things which we have moved to correct. One is we decentralized 
it too much. We did not have ICE personnel on site. We did not 
have clear standards that we enforced. The contracting, 
particularly as we outsourced all of these detention 
facilities, was not all that it should have been.
    We now have moved--and we can brief your staff in more 
detail, but we have moved to correct all of those problems and 
to really evaluate that detention system and hold it to the 
standards that it should meet in any legal system.
    Senator Franken. Thank you. I want to now talk about 
immigrants, seekers of asylum. Every year tens of thousands of 
democracy and human rights activists who are victims of 
religious persecution and ethnic cleansing come to our borders 
to seek protection. These really are the huddled masses, and 
our asylum and refugee programs which protect these people and 
welcome them to our country are an important part of what makes 
us the land of the free. And Minnesota has a special place in 
these programs. As recently as 2006, we took more refugees than 
any other State except California.
    But right now ICE is detaining thousands of applicants for 
asylum, often for months at a time. In fact, in recent reports 
it is suggested that, if anything, more asylum seekers are 
being detained and for longer. Your Department has the 
discretion over whether or not to detain asylum seekers. Why 
are we increasingly detaining asylum applicants?
    Secretary Napolitano. Well, Senator, oftentimes what 
happens is someone who is in the country illegally is arrested 
and picked up, and at that point they claim asylum. They have 
not claimed asylum as they entered the country. We have some 
categories of individuals who are seeking asylum that we are 
looking at en masse as to whether or not they should fall 
within asylum eligibility. That is an interagency process we 
are working on with the State Department and the Justice 
Department.
    And then with respect to trying to move or increase the 
speed of the adjudication process, we are doing everything we 
can to look at methods to streamline, but there are certain 
limitations that are on that, limitations in terms of 
availability of hearing officers, availability of evidence 
adjudicators and the like.
    Senator Franken. Well, I have read about people who have 
come seeking asylum when they arrive, and they know that if 
they go back, they are--or they claim that when they go back 
they are going to be subject to violence or retribution, and 
they have been imprisoned. And in 2005, a Congressionally 
authorized bipartisan commission found that it was not 
appropriate to detain asylum seekers in prisons. That was 4 
years ago, but today asylum seekers continue to be detained in 
State and county jails alongside violent criminals, and they 
wear prison jumpsuits and they are shackled, and they are even 
put in solitary confinement.
    These are people who come and say they are seeking asylum. 
They are not criminals. ICE currently detains asylum seekers in 
several county jails in Minnesota. In October, you announced 
that you would take steps to better manage special non-
criminal, non-violent populations like asylum seekers. Will 
this include separating them from accused and convicted 
criminals and getting them out of prison-like conditions? I 
would encourage that.
    Secretary Napolitano. Senator, yes, part of our overall 
detention reform is to really do a risk analysis for every 
individual who comes into our system, and if they are not felt 
to be a danger to the community or else-wise, to look at how 
they should be housed and under what conditions. And so not 
everybody needs to be housed in the same way as your question 
implies.
    Senator Franken. Well, just following up on that, there is 
a credible fear interview to determine whether these people 
have a credible fear, and very often they continue to be 
detained after it has been determined they have a credible fear 
if they go back.
    Secretary Napolitano. Right, and what we have been doing is 
working with our field officers to increase and speed up the 
process by which they are paroled into the country temporarily, 
if there has been adjudication of credible fear.
    Senator Franken. OK. Well, thank you. And I would encourage 
that.
    Secretary Napolitano. Yes, absolutely.
    Senator Franken. Thank you.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    Senator Specter.
    Senator Specter. Thank you, Mr. Chairman, and I join my 
colleagues in welcoming you here, Madam Secretary, and I 
commend you for the good job you are doing.
    Secretary Napolitano. Thank you.
    Senator Specter. I appreciated the meeting that you 
participated in when you were in Philadelphia some time ago 
about manufacturing vaccines, and we have seen a very serious 
problem with H1N1, the swine flu, vaccine with the delivery 
falling far behind what was anticipated because they are 
foreign manufacturers, by and large. Australia, illustratively, 
used it for their own purposes. And with respect to the 
possibility of bioterrorism, there is a long list of problems, 
potential problems--anthrax, botulism, Ebola, smallpox. And we 
seem to be bogged down in bureaucratic infighting between a 
couple of Federal agencies, with the rumor the Department of 
Defense and BARDA not wanting to see us go ahead--or DARPA not 
wanting to see us go ahead with HHS and BARDA. There have been 
briefings at the very highest levels with the Vice President 
and Secretary Sebelius, yourself, and OMB Director Orszag.
    My question to you is: Isn't this a problem of such a 
magnitude and with our experience with H1N1 that we ought to be 
moving ahead promptly to try to find some way to deal with 
vaccines should we have a bioterrorist attack?
    Secretary Napolitano. Senator, I think that, first of all, 
on the vaccine question, we are now catching up in terms of 
projections and availability of vaccine, and we still need to 
encourage the American public to get that H1N1 vaccine.
    Senator Specter. Our projections have not been too good so 
far.
    Secretary Napolitano. But the numbers are not--it is now a 
very robust production schedule, and it is meeting--we will at 
some point in December be at the number that we predicted in 
the fall--or the manufacturers, more specifically, predicted in 
the fall we would be at. But the real question, which is the 
availability domestically of manufacturing capacity, 
development capacity, I think the H1N1 episode reveals how 
useful it would be to have that capacity domestically.
    Going to the second part of your question, I think that 
that is an urgent issue for us with respect to other bio agents 
moving forward.
    Senator Specter. Well, thank you. I think it is urgent, and 
I am glad to have your concurrence, and see if we cannot break 
the logjam and move ahead.
    I turn now to another subject, and that is the subject of 
the jobs created by the EB-5 program which gives an individual 
who wants to become a U.S. citizen preferred status by 
investing $500,000 in the United States and creating at least 
ten jobs from that. And this has been an enormously successful 
program in Pennsylvania, promoted by Governor Rendell, and it 
has produced some $2,300,000,000 in investments and the 
creation of more than 6,000 jobs and the expectation 
immediately of 6,000 more jobs. And we have run into a very 
serious problem with regard to investments in one Pennsylvania 
project where there was a change in investment, and at the time 
the processes were made, there was a disclosure that there 
would be--the business plan specifically provided for 
alternative investments, and those alternative investments were 
made. And there are five investors who have put up $2,500,000 
and created a great number of jobs, and they had advice from 
the Deputy Chief of Service Operations Center of USCIS that 
there could be alternative investments. And now their status is 
being challenged, and their appeals have been denied.
    I have learned about this matter only recently and wrote to 
the Director of the U.S. Citizenship and Immigration Services 
and would ask consent that a copy of the letter be made a part 
of the record, Mr. Chairman. Mr. Chairman, a unanimous consent 
request.
    Chairman Leahy. Without objection.
    [The letter appears as a submission for the record.]
    Senator Specter. And my request to you, Madam Secretary, is 
to take a look at it. There would need to be a promulgation of 
written guidelines, but it seems to me on the merits and as a 
matter of equity, where there is a substitution of investment--
and that was stated in advance that there ought to be no 
problem. But you have three people whose appeals have been 
denied all the way up the chain, and they are now being 
reviewed by USCIS that we need to, as a matter of fairness, 
deal with them. But as an example of somebody who is going to 
be deported under these kinds of circumstances, certainly it 
will be a damper on this important program, especially at a 
time when we need all the job stimulus we can get.
    Secretary Napolitano. Senator, I would be happy to take a 
look at that request and see what we can do with that. I am 
sure Director Mayorkas will take a look at it. We are working 
on the guidelines on EB-5 and working also with the Department 
of Commerce to see what would make sense in the environment, 
because as you say, these investments lead to American jobs.
    Senator Specter. I very much appreciate that.
    One final question in the small amount of time I have 
remaining, and that is, is there any process possible to 
simplify checks at airports? Listen, we have to do whatever it 
takes to be safe in the airports, but you wonder sometimes 
about all of the rigmarole and the ages from the very young to 
the very old, and a question arises in my mind as to whether we 
are not overreacting. We had the White House Mall on Monday 
night. I did not see you there. Were you there?
    Secretary Napolitano. I was there.
    Senator Specter. OK. Well, it was----
    Secretary Napolitano. I was all dressed up.
    [Laughter.]
    Senator Specter.--a big crowd. My credential was checked 
three times as I walked through long lines. Was yours checked 
three times?
    Secretary Napolitano. No. I walked right in.
    [Laughter.]
    Senator Specter. Well, I will not ask you why you have 
preferred status because I know you are entitled to it. But it 
raises the question in my mind, and I am glad to be checked as 
often as they want to check us going into the White House. But 
it is a reaction to the gate crashers, obviously, of a couple 
of weeks ago. And I wonder, do you have results as to what all 
of these elaborate tests at airports showed? Do they really 
find things? Remember the old slogan--well, you are too young--
in World War II, ``Is this trip really necessary? Is all of it 
really necessary? '' Because if it is, fine.
    Secretary Napolitano. Senator, a couple of things. One is I 
consistently ask in the Department what is the value-added of 
any procedure that we are imposing and what is the threat that 
we are attempting to deal with.
    A second thing I ask is: Is there a better way? And this is 
where, for example, there is a project underway that, if 
successfully completed, may allow us to get rid of the liquid 
limitation, which is a real--it is a problem for travelers who 
do not want to have to necessarily check a bag.
    So we are consistently asking those types of questions, and 
they are the kinds of questions that we ought to be asking 
because, you know, travel and the ease of travel and all of 
that is something we want to foster.
    Senator Specter. Thank you very much, Madam Secretary.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    We have mentioned and touched on this earlier in my 
statement that by December 31st, a very short time from now, 
States have to materially be compliant with the REAL ID bill 
under the act that was zipped through, whether citizens are not 
going to be able to use driver's licenses as identification to 
board commercial aircraft at airports all across the country. 
Thirty-six States are now compliant. I had mentioned to you I 
had this horror scene of thousands of Americans who have flown 
to visit friends or family or relatives for the holidays with 
no problem, and then get to board a plane on January 2nd or 3rd 
or 4th and are told they cannot get on the plane, having 
exactly the same IDs that they had to get on the first link of 
the plane.
    Will your agency take any administrative steps so that we 
do not have this kind of chaos and confusion after midnight on 
December 31st?
    Secretary Napolitano. Mr. Chairman, this is a very 
frustrating situation for----
    Chairman Leahy. I mean, I would love to get the bill passed 
since we----
    Secretary Napolitano. Yes, there is a solution out there 
that is a legislative one.
    Chairman Leahy. It has been held up by one of these 
aggravating holds, but go ahead.
    Secretary Napolitano. Mr. Chairman, there is a solution, a 
legislative solution, and ultimately it will have to be a 
legislative solution. In the meantime, I have a set of not very 
attractive options, and they are not very attractive for the 
fundamental reason that simply granting an extension does not 
move us forward on the security side and fulfilling what the 9/
11 Commission recommended. But I am looking at what our options 
are now should the Congress not act.
    Chairman Leahy. Please keep in touch with me on that.
    Secretary Napolitano. Absolutely.
    Chairman Leahy. When you testified in May, you said you 
were conducting an internal review of the effectiveness of 
internal border checkpoint programs, including one that is on 
Interstate 91 in Vermont. That one has been a source of ongoing 
concerns. It is some considerable distance from the border. If 
somebody is a really serious smuggler, there are half a dozen 
parallel roads, two-lane roads that go along there, and they 
just get off the interstate, take a parallel and come back. If 
you have got a GPS, it is pretty easy to do.
    I have always been concerned about these kinds of 
checkpoints from years ago when I was asked if I could prove 
that I was a U.S. citizen. I had the license plate 1 on the 
car. My ID said I am a U.S. Senator, but it did not seem to 
satisfy the person that I was a U.S. citizen. I suspect that 
they had a deficient civics class when they were growing up. I 
have not had that happen since, and it has been years since 
that. But I do get horror stories of people who are just taking 
products to market, taking kids to school, are late for a 
doctor's appointment, and suddenly they have to prove they are 
citizens, people born and raised in Vermont and so on. What 
about this?
    Secretary Napolitano. Well, we have looked at the issue of 
temporary interior checkpoints, and I particularly look at the 
ones in Vermont because I know of your interest and will 
provide you with greater detail on actual numbers.
    But my view, Senator, is that they are and should be part 
of a border strategy so that we do have some means off the 
geographical border to see what is coming across. They do 
provide useful information.
    Now, we do make apprehensions----
    Chairman Leahy. No, I understand that, but they are so far 
removed from the border that the vast number of people going 
down there--if you really wanted to get involved in smuggling, 
you are just not going to take the interstate. Your predecessor 
proudly gave me a list of the number of marijuana arrests and 
people whose visas had been over that they had over a period of 
several months of stopping people there. And I pointed out that 
if you really want to find people with visas gone or marijuana 
or something, every day we have hundreds of thousands of people 
that drive in from Maryland or Virginia into the District of 
Columbia. Just put a road block on every single one of the 
bridges and the roads coming in here, and I can guarantee you 
you will get hundreds of people.
    Now, there may be a bit of an outcry from those who are 
going to work because you would have a traffic jam that would 
take a week to unravel. And I think you and I would quickly 
agree that for the number of arrests you would get, it is not a 
very effective thing to do.
    We are just a little State, but there are some of us who 
love it and were born there and are concerned about it and 
wonder if this is overkill.
    Secretary Napolitano. Mr. Chairman, I think it is not, and 
we have the same question in Arizona, which is the State I am 
familiar with, and New Mexico, which is the State I grew up in. 
And it is part of--we need to look at the border as an entire 
region and have some facilities that are non-permanent in 
nature, that are off of the border, that move around, that 
surprise people, that they cannot depend upon as part of our 
overall strategic look.
    Now, how we conduct those checkpoints and whether they 
cause undue delay, that is an issue that I think we can take 
another look at.
    Chairman Leahy. Well, these border things, it also reflects 
who we are. I mean, in Canada we could not have a better 
friend, and I look at this and I hear the complaints about--a 
disappointing number of complaints from Vermonters about their 
treatment in reentering the United States from Canada, but also 
from Canadians in entering, something I never heard before, in 
recent years just a lot of them, and some of them seem pretty 
legitimate. We are a welcoming country, and if somebody is 
treated like you are criminal unless you can prove otherwise by 
the people at our border, whether it is when you get off an 
international flight or driving across the border, it does not 
help. And to the credit of the Customs and Border Protection 
officials in Vermont, they had a recent meeting in Newport, 
Vermont, a border city, actually the one my wife was born in, 
and they made it very clear they want to hear about these 
negative experiences. I think they were surprised at the number 
they had. And I know these are hard-working men and women, and 
I know it is not an easy job, and I know they are the first 
people who are going to ask if somebody got through that 
shouldn't and say, ``How did that happen? '' But it is the 
image of America. Sometimes that is the first thing people see 
of America is at our border. We should not assume that 
everybody is guilty when they come through.
    Secretary Napolitano. Mr. Chairman, we will continue to 
work to improve that.
    Chairman Leahy. OK. I have questions about what Senator Kyl 
and I gave the Department the authority it needed to provide 
waivers and exemptions, certain material support cases. That 
may be one for the record, but I really would like an answer on 
it.
    [The information referred to can be found in the Questions 
and answers.]
    Chairman Leahy. Also, I know that Judge Webster has been 
asked to oversee the Fort Hood investigation, and to the extent 
your Department is involved in that eventually, I have told the 
White House I expect a report to come here, certainly to 
Senator Sessions and myself and ultimately to the Committee.
    Jeff, did you have anything further?
    Madam Secretary, Senator Kyl asked you about the Border 
Patrol agent numbers, and he indicated there was a 100-person 
increase in the budget, but you are moving a couple thousand to 
the northern border. How does that not result in a reduction of 
agents at the southern border? Can you give us an analysis of 
the numbers?
    Secretary Napolitano. I can, and I think more appropriately 
I think I should give you and your staff--we will give you kind 
of the staffing plan. But as I suggested to Senator Kyl, we are 
not moving agents from the southern border to staff the 
northern border. It is not going to happen. It is not part of 
our plan.
    Senator Sessions. Will the numbers be up or down a year 
from now at the border?
    Secretary Napolitano. They will be up.
    Senator Sessions. OK. That is good to hear, and if you can 
explain that, I would appreciate it.
    You know, Operation Streamline, since people are not 
detained for that long a period of time, it does not require, 
it seems to me, the quality of the housing that you would do if 
you were maintaining someone in a prison institution for longer 
periods of time. But what we have learned with crystal clarity 
is that releasing people who have entered the country illegally 
on any kind of bail results in very few showing back up when 
their deportation hearing comes. So it is just a devastation of 
any enforcement idea if you do not hold them pending their 
hearing.
    Have there been any changes in the number of people that 
you are releasing on bail? Because we finally got the previous 
administration to end the catch-and-release for the most part. 
I think there are probably some areas that needed further 
improvement, but it sounds to me like that, as you told Senator 
Franken, I think, on asylum cases you are looking to release 
them as soon as possible. Well, often that means they do not 
return.
    Secretary Napolitano. No, Senator, and I think those things 
should not be confused. I think what he was asking about was 
the adjudication of credible fear matters, and they have been 
bogged down in the system, and we are looking to improve that 
process.
    Now, we also have told the Congress--and Congress asked us 
to provide an alternatives to detention plan. Obviously, that 
has to be contingent upon a credible belief by us that we will 
have that individual back in court and ready for deportation. 
As a matter of practice, there are ways to help ascertain that 
and to supervise that, and we do do that.
    On Streamline, as I suggested to Senator Kyl, I agree that 
Streamline is very useful. We also believe that we have enough 
detention space identified for the individuals apprehended in 
the Streamline sectors, which include the larger sectors of the 
border. And we are working----
    Senator Sessions. Well, I hope you will look to expand that 
streamline process. It does seem to be effective, and it 
strikes me if you ask the average American when you apprehend 
somebody who has entered the country illegally, shouldn't they 
at least be required to have some sort of conviction of a 
misdemeanor of some kind before they are sent back, I think 
they would all agree that that makes sense.
    With regard to E-Verify, I understand that the Arizona law, 
which you signed into effect, is under appeal now in the 
Supreme Court, that the Ninth Circuit in a strong opinion 
affirmed the legality of that law, which says that the State of 
Arizona basically declared that businesses should check with 
the E-Verify system to verify whether or not the person is 
lawfully in the country before they hire them. The Supreme 
Court indicated they would like to ask the U.S. Government to 
file a brief in the case. Has a decision been made? And why 
wouldn't we want to file a brief supporting that law that seems 
to be working well?
    Secretary Napolitano. Well, Senator, I think the process is 
underway in the Federal Government as to how to respond to the 
U.S. Supreme Court's request. But you are correct, I did sign 
that law, and I signed it out of my belief that you have to 
deal effectively with the demand side for illegal labor as 
well--which is actions involving employers, E-Verify, those 
sorts of things, even as you work to strengthen the border 
itself.
    Senator Sessions. I think that is correct, and to suggest 
that once you have gotten into the country illegally that you 
are now free to work and stay in the country indefinitely is 
not the message we need to send. I have really become a strong 
believer that an important part of your job and the President's 
job and the Congress' job is to send a message throughout the 
world where large numbers of people, through polling data, say 
they would come to the United States if they could. To send a 
message that you can come, we have large numbers of people that 
come every year, but you must do so lawfully, that is a message 
we need to send and it is important.
    I have been somewhat concerned in recent days as I have 
learned about the Cory Voorhis matter in which this agent 
complained publicly during a political campaign in Colorado 
that the district attorney who was running for higher office at 
that time had plea bargained a number of cases to agricultural 
trespass, where people illegally in the country committed a 
drug crime or some other more serious offense, and they were 
allowed to plead to a misdemeanor agricultural trespass because 
apparently that did not result in deportation.
    After the election was over, he was attacked apparently, 
criticized, prosecuted, acquitted, and it now turns out from 
your internal investigation that supervisors who were involved 
in that case have failed a polygraph test and apparently have 
been determined to have conducted themselves wrongly with 
regard to this individual.
    To be brief, it is our understanding that the Office of 
Professional Responsibility has documents showing that the 
supervisor who criticized and apparently moved against Mr. 
Voorhis, who has also been terminated, and who is now 
contesting his termination, and that ICE presented the 
supervisor for criminal prosecution to the U.S. Attorney for 
felony offenses, including perjury and providing false 
statements, and that OPR sustained administrative charges 
against the supervisor, and that the final report was complete 
on April 3rd, but apparently ICE has yet to take any action 
against the supervisor, but they are continuing to seek to 
remove Mr. Voorhis.
    Do you know anything about that? And I think we need to 
make sure that this is done right?
    Secretary Napolitano. Senator, I am not personally familiar 
with that matter, but I will become personally familiar with 
it.
    Senator Sessions. Thank you. I think it needs to be looked 
at. I do not believe there is anything wrong with a Federal 
agent or State police officer criticizing a prosecutor. I used 
to be one, a prosecutor, and it did not make people every time 
you enter into a plea bargain, but I do not think they should 
be disciplined solely for that. If some violations occurred, I 
understand it. But, likewise, I do not believe you should allow 
a climate to develop in the Department that indicates that 
people who disagree with the policies of the Department will be 
punished if they express themselves. Do you understand the 
value of that?
    Secretary Napolitano. Absolutely. And as somebody who has 
run a large prosecution office, I can appreciate the value of 
your comments.
    Senator Sessions. Thank you.
    Chairman Leahy. Senator Klobuchar will be the last 
questioner, and then we will finish the hearing.
    Senator Klobuchar. Very, very good. I rushed back from the 
floor and made it in time. I want to thank you, Secretary 
Napolitano, for being here. As you know, we just talked last 
week or so in the Commerce Committee, and I will say what I 
said then. I want to thank you for your great help in 
addressing the flooding in the Red River Valley for both 
Minnesota and North Dakota, and I was really impressed by the 
work of the people in your Department.
    Secondly, one other thing that I did not mention in 
Commerce the last oversight hearing in May occurred about a 
month before the Western Hemisphere Travel Initiative took 
effect, and we had serious backlogs of travelers in Minnesota 
who were suddenly going to need passports or other documents to 
get to Canada, which had not been required before, and while 
this is going on, we have had a decline in the tourism industry 
all over the country. And I have learned from talking to people 
in Minnesota that the implementation of the Western Hemisphere 
Travel Initiative has been much smoother in our State. This is 
a good thing, Madam Secretary, and people anticipated and they 
were pleased with how things went in a timely fashion and the 
pragmatism of the people in the Department. So I wanted to 
thank you for that as well.
    At the Commerce hearing, we talked about my concern about 
the no-fly list and some of the secure flight issues, so I am 
not going to go into that again. I did want to touch on 
something I know was touched on briefly here about the 
accidental disclosure of Transportation Security Administration 
airport screening procedures when that confidential document 
was placed online. I know that you said to an earlier question 
that it did not represent a significant security risk but did 
violate the standards of your Department. And I was just 
wondering what steps you are taking to make sure that these 
kinds of disclosures do not happen again. Obviously, they are 
of concern.
    Secretary Napolitano. Yes, Senator, and several things. One 
is we have asked the Inspector General to look at the entire 
issue about what occurred.
    Second, several employees have already been placed on 
administrative leave, and the contractor involved who actually 
made the inappropriate posting has been dealt with 
appropriately.
    Third, we are going back through our own procedures at the 
TSA for what gets posted and how, and also making sure that the 
employees throughout the Department have their training and 
memories refreshed as to the necessity for when redaction needs 
to occur, how that properly is to be done.
    Senator Klobuchar. Very good. Well, thank you, and we will 
look forward to hearing the results of all of this as we move 
forward. I know we have talked before about the Border 
Enforcement Security Task Force in the southwest corner of our 
country, and I wanted to get an update on that. I do not think 
you have talked to anyone else about that here. Have you seen 
any change in the drug cartels' tactics in Mexico since the 
coordinated efforts began? And a second question would be how 
you would assess Mexico's state and local law enforcement 
officials' work in rooting out corruption, going out after the 
cartels, and being more vigilant?
    Secretary Napolitano. We have increased the number of 
Border Enforcement Security Teams, BEST teams, across the 
border. They have been very effective, collaborative efforts to 
make sure that whatever violence is occurring on the Mexican 
side of the border does not spill over onto the U.S. side, and 
they are helpful for a number of other reasons as well, going 
after fugitive aliens, for example, criminal alien gangs as 
another example. So that continues to be a very effective tool 
for us.
    Our law enforcement relations with Mexico are the best I 
have seen in the almost 17 years that I have been working 
border-related crime issues. For example, for the first time we 
are seeing Mexico actually create basically its own vetted 
border patrol so that, you know, we have an agency to work with 
along the border. They basically removed 1,500 of their customs 
officials last year and replaced them with vetted officers. So 
our ability to work at the law enforcement level has greatly 
improved.
    Then, last, I think that progress is being made against the 
cartels. There have been several significant arrests and 
seizures. Some have been kept on the Mexican side. Others are 
being contemplated for extradition to the United States. And at 
the Federal level, the coordination between President Obama and 
President Calderon is very, very close.
    Senator Klobuchar. Very good. Thank you.
    One other thing that I do not think we have talked about 
before is the creation of the Import Safety Commercial 
Targeting and Analysis Center that you have helped spearhead. 
At the University of Minnesota, we have a National Center for 
Food Protection and Defense, which has been certified as a 
Homeland Security Center for Excellence, so we have long 
recognized the importance of securing the safety of the food 
chain. And I am just concerned about this, being from an 
agricultural State and starting to see some of the products 
that have been coming in from other countriesin the last few 
years. Obviously, we are addressing some of our own food 
concerns. I am one of the original sponsors on the bill to 
bring us more food safety. But I continue to be concerned about 
what is coming in from outside of our borders and the effect 
that could have on our homeland security. Could you talk about 
that?
    Secretary Napolitano. Senator, I can. As you know, we have 
opened up a center in that regard. We are also really working 
with all kinds of food supply chain issues and would be happy 
to provide you with a more in-depth briefing.
    Senator Feinstein in her questions to me related the fact 
that some agriculture is leaving the United States as a 
homeland security issue, and I think she has nailed it, and as 
have you by your questions.
    Senator Klobuchar. Right.
    Secretary Napolitano. So we have really got to look at 
that.
    Senator Klobuchar. I think that is why we called the farm 
bill the Food Security Act, just how important it is for us to 
be able to produce our own food.
    The last question I have is about the Recovery Act, which 
included $1 billion for TSA to procure and install explosive 
detection systems and checkpoint explosive detection equipment 
for checked baggage at airports and an additional $680 million 
to improve infrastructure and technology at our Nation's 
borders. Can you give an update on how much of the security 
funding has been spent and how you plan to utilize the funding 
over the next year?
    Secretary Napolitano. Yes, and I can give you a spread 
sheet in detail, but the contracts are out, the obligations 
have been made. A number of jobs have been related to those 
contracts. The inline baggage systems are being installed in 
airports across the country. And the northern ports, the 
construction contracts have been let, and that work is 
underway.
    Senator Klobuchar. Thank you very much. I appreciate it.
    Chairman Leahy. Thank you, and we will stand in recess, and 
I thank you, Secretary Napolitano.
    Secretary Napolitano. Thank you, Mr. Chairman.
    Chairman Leahy. We appreciate your being here, and there 
will be follow-up questions from several other members of the 
panel. Thank you.
    [Whereupon, at 12:23 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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