[Senate Hearing 111-504]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 111-504




                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE


                             FIRST SESSION


                              MAY 6, 2009


                          Serial No. J-111-20


         Printed for the use of the Committee on the Judiciary

56-80                    WASHINGTON : 2010
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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
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          LINDSEY O. GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
ARLEN SPECTER, Pennsylvania
            Bruce A. Cohen, Chief Counsel and Staff Director
                  Matt Miner, Republican Chief Counsel

                            C O N T E N T S




Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, 
  prepared statement.............................................   139
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................   142
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     3


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

                         QUESTIONS AND ANSWERS

Responses of Janet Napolitano to questions submitted by Senator 
  Hatch..........................................................    33
Responses of Janet Napolitano to questions submitted by Senators 
  Feingold, Feinstein, Grassley, Hatch, Kyl, Sessions and Wyden..    34

                       SUBMISSIONS FOR THE RECORD

Napolitano, Janet, Secretary, U.S. Department of Homeland 
  Security, Washington, D.C., statement..........................   144



                         WEDNESDAY, MAY 6, 2009

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 10:07 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Kohl, Feinstein, Feingold, Durbin, 
Cardin, Whitehouse, Klobuchar, Kaufman, Sessions, Hatch, 
Grassley, and Kyl.

                      THE STATE OF VERMONT

    Chairman Leahy. Good morning. I want to thank Secretary 
Napolitano for appearing here today with all the other things 
she has going on. I really appreciate this. Many of us knew her 
even before she had this position--of course, Senator Kyl. They 
are both from the same State. And Secretary Napolitano is a 
constituent of Senator Kyl's. I knew her first when she was 
Attorney General and enjoyed the time we have had.
    I want to commend your competent leadership during the 
current threat of a flu pandemic. The response has been very 
good, and especially not only here in the United States, but in 
the coordination with the World Health Organization, and I 
think it gives people a lot of sense of confidence in the 
efforts throughout the administration. And I would note, if I 
might, sort of a personal thing, the State of Vermont is home 
to several DHS operations. We have the USCIS Service Center. We 
have the Law Enforcement Support Center, a Fusion Center, among 
others. The Law Enforcement Support Center, I remember being 
there late one evening when a call came in from a sheriff in 
Arizona who was checking on somebody they had picked up, and 
they got an answer right away. But it is a good Federal-State 
partnership, and if things ever calm down around here, Madam 
Secretary, I would be delighted to have you come to Vermont and 
see the very, very good men and women who work there, the very 
loyal men and women who manage these around-the-clock 
    I commend your early attention to our interests in working 
closely with Mexico in its struggle against drug trafficking 
and against the violent cartels and gangs that pose serious 
threats to the people and communities, and I actually think 
they pose a serious threat to the Government of Mexico itself. 
Mexico is our neighbor, and finding appropriate ways to help it 
prevail against these lawless influences in their own country 
is going to help. The Merida Initiative is a first step, but we 
need a comprehensive strategy that addresses the underlying 
causes that have enabled this drug-related culture to grow up 
in Mexico.
    Last week, you issued new guidelines for the Immigration 
and Customs Enforcement agency's approach to conducting 
immigration worksite enforcement in order to combat the 
systematic unlawful exploitation of foreign workers that serve 
to harm them and to undercut American workers. The penalty for 
such lawbreaking and exploitation has to be meaningful. It has 
to be more than just another cost of doing business for some of 
these employers.
    I am glad to see you take the issue of immigration 
detention seriously. You are reviewing past practices and 
procedures. We have a historically high rate of detention for 
asylum seekers and other non-criminal aliens, so I would hope 
that you are going to give careful consideration to 
alternatives, especially supervised release of those who pose 
no threat. In my view, the United States should not be in the 
business of incarcerating children who have violated no laws, 
and alternatives, if we can find them, to unnecessary 
incarcerations will not only be more humane but is actually 
going to save taxpayer dollars. And I think we all agree that 
we need to ensure that foreigners are not dying while they are 
in custody.
    I saw the ceremony last week at which you and the President 
welcomed members of our armed services to American citizenship. 
I was very pleased to see that. Immigrants who risk all to 
defend this Nation deserve expedited citizenship consideration. 
And that was not the first time you have administered the oath 
to our soldiers. I saw you do it to a wounded soldier at Walter 
Reed last month. And I think that honors not only his service 
but all such soldiers.
    I am glad you are going to take a fresh look at the REAL ID 
Act. I think many Americans believe that in its current form it 
is an onerous Federal mandate and amounts to a national ID card 
in the guise of a driver's license. I joined Senator Akaka and 
others in supporting legislation last Congress to replace the 
rigid requirements of the current law with a negotiated 
rulemaking process that actually treats the States as being 
partners in this. And I agree with you that ``there has to be a 
better way than REAL ID.''
    I expect that the Department will support the EB-5 Regional 
Center program. This has resulted in billions of dollars in 
foreign investment but also an awful lot of jobs in this 
country. And we should have made it permanent before now, and I 
hope we will.
    Senator Kyl and I provided authority during the previous 
administration on the question of unnecessary barriers to 
asylum seekers, and Senator Kyl and I wanted to allow the 
Secretaries of State and Homeland Security to issue waivers in 
this regard. Little was subsequently done, and I would hope you 
might look at that.
    I want to say that no one who is victimized by violence and 
repression or who stood with the United States in opposition to 
an oppressive foreign government will just be blithely labeled 
a ``terrorist'' and denied our protection.
    President Obama spoke again last week about the need for 
comprehensive immigration reform. We need to pursue that, so I 
welcome you.
    Before I do that, I will turn to my friend from Alabama, 
who is the new Ranking Member on this Committee, and I 
appreciate him being here. He and I have worked together on 
many, many things over the years, and I will now turn it over 
to him. Jeff, I am glad to have you here.

                           OF ALABAMA

    Senator Sessions. Thank you. Thank you, Mr. Chairman. It is 
a remarkable series of events that I find myself in this 
position. My mother, who we lost a few weeks ago, always felt 
the Judiciary Committee should be a higher-quality group, Mr. 
Chairman, and I think maybe that is good advice for all of us. 
People expect out of this Committee high standards of 
professionalism and integrity and fairness and justice, and you 
can be sure that we will work hard to discuss the issues that 
are important to America, to analyze the legal questions this 
Nation must face, treat nominees and witnesses fairly, to 
analyze legal questions fairly. And a lot of times we may agree 
or disagree on certain matters, but a lot of things we can 
agree on. And so I look forward to working together in a way 
that makes this great legal system in America better.
    I would just say, as I shared with the President last 
night, having gotten back from, I guess, my sixth or seventh 
time to the Middle East, the rule of law is the most lacking 
thing in those countries. If you could have security and lawful 
behavior and the government had the capacity to secure people 
in their lives and in their business interests and they would 
prosper, their freedom would be preserved. We have been 
provided the greatest legal system the world has ever had, and 
all of us have a responsibility to pass it on and to ensure 
that every single American is provided what is on that Supreme 
Court building, ``Equal Justice Under Law.''
    Madam Secretary, you have got a big job. You and I are 
former Attorney Generals and U.S. Attorneys, and I know when 
they cobbled everything together in Homeland Security, a lot of 
those agencies have deep histories and cultures that were not 
quite the same. So the challenge that you have to bring it 
together--and I know it is not there yet. I am sure it is not. 
And so I know you are working on that.
    I wanted to raise some questions with you today, and I will 
do that and share with you some concerns I have and give you an 
opportunity to discuss them. You are starting out now. You are 
setting some policies and trends and positions that will impact 
the lowest agent in your Department and really impact American 
citizens and the whole world. What you say has a lot of 
difference. So I was concerned with several actions taken and 
statements you have made to date, and I would like to ask you 
about them.
    I also would note that in your good letter that I received 
last night, you said some things that, if carried out, I think 
answer some of these questions, and we can talk about it as we 
go forward.
    With regard to the question of worksite enforcement, I 
understand that there has been only one ICE worksite 
enforcement action during this administration, and rather than 
supporting this action, which yielded the arrest of 28 illegal 
aliens, you announced that you were going to ``get to the 
bottom of this'' by investigating the agents and the processes 
that led to that, agents and processes and actions that I think 
were simply doing their duty. And that has the potential to 
send a message to every agent in America what your policies are 
with regard to worksite enforcement, and I hope that is not 
    Leadership from the top is a key issue, and the signals you 
send can have a chilling effect and can affect the priorities 
of every single officer out there and every single department 
under your control.
    While I support your recent decision to devote resources to 
the criminal prosecution of employers who knowingly hire 
illegal aliens--and I think that is probably the primary and 
best path to create a situation in which we remove, as Mr. 
Bonner, the head of the Border Patrol union, has said, the jobs 
magnet, your decision to release some of those that were 
arrested in this raid I mentioned in Washington, I think could 
represent a significant shift from the policies of the previous 
administration. Secretary Chertoff in his policies I do not 
think followed that trend.
    So I am concerned about that, and I also note that while 
our unemployment rate in America is rising now to 8.5 percent, 
in the days after this Yamato raid in Washington, 150 people 
applied for those jobs. So there are people willing to work, 
and sometimes I think unscrupulous employers are seeking the 
cheaper way out, violating the law, and not providing 
opportunities for American citizens who are unemployed to get 
good work.
    I was also disappointed that in April you decided to delay 
implementation of Executive Order 12989, which requires all 
Federal contractors and subcontractors to use E-Verify, and you 
put it off until June 30th. I think that is the third delay. 
President Bush delayed it until the beginning of January, and I 
think this is a second delay from this administration.
    Over 100,000 employers use this. I think you have supported 
this concept in the past. But these extensions may be sending a 
message that is confusing, and voluntarily, people are signing 
up, as much as 1,000 a week, and we need to keep that going, 
and I frankly was baffled that Congress did not require it to 
be used with regard to the stimulus package and jobs created 
    So I hope that you will clarify some of the positions you 
have taken with regard to people who enter at the border. Your 
letter is pretty clear on that. it is a misdemeanor, and I 
think perhaps maybe it was just a mis-speaking when you 
suggested it was only a civil offense to enter the country. 
But, again, that is a message that can have an effect of 
undermining the morale of our officers and the possibility of 
creating a lawful border.
    Thank you for your testimony. I look forward to engaging in 
dialog. I want you to succeed. You are a highly capable person. 
You have got good background for this position, and we will be 
trying to cooperate and assist you. But we do need to use those 
great resources effectively, and I will be counting on you to 
do that.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Madam Secretary, please go ahead. And what we are going to 
do, there is going to be a series of votes, and I would urge 
Senators who are not next in line to ask questions, as soon as 
the vote starts, go to the floor and come right back, and we 
will try to keep this going. I know your time is limited, so 
please go ahead.


    Secretary Napolitano. Well, thank you, Mr. Chairman, and 
congratulations to you, Senator Sessions, on becoming the 
Ranking Member of this Committee. I will give a preliminary 
statement now. I do look forward, Senator Sessions, to 
clarifying some of the comments you had because I think it will 
be important that we work together to enforce the rule of law 
at the border and in the interior of the country, because our 
immigration strategy cannot just be border specific. It has to 
include the entire Nation, so I look forward to coming back to 
those specific questions on Bellingham and E-Verify.
    But as you know and as you have noted, the Department of 
Homeland Security has a very broad mission. I categorize them 
in five major categories. The first is to guard against 
terrorism. That is why the Department was stood up. The second 
is to secure our borders. The third is to enforce our 
immigration laws in a smart and effective manner. The fourth is 
to prepare for and recover from disasters. This can be managing 
events as we are currently underway with the H1N1 virus to 
preparing for the upcoming hurricane season. And the fifth is 
unifying the Department, creating one Department of Homeland 
Security out of what originally was 22 separate agencies.
    We are moving forward in many of these areas. Specifically 
with respect to this Committee, we are moving forward with 
respect to our borders, immigration enforcement, and secure 
identification. And I detail those efforts in my more elaborate 
written statement, which we will put in the record for you.
    If I might, just to highlight a few things. We are working 
to protect our borders against rising drug cartel violence and 
other cross-border threats. We are adding more boots on the 
ground, technology, and equipment through a new southwest 
border strategy. We are expanding our cooperation with State, 
local, and tribal partners through Border Enforcement Teams, 
called ``BEST Teams, and other initiatives, and we are 
strengthening and enhancing our cooperation with Mexico through 
efforts like the Merida Initiative.
    In addition, we are refocusing our efforts on smart and 
effective immigration enforcement. We are targeting the 
employers that hire illegal aliens and create the demand for 
illegal immigration. We are making improvements to the E-Verify 
system. Let me pause a moment there. I believe E-Verify is very 
important and must be an integral part of immigration 
enforcement moving forward. I signed the Nation's toughest 
employer sanctions laws when I was Governor of Arizona, and it 
is no surprise that almost 25 percent of the employers 
currently registered on E-Verify are actually Arizona 
employers. So we know that with incentives and otherwise, E-
Verify can really make a difference. We are committed to making 
it better.
    We are expanding our efforts to identify, arrest, and 
deport criminal and fugitive aliens. We are working on 
improving the 287(g) program so we continue to work effectively 
with proper guidance and oversight with our State and local 
partners. And we are doing the same with respect to detention 
of ICE detainees, making sure that if they are detained by 
force of the rule of law they are receiving appropriate 
treatment and health care.
    Finally, we are working to strengthen and standardize 
travel and identity documents and improve our ability to 
confirm identity. We are on track to implement the Western 
Hemisphere Travel Initiative requirements on June 1st of this 
year at our land and sea ports of entry. We are doing 
exhaustive outreach to our border regions. We have identified a 
range of WHTI-compliant credentials available to citizens from 
passports to passport cards to Trusted Traveler cards.
    We have added ID readers at 33 of our ports and will soon 
have them at the top 39 ports that account for, I think, 
roughly 80 to 85 percent of the traffic that crosses the 
border, and we are improving the capabilities of US-VISIT, 
moving from two-fingerprint identification to ten-fingerprint 
    We are working as well with the National Governors 
Association to identify ways to strengthen the security of the 
driver's license. We need to find a workable solution that 
brings the States into compliance, fulfills our security goals, 
but does not operate as an unfunded mandate to cash-strapped 
States. This is a fairly full plate, and I have just mentioned 
several of the major items that are underway at the Department.
    Let me close with this: One of the best things I have found 
as the new Secretary of Homeland Security is in the men and 
women who work for this Department. There are 218,000. They 
work hard every single day to meet the challenges that we have 
and to protect the American people, and I am proud to serve as 
their Secretary. I look forward to working with this Committee 
in these and other areas, especially as we take up the issue of 
comprehensive immigration reform.
    And, with that, Mr. Chair, I look forward to the 
Committee's questions.
    [The prepared statement of Secretary Napolitano appears as 
a submission for the record.]
    Chairman Leahy. Thank you. Madam Secretary, we will put 
your full statement in the record, as well as my full statement 
in the record. And as I noted in the beginning of that, I 
appreciate and I think all Americans appreciate your leadership 
in the face of the swine flu threat.
    I was struck by your written testimony--and you referred a 
little bit to it here, too--regarding REAL ID reform and 
reaching out to the Governors of our States to develop a better 
alternative. You were a Governor, and you understand the 
problems of a Governor in a border State, too. Legislation is 
currently being discussed in the Senate to reform the REAL ID 
law. I understand the Department has had some opportunity to 
review and comment on the proposed legislation.
    Would you agree, at least as a basic start, that we would 
accomplish a lot more if we had a law that the States would 
support and could implement more easily? In other words, if we 
had something that the States could really be on board with?
    Secretary Napolitano. Yes, Mr. Chair. I think that our 
experience under the existing law, which is known as REAL ID, 
has been bipartisan among the States and unanimous that they do 
not like it and cannot meet its requirements and feel that it 
was an unfunded mandate at a most unfortunate time.
    We have been working, since I became Secretary, with a 
bipartisan group of Governors as well as legislators to craft a 
solution that unites the goals of the REAL ID with a better way 
for States to be able to implement it, and I believe a bill, if 
it has not yet been introduced, soon will be introduced to 
allow us to do that.
    Chairman Leahy. Let us work together on that because we 
will pass legislation. We are all hearing from our--most of us 
are hearing from our Governors, and we want to pass something 
that makes the situation better, not worse. And so we will call 
on you on that.
    When you and I met earlier this year, we talked briefly 
about the EB-5 Regional Center program. That is something that 
is important in Vermont. It is important in Alabama. It is 
important in a number of other States. It allows foreign 
investors to obtain legal permanent residency, provided they 
have made a substantial investment in an American development 
project. Billions of dollars have come into the United States 
since that began, the 1990s, and thousands of jobs have been 
created for Americans. We reauthorized it over and over again, 
sometimes for a short period of time--6 months and so on.
    Would you support legislation to make the EB-5 Regional 
Center program permanent?
    Secretary Napolitano. Mr. Chair, I would support the 
principle of making it permanent. I would want to actually see 
the legislation, of course.
    Chairman Leahy. Of course. I understand.
    Secretary Napolitano. But obviously this is a way of 
attracting investment dollars, and it is tied directly to the 
creation of jobs right here in the homeland.
    Chairman Leahy. But would you agree that if everybody looks 
at it and says, well, you know, this thing could be turned off 
at the end of 6 months and all, we ought to have something that 
makes it a little bit more concrete than what it is today?
    Secretary Napolitano. It makes sense. If the goal is to 
attract investment dollars that lead to the creation of jobs, 
investment dollars requires stability. And so that approach 
would make sense.
    Chairman Leahy. Let me go to something that Senator Kyl and 
I worked long and hard on with the prior administration, and 
that is on the waiver authority we gave DHS and State 
Department for those seeking asylum or who are refugees, 
because we have the material support and terrorism bars in the 
immigration laws, which on their face seem like a good idea, 
but they are so broad that somebody, even somebody who has been 
forced into servitude in some of these terrorist groups are 
offered. If they escape, or seek asylum, they are suddenly 
barred; or people who have worked with us, have helped us gain 
intelligence and all, suddenly they are barred.
    Are you revisiting the interpretations of material support 
of terrorism and terrorist acts to find a better way to handle 
    Secretary Napolitano. Yes, Mr. Chairman, we are. It is 
being examined by several elements within the Department of 
Homeland Security to see how best we can accomplish the goals 
of that waiver authorization.
    Chairman Leahy. Would you keep in touch with both myself, 
Senator Kyl, and others up here who are involved in this? 
Because we have got to have a better way. I just do not want 
people whom we have sought to help continue to be barred from 
seeking asylum here, having helped us, and who face prospects 
of execution in their home states or their home countries. And 
we are, after all, the country that has always been a beacon to 
people who have been oppressed, people who have faced death in 
their own country. And we want to keep that going, so please 
work with us on that.
    Secretary Napolitano. Absolutely.
    Chairman Leahy. My time is up. I yield to the Ranking 
    Senator Sessions. Thank you.
    Madam Secretary, you wrote that you announced new guidance 
for our agents in the field--you wrote in your letter to me 
that I received last night--"directing them to target both 
illegal workers and employers that create incentives for aliens 
to illegally cross our borders, which I think is the law and 
sound policy, and I appreciate that.
    But, you know, this little flap over the raid that I 
mentioned earlier is a matter of some concern. One of the 
things that was disturbing to me, apparently, was that some 
spokesman made the comment that there was a personal commitment 
by the President to certain immigrant rights groups, and that 
this raid violated that. Are you aware of that? Could you 
explain what was referred to in that news article?
    Secretary Napolitano. No, I cannot, Senator. I do not know 
that article. But I can tell you that the President is very 
committed to the enforcement of our Nation's immigration laws, 
and he has charged me with that responsibility.
    Let me, if I might, follow up on the Bellingham--this is 
the Bellingham raid that you are referring to.
    Senator Sessions. Right.
    Secretary Napolitano. The reason that I said I would be 
looking into it was that there was an existing process within 
the Department of Homeland Security that pre-existed my tenure 
there that, before raids like that were undertaken, there was 
to be notice given up the chain to the head of the Department, 
and that communication had not occurred. So there was a 
breakdown in communications under existing Department policy, 
and obviously--and as you yourself noted, when you head a major 
office like this, a U.S. Attorney's Office, AG's Office, one of 
the important things is to have knowledge of what enforcement 
actions are being undertaken. Second----
    Senator Sessions. Well, Madam Secretary, that can have a 
chilling effect, and your comment, I think, was, ``We are going 
to get to the bottom of it.'' So you are saying that you did 
not intend to signal to your agents that they should not do 
workplace raids in the future?
    Secretary Napolitano. No. I intended to signal that they 
should follow the protocols that were in place.
    And, second, with respect to the agents, we are not 
investigating agents. The questions I asked were law 
enforcement questions. For example, what was the plan vis-a-vis 
the employer? Had they sought to get search warrants and had 
those been turned down? And if so, why? Did they have a 
prosecution agreement with the U.S. Attorney's Office in that 
district? Had they sought one? If not, why not? If they had, 
what was the status of that?
    And that leads to the third issue I think you had there, 
which was the issue of some of the workers who were arrested 
being released and allowed to work. That was a practice under 
my predecessor and has been a practice in worksite enforcement 
actions for many years, and the purpose and what you do there 
is sometimes you arrest the worker, and then you give them a 
delayed departure in order to get their evidence, their 
cooperating evidence against others that you may be seeking to 
prosecute, particularly those for whom you have to establish an 
intent requirements. It is only a delayed departure. When that 
cooperation period is over, they are then removed from the 
    Senator Sessions. Well, I would just suggest that I do not 
think there has been another raid of that kind since, and it 
may be the unintentional result of your comments and actions 
that the agents got the message. So we will see how those go in 
the future, but I do agree that employers who violate the law, 
who knowingly do this, if they know that you are serious about 
this, I think most of them will comply, and there will be a 
fairly small number that need to be prosecuted. And I hope that 
you will move forward on that, and I think it could have a big 
positive impact on the difficulties we have been facing with 
the immigration policies.
    Madam Secretary, the problem of the Uyghurs that are held 
at Guantanamo who are certified to have been trained at a 
terrorist camp, the U.N. has recently re-established Mr. Haq 
the head of their extremist organization as a terrorist 
organization, as has the U.N. and the United States, but it 
appears to me, contrary to law, the Attorney General is 
suggesting that those Uyghurs, since no one else wants to take 
them, would be released in our homeland. And under the statute, 
Title 8 U.S.C. 1182(a)(3)(B), it flatly prohibits people who 
trained in terrorist training camps from being admitted into 
the United States.
    Congressman Wolf I believe has written you a letter about 
that. He is a champion of humanitarian causes worldwide, but he 
believes that this also raises serious legal questions, and it 
sort of falls in your bailiwick. The Attorney General is not 
before us, but I know he is wrestling with what to do.
    So I would ask you: What are the plans with regard to these 
Uyghurs? And are you aware that, according to my reading, it is 
flatly prohibited for them to be released into the United 
    Secretary Napolitano. Senator, several things.
    First, going back to your earlier question, I know of at 
least one workplace action that happened after Bellingham, so 
we continue worksite enforcement, and we have a multi-State 
human smuggling major action going on today. So we continue all 
of our enforcement actions, and we will very vigorously.
    With respect to the Uyghurs, this is part and parcel of the 
President's decision to close Guantanamo, and in addition to 
the statutory law, there are court orders with respect to 
release of the Uyghurs that are in place. The Attorney General 
has been directed by the President to put together a Committee 
on which the Department of Homeland Security sits to deal case 
by case with each of the individuals, including the 17 Uyghurs.
    Chairman Leahy. Senator Kohl.
    Senator Kohl. Thank you, Mr. Chairman.
    Madam Secretary, over the past several days, Federal 
officials have advised schools to close if they had probable 
cases of the swine flu. But, yesterday, Federal officials 
changed their mind and advised schools to reopen.
    Is there a one-size-fits-all answer to every school? And 
what are you doing to assist local school officials in 
determining whether they should reopen?
    Secretary Napolitano. Senator, yes. The advice did change, 
and what we have done from the beginning of the H1N1 outbreak 
is say we are going to be guided by the advice of the doctors. 
What is it that we need to do to protect the safety of the 
American population from the spread of this new strain of flu? 
But we were very careful to say that that is going to change as 
they go through and the scientists find out more about the flu. 
And as we have gone through the past days, what they have 
learned is that some of the lethality factors that could be 
present in a new strain of flu did not appear to be present, 
and that even people who contracted this flu were not 
experiencing flu worse than the normal seasonal flu. Now, 
realize in a normal seasonal flu, 36,000 Americans will die. 
But, nonetheless, it was not more severe than that.
    And so after that consideration and, again, the 
accumulation of knowledge, the CDC changed its school advice. 
And so that revised guidance went up at the CDC yesterday.
    What we are doing is a whole host of things with respect to 
communication, but the number one thing we have done with 
respect to schools and school guidance is drive people to the 
CDC website and the Department of Education and worked with 
    We will continue to do that because even though this 
outbreak now we seem to have reached kind of ``active 
caution,'' if I might use that phrase, with respect to it, we 
are very much aware that we could have an even more severe 
outbreak in the fall when our normal flu season being. And what 
we learned in these past weeks is the schools are a central 
part of how you can contain and what you have to make decisions 
on when you have a pandemic. So I think we need to further 
refine our decisionmaking about closures in the event that we 
do have a more serious outbreak this fall.
    Senator Kohl. Madam Secretary, most people agree that our 
current immigration system is fundamentally broken and that the 
status quo is not acceptable going forward. President Obama has 
signaled his desire to fix the system. In your opinion, what 
are the basic principles that should guide the overhaul of the 
immigration system?
    Secretary Napolitano. Mr. Senator, I think there are 
several things. One is you have to have a strong and effective 
enforcement strategy that is sustained over time, and your 
enforcement strategy has to be a system that is not just at the 
border but includes the interior of the country as well.
    The second is that you need to look at reform of the entire 
visa system--in other words, how we award visas, what are the 
criteria, how long, or how many are granted, particularly in 
certain categories. That needs to be re-examined.
    And then, third, the Congress is going to need to address 
what do you do with the people already in the United States, 
many of whom have been here for a number of years, who are 
undocumented, who are here illegally.
    Senator Kohl. Do you have an opinion on that third point?
    Secretary Napolitano. I would prefer to do that in the 
context of when the President and the Congress take up an 
overall approach to this immigration issue. I am focused now, 
as I believe my charge is, to enforce the law that we have and 
to do it intelligently and effectively.
    Senator Kohl. Madam Secretary, last April, GAO released a 
report on whether the Government was prepared to evacuate 
vulnerable populations, such as nursing home residents, in the 
event of an emergency. At that time the Department of Homeland 
Security had not implemented GAO's recommendations to require 
their State and local grant recipients to plan, train, or 
conduct exercises on such evacuations.
    What steps is DHS taking to ensure that vulnerable 
populations are not abandoned during emergency evacuations?
    Secretary Napolitano. Thank you, Senator. A number. One of 
them is we have gone back and are in the process of going back 
through a number of the GAO reports that have been issued in 
prior years to say, well, what has the follow-up been and where 
are we.
    Second, we are beginning to do some exercises to identify 
where State and locals are in respect to evacuation of special 
needs populations. I cannot be sanguine here. I think that 
there are still issues to be worked out, and particularly in 
some places of the country where you are dealing with 
potentially enormous evacuations, logistics still have not been 
met. So we have some work to do here.
    Senator Kohl. Have you taken note of some of the 
extraordinarily good things that I believe have been happening 
in Florida with respect to preparing for those kinds of 
    Secretary Napolitano. There are a number of States that 
have done a number of good things. I think one of the things we 
are concerned about right now is States that were making great 
progress and cities that were making great progress in their 
public health plans, their evacuation plans, the resources they 
would have in case a disaster were to strike, a lot of that has 
been put on hold, and a lot of the personnel that would be 
involved in carrying out those plans have been furloughed 
because of their budget situation. So the strain on the Nation 
from the economy is going to have and is having some impact on 
the preparations that were underway.
    Senator Kohl. Thank you.
    Mr. Chairman, thank you.
    Chairman Leahy. Thank you.
    Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman.
    Welcome, Madam Secretary. I want to just begin by thanking 
you for your attention to the border. As a border State, it 
obviously is of substantial importance, and the cartels have 
been creating havoc and violence for much too long now, and it 
is infiltrating, as we discussed, through the border into our 
    I wanted to ask you a couple of questions. The first is--
and I will ask two at one time. Has there been any appreciable 
reduction in violence at the border since you began? And, 
second, would you describe the Department's effort to trace the 
origins of guns seized at the border? How is ATF coordinating 
with your Department to investigate gun trafficking on both 
sides of the border?
    Secretary Napolitano. Thank you, Senator. Yes, we have seen 
a reduction in violence. I do not think it would be appropriate 
for me to claim credit for that. I think the number one factor 
in that was the decision of the President of Mexico to send the 
military into Juarez, which has had a very strong impact on the 
number of homicides that were happening in the State of 
    Senator Feinstein. So it is working.
    Secretary Napolitano. That is working. The question there 
will be how long can it be sustained, and that is why we have 
to continue to work with Mexico on getting at the root cause of 
that violence on the part of these cartels, which, as you 
noted, have plagued us for far too long. So we want to continue 
those efforts working with Mexico.
    In terms of the border communities on our side of the 
border, I have been to many of them since I have been 
Secretary. We are having regular conference calls with the 
sheriffs and police chiefs along the border. What they report 
to me is they are not seeing any upswing in violence or 
spillover violence because of the cartel war in Mexico. It is 
obviously something that we want to stay on top of and be 
proactive about because that is the last thing any of us wants 
to occur. We are going to keep those efforts up.
    Senator Feinstein. And the guns?
    Secretary Napolitano. With respect to the guns, the key 
issue there is for Mexican law enforcement, when they find a 
gun that has been used in the commission of a crime, to 
immediately give us the information so that it can be traced, 
and so the source of the guns can be determined. That is in 
process now. We call it the E-Tracing Initiative. We are 
working with ATF on that. In addition, we have added a lot of 
resources to what we call our ``southbound strategy,'' more 
inspectors, dogs, metal detectors, and the like on the 
southbound lanes going into Mexico where previously there had 
been none. In that process, we have already seized a number of 
weapons that were illegally going into Mexico.
    Senator Feinstein. Good. Let me ask you a question, if I 
might, about the Visa Waiver Program. I have worked for a 
number of years to try to mitigate the risks that I believe 
this program produces for our Nation. It has been expanded now 
to 35 countries, but DHS still does not keep track of who is 
entering and exiting the United States at all points of entry. 
And if those who enter through the Visa Waiver Program, in 
fact, leave the country or overstay their visits or remain 
within our borders, that is still unknown.
    So my question is this: What steps are you taking to track 
who has entered the United States through the Visa Waiver 
Program and if, in fact, they have left or overstayed the 
program? This has never been done. We do not know. And I think 
the time has come for it to be done--the tracking, that is.
    Secretary Napolitano. Yes, Senator. And there are obvious 
reasons to do it that way because then you know exactly who is 
in the country, how long they are entitled to stay, and if they 
are an overstay, to take appropriate action.
    With respect to the Visa Waiver Program, let me say that 
from an air travel standpoint, ESTA is in the process of being 
implemented. A number of carriers are now using it, and that is 
being added onto almost weekly now. So that remains very 
effective. And through US-VISIT and other programs, we are 
looking at ways to enhance that.
    The problem you identify is much bigger than a visa waiver 
problem, and that is, how do you measure who has left the 
country not just at the airports--and I believe that over the 
next years there will be a way to improve our ability to track 
at airports who has left. It is the land ports, because there 
we really do not have yet--and I hesitate to say how much it 
would even cost to do so--a process by which we really match 
who is in with who is going out. I would be happy--and really 
have put it on my radar. What can we do as a Nation to solve 
that particular problem?
    Senator Feinstein. It is a big problem.
    Secretary Napolitano. Huge.
    Senator Feinstein. It is the soft underbelly of this 
    Secretary Napolitano. It is huge.
    Senator Feinstein. So thank you very much. My time is up.
    Chairman Leahy. Senator Grassley.
    Senator Grassley. Thank you.
    Chairman Leahy. You came in. I thank you. Good to see you 
    Senator Grassley. Thank you, Mr. Chairman.
    What I am going to ask you, Madam Secretary, you had 
nothing to do with, but you can correct it, so I want to bring 
this up.
    Chairman Leahy. Aren't you glad you came?
    Senator Grassley. Last month, the Government Accountability 
Office released a report that I requested analyzing cooperation 
between DEA and other law enforcement agencies. This report was 
a real eye opener for me, and the findings were even worse than 
I had anticipated. Chief among the findings was that the 
current outdated Memorandum of Understanding for narcotics 
investigations, referred to as Title 21, is outdated, and 
because of that ``there is a potential for duplicative 
investigative effort and concerns that officer safety could be 
compromised,'' with ``officer safety could be compromised'' 
emphasized. So a serious finding.
    The GAO essentially confirmed that longstanding turf wars 
between DEA and ICE have created an environment dangerous to 
our own agents. So I say that that is unacceptable.
    The GAO ultimately made three major recommendations: One, 
that the Secretary of Homeland Security and the Attorney 
General show leadership and renegotiate outdated MOUs; two, 
that the Secretary of Homeland Security immediately order ICE 
to participate in the DOJ Fusion Center; and, three, that DHS 
and DOJ create a mechanism to review MOUs periodically so we do 
not end up here again like 15 years since they have been 
    These recommendations are long overdue, and I wrote to you 
this letter April 21st, which is not so long ago compared to 
how long it usually takes to get answers from bureaucracies, 
and not necessarily your Department. I asked you to implement 
these recommendations. To date, I have not heard a reply. These 
law enforcement turf battles are unacceptable in this post-9/11 
world. So several questions.
    Could I expect a written reply soon from you?
    Secretary Napolitano. Absolutely.
    Senator Grassley. Okay. Will you commit to immediate 
implementation of GAO recommendations--after you have had a 
chance to study them, obviously? If you do not know them, as I 
do, I would not expect you to answer if you have not studied 
them. But I hope that you would look at them and implement them 
    Secretary Napolitano. Senator, the Attorney General and I 
have already been--before the GAO recommendations came out, we 
were discussing these outdated MOUs, particularly with respect 
to Title 21 authority. Some of those MOUs date back to--I think 
one of them is 1975. I mean, they are really old.
    He and I served as U.S. Attorneys together, actually, and 
it is our commitment to update those and make sure those MOUs 
match the reality of law enforcement today.
    Senator Grassley. Have you ordered ICE to begin 
participating with the Fusion Center?
    Secretary Napolitano. ICE does participate with Fusion 
Centers in different ways in different parts of the country, 
but I would be happy to provide you more detail on that.
    Senator Grassley. Okay. Well, again, then I would hope that 
you would use GAO recommendations as a baseline for that.
    Would you ensure that ICE begin participating--well, this 
was going to be a follow-up question. And you obviously believe 
then--you just told me that the MOUs should be updated 
    Secretary Napolitano. Yes.
    Senator Grassley. You are in the process of doing that. Do 
you believe that the current cap on the number of cross-
designated ICE agents who are authorized by DEA to investigate 
Title 21 cases should be increased?
    Secretary Napolitano. I think that is something that goes 
along with redoing the MOUs, and it makes--well, take the 
cross-border issue I was just discussing with Senator Feinstein 
where you have ICE agents really actively involved in doing 
cartel casework, not to have Title 21 authority, and to have to 
shift cases over to DEA, that is something that really needs to 
be thought through again, in light of the changing law 
enforcement needs that we have. So the Attorney General and I 
have committed to work together and to update those basic 
operating documents.
    Senator Grassley. Okay. And my last question then: Do you 
believe that ICE should be given statutory Title 21 authority? 
Or do you believe that this matter can be worked out 
administratively through the process to revise MOUs?
    Secretary Napolitano. Senator, I think it might be quicker 
to try to work this out administratively between the Department 
of Justice and the Department of Homeland Security. I would 
like to take that crack first.
    Senator Grassley. Well, and I will be observing how that is 
going, and I hope you would consult with me. I am one that has 
been dealing with this for so long that I think we ought to 
take action. But it would be faster if you could do it, and I 
hope you are successful.
    Secretary Napolitano. Thank you.
    Senator Grassley. Thank you, Mr. Chairman. Mr. Chairman, I 
am done.
    Chairman Leahy. Thank you. We have a roll call that 
started. Senator Durbin, why don't you start? I will go and 
vote and come right back. Then if there is another Republican 
back here at that time, he will follow you, Senator Durbin. If 
not, another Democrat.
    Senator Durbin. Thank you, Mr. Chairman.
    Madam Secretary, thanks for being here. As a former 
Governor of a border State, the story I am about to tell you 
may sound familiar. Two weeks ago, I had a meeting in Chicago 
with students from one of our leading high schools. I met a 
young woman who was valedictorian of her class and was on a 
winning team in a science competition who had been accepted at 
an Ivy League university and was looking forward to pursuing a 
degree in biology, which may lead to medical research or 
becoming a medical doctor. But she had a problem. She came to 
the United States when she was 2 years old. She was brought by 
her parents from Mexico. Her parents sold corn on the street 
corners, and she grew up here. She speaks perfect English. She 
has never known another country in her entire life. And she is 
    I have introduced a bill for 8 years now called the DREAM 
Act. My cosponsors this year include Senators Lugar and 
Menendez. And it says for young Americans--or young people 
living in America in her circumstance that they be given a 
chance through either 2 years of service in the military or the 
completion of 2 years of college to move toward legal status. I 
am hoping--praying--for so many young people who are counting 
on this that we will have a chance to consider and pass that 
this year.
    Could you tell me your opinion of the DREAM Act?
    Secretary Napolitano. Yes, Senator. As a Governor of a 
border State, this is one of those areas where everyone wants 
the immigration law enforced, we must enforce it, it is part of 
our national sovereignty, among other things.
    On the other hand, we have to have the ability to deal with 
some of the human issues that arise here, and the one that you 
have identified is one of the most acute.
    I supported the DREAM Act when I was Governor. I support it 
now. One of the most moving things I have been privileged to do 
as Secretary is to administer the oath of citizenship to men 
and women in our military who have been serving in Iraq, who 
were not citizens, who have elected to become citizens. In a 
way, it kind of mirrors what you are talking about in the DREAM 
Act. But it seems to me that the DREAM Act is a good piece of 
legislation and a good idea.
    Senator Durbin. Thank you.
    The first hearing I had of the Crime Subcommittee was on 
the Mexican drug cartels. I am going to describe for the record 
a case which you are familiar with because it involves your 
State of Arizona.
    In March, a State judge in Arizona dismissed charges 
against a gun dealer accused of knowingly selling about 700 
weapons through intermediaries to two smugglers who shipped 
those weapons from the United States to a Mexico drug cartel, 
over 700 weapons. Several of these weapons were recovered in 
Mexico after shoot-outs with the police, including a gunfight 
last year in which eight Mexican police officers were killed.
    This case shows how difficult it is to convict gun dealers 
who are knowingly supplying weapons to the Mexican drug 
cartels. Federal law currently does not have tough criminal 
statutes on the books specifically aimed at arms traffickers. 
In order to prosecute gun dealers and purchasers who knowingly 
supply guns to Mexican drug cartels, prosecutors often have to 
charge these individuals with paperwork violations such as 
making false statements on the purchase forms, and these 
offenses carry low penalties and can be very hard to establish.
    What is your view of this situation? Is it simply a 
question of additional resources and personnel to deal with 
this exporting of guns to the Mexican drug cartels? Or do we 
need to make sure that our laws allow us to prosecute those who 
knowingly supply weapons to these Mexican drug cartels?
    Secretary Napolitano. Senator, where we are taking this is 
to more effectively enforce the laws currently on the books. 
For example, until we began our southbound strategy, there 
really was no process by which we were even finding the guns 
that were being exported illegally across our borders. Second, 
improving the intelligence gathering about who is really 
funneling arms to these cartels.
    So my view right now and my charge is to take the laws that 
we currently have and to fill the gap between the law on the 
books and what actually should be done from an enforcement 
    Senator Durbin. But I guess what I am asking you is whether 
you have an opinion--and maybe you do not at this moment--as to 
whether the laws are adequate. This situation I just described 
to you is egregious. Your Attorney General of the State of 
Arizona has been a leader and testified at our Crime 
Subcommittee hearing about the problems he has run into in 
trying to deal with this issue.
    If you have an opinion, do you believe that we need to 
strengthen the laws when it comes to trafficking and smuggling 
firearms from the United States into any country, including 
    Secretary Napolitano. I do not have an informed opinion 
because I think that opinion needs to be informed by, when you 
increase your enforcement strategy, what results you can 
actually obtain. I would rather be given some time to really do 
that and report back to you about what we are getting from our 
strategy with the existing laws.
    Senator Durbin. I wish you would.
    Secretary Napolitano. Yes.
    Senator Durbin. One last question, if I might, on H-1B 
visas. Senator Grassley and I have introduced legislation to 
correct what we consider to be clear abuses. The most 
outrageous abuses when it comes to H-1B visas include the fact 
that some major companies overseas, primarily in India, have 
successfully managed to marshal many of these H-1B visas and 
make a profit off of them. They charged the citizens of India 
coming to the United States on H-1B visas, and then after 3 to 
6 years when they are to return to India, they charge to place 
them in companies which will then compete with the United 
States. That is certainly not the stated intent of anyone who 
has come to me asking for H-1B visas.
    Second, there is a serious concern, a very serious concern 
that Senator Grassley and I share, that many of these H-1B visa 
holders are going to displace American workers or be placed in 
a position where unemployed American workers might otherwise 
have an opportunity. And we think this has to be carefully 
monitored. We feel--and I hope you share--that our first 
obligation is to American workers, and to encourage, if not 
hold accountable, those firms that are looking to fill spots to 
first turn to the talent pool in America, and particularly 
those who have lost a job.
    Do you have any opinions on the H-1B visa program?
    Secretary Napolitano. Yes, Senator. First, I agree with 
you. Our top obligation is to American workers, making sure 
American workers have jobs. From an enforcement standpoint, my 
priority is to make sure that there is not fraud occurring 
within the H-1B program at all.
    Over the last months, we have added some tools. We have 
added fraud prevention tactics. We have begun looking at other 
more standard fraud investigatory techniques that were not 
being used in H-1B that we are now going to employ, including 
things like site visits and worksite visits.
    We are going to keep at this to make sure that the intent 
of that program is fulfilled.
    Senator Durbin. Thank you very much.
    Senator Cardin. Madam Secretary, first of all, thank you 
for being here. Thank you for what you have been able to do and 
your commitment to our national security and homeland security.
    I want to start with a hearing I chaired yesterday on the 
Terrorism and Homeland Security Subcommittee dealing with the 
issuance of passports. I know that is not under your agency, 
but passports are very much in your portfolio as far as 
national security and homeland security are concerned.
    It was brought to our attention through Senator Feinstein 
and Senator Kyl, a GAO report in which they fabricated 
documents in four cases, and in four out of four, they were 
able not only to get passports but to get boarding passes for 
    We looked at the type of information that was used to get 
the passports. The driver's license I think on its face should 
have been determined to be a fraud, and in two cases, they used 
Social Security numbers that were fraudulent, and if they did 
the checks, it would have shown that they were inappropriate. 
They did not go through the checks. Four out of four is 
    I just want to bring that to your attention. I can assure 
you that this Committee is going to continue to oversight that 
and do everything we can to make sure that passports remain the 
gold standard for identification. But I would hope that you 
would show some interest in this and follow up to make sure 
that from the point of view of your reliance on passports you 
have a right to believe that only those who are entitled to 
receive passports are receiving passports.
    Secretary Napolitano. Yes, Senator. I concur and share 
those concerns, and there is also the issue of the use of lost 
or stolen passports as well. So, yes, we are paying quite a bit 
of attention to this.
    Senator Cardin. Let me go to another hearing we had in our 
Subcommittee which dealt with sharing of information among 
intelligence agencies as well as with local law enforcement, 
and this has been a continuing battle. Former Senator Gorton 
pointed out that he felt that there were enough laws on the 
books, but that they were not being used appropriately to make 
sure that the right information was placed in the data bank and 
there was appropriate access to that information and that we 
had not quite got that done yet, and local law enforcement 
could very well stop someone and not have the information they 
need in order to protect our homeland security.
    On the other side of that, I would bring to your attention 
the circumstances of the Maryland State Police where they used 
resources for an investigation for over a year into lawful 
protesters who were exercising their First Amendment right to 
express their opposition to the war and to the death penalty. 
That information was then made available to Federal agencies 
inappropriately, and it is still unclear whether that is in our 
data bank or not.
    So I bring this to your attention because I know that you 
called for a review of how information is shared, and I was 
hoping that you could perhaps bring us up to date as to where 
we are in your review as to whether we can improve the way that 
we bring information into our data banks and share it with 
local law enforcement and protect the privacy and civil 
liberties of the people of our Nation.
    Secretary Napolitano. Yes, Senator. Our review is not yet 
complete, but let me share with you a few of the things that I 
have found.
    No. 1 is our sharing of information with State, local, and 
tribal law enforcement is inadequate. In other words, a lot of 
it is not operational. It does not really inform somebody what 
specifically they are looking for and why. We want to improve 
that real-time data sharing and improve the mechanisms by which 
we get information back, because really from a law enforcement 
perspective, the vast majority of the eyes and ears out there 
are police officers and sheriff's deputies and tribal police 
officers and the like. And we do not really have a good way to 
collect what they are seeing.
    So I look forward and hope the Senate will confirm the 
nominee to be the head of our Intel and Analysis Division, 
because one of his charges is going to be--and one of the 
value-added things I think our Department can contribute--is to 
take all of this intel that is out there and make it more value 
added for State, local, and tribal law enforcement.
    The second thing I have added is that we must do a careful 
job of what I call a privacy analysis of what we are doing. We 
have brought into the Department an expert on privacy law to 
help us and to look at things that are being done, practices 
that are being carried out to advise us on the privacy issues 
that are implicated--all the more important because once 
something is in a data base, it is almost impossible to take 
out of a data base. So we have added that as part of our own 
internal procedure.
    Senator Cardin. Congress has passed a law that established 
a Privacy and Civil Liberties Oversight Board, and it has never 
been appointed. Will you take a look at what your position, 
what the administration's position is going to be in regards to 
moving forward with that oversight board, which was recommended 
by the 9/11 Commission but has never been implemented? And if 
you are prepared to answer that question now, fine. If not, I 
would appreciate you getting back to us, letting us know 
whether we can look forward to that board becoming effective.
    Secretary Napolitano. Senator, that one I will have to get 
back to you on.
    Senator Cardin. I could tell by your expression, so I 
appreciate that and would welcome that.
    Let me just last point out one other issue, and then I am 
going to turn it over to Senator Whitehouse, and that deals 
with the biological security at our labs, which is an immediate 
concern to me. Fort Detrick is located in the State of 
Maryland. It was the location where the anthrax occurred, where 
our security was breached. And I just want to bring that to 
your attention that our Subcommittee is also going to spend a 
good deal of effort looking at the relationship between the 
different agencies because there are so many agencies involved. 
And one of our concerns is that as we have consolidated our 
homeland security in one agency, there are still lots of 
responsibilities in other agencies. And here the FBI has a 
responsibility, the Department of Justice, and we need to 
better coordinate to make sure that we are using consistent 
standards, who has access to biological elements for the 
security of our country. And I would just urge that we work 
together to make sure we have a consistent policy and one that 
protects the security of our country.
    Secretary Napolitano. I could not agree more.
    Senator Cardin. Thank you.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Mr. Chairman.
    Madam Secretary, good to be with you.
    Secretary Napolitano. Senator.
    Senator Whitehouse. You are now the Secretary of Homeland 
Security, but earlier in our careers, we were both United 
States Attorneys and Attorneys General with considerable 
responsibility for what I might call ``hometown security.'' And 
if there is a refrain I hear more often than any other from my 
police chiefs in Rhode Island, it is that the budget for 
homeland security has ballooned in recent years to the point 
where they have funds at their disposal to buy things that 
they, frankly, think are almost ridiculous, while at the same 
time, the key elements of hometown security have been whittled 
away at. You see repeated efforts in the previous 
administration to cut the COPS program, to cut Byrne grants. 
You see very important areas like the re-entry of folks once 
they have served their terms of incarceration back into society 
getting scarce attention. And I just want to hear your thoughts 
philosophically on the extent to which we have properly 
balanced homeland and hometown security and whether you are 
willing to work with Attorney General Holder to rebalance that.
    I will put my opinion right out there on my sleeve. I think 
that homeland security was favored at the expense of hometown 
security, and there is, I think, a reasonable case to be made 
that it was done for political purposes to make America look 
like it was on a wartime footing with respect to the whole 
terror issue in order to support the notion that this is a 
wartime President who we all had to rally behind.
    So I am not sure that the case was made in the Bush 
administration entirely on the merits of the physical security 
of the American people, and I would like your thoughts on that 
    Secretary Napolitano. Thank you, Senator. You know, it is a 
responsibility of the Department of Homeland Security, in my 
view, to provide resources that would enable hometown security, 
your local police departments, sheriff's offices and the like, 
to add onto their responsibilities the whole counterterrorism 
province, which previously they had not really been charged 
with. But everybody has a role to play here.
    The initial grant process out of the Department----
    Senator Whitehouse. I guess the scope of that role is what 
my questioning is about. It really strikes me as not all that 
necessary for, you know, Cranston, Rhode Island, to be 
regularly involved in anti-terrorism planning or for folks in 
South Providence to see facilities being used for anti-
terrorism planning when murders are happening regularly on 
those streets that are not getting adequate attention.
    Secretary Napolitano. Senator, there I would suggest that 
the local law enforcement role never changed, and that was 
always local and State obligations to pay for, with the 
augmentation of things like the COPS program, which I strongly 
support and which I think had a real benefit on those kinds of 
cases. What the Department of Homeland Security's function was 
was to add on to that.
    Now, I think there were some things, as the Department was 
stood up, that we have grown through, for example, how grants 
are distributed and what will be paid for. I think too often we 
paid for the newest widget, law enforcement widget, you know, 
the fancy whatever, truck or whatever, as opposed to really 
looking at risk and looking at manpower and effective 
technology. And those are the things that I think really need 
to be our funding types of priorities. So as we have gone 
through this, I think we can become much more sophisticated, as 
it were, in terms of what is the real value added of a 
Department of Homeland Security, but that basic law enforcement 
function in terms of crime on the street--murders, armed 
robberies and the like--remains a State and local prerogative.
    Senator Whitehouse. I would love to get to a place where 
the State and local folks who are enforcing that prerogative 
are doing a little bit less scratching of their heads as to why 
the Federal Government is putting so much money into things 
that they consider to be of marginal or limited utility while 
real and pressing problems that affect the security of homes 
and neighborhoods are left unaddressed. So I just want to let 
you know that to the extent that is the discussion that you 
care to have, this is where I am on it.
    Secretary Napolitano. All right.
    Senator Whitehouse. The other thing I want to discuss with 
you is cyber security. It is a very significant problem, and I 
want to share with you my concern that the classified elements 
of the previous administration's cyber strategy in my view put 
us on a collision course with very basic civil liberties 
questions if the trajectory is not adjusted and adjusted fairly 
soon. I do not know exactly what is happening at this point in 
the 60-day review that has been taking place that is getting 
near to its end. But I would encourage you to actively look at 
that question and be alert to that particular problem. If you 
extend the Bush strategy, I believe, on the trajectory that it 
was launched on, it drives you to a civil liberties collision 
that is unnecessary and I think unhelpful. It would create a 
whole element of drama and fighting and concern about an issue 
where I think if it is properly designed, we can come together, 
because we have a huge common interest in preventing cyber 
    Secretary Napolitano. Senator, I agree, and it has been one 
of my top priorities as Secretary to be engaged with that 60-
day review, to be identifying people to bring in the Department 
who are experts in the cyber world, and to really understand 
the leadership role that I believe the Department of Homeland 
Security will need to play here, both with respect to the dot-
gov sites, the civilian part of Government, but also with 
respect to working with the private sector. And, of course, 
part of that are some of the privacy issues that are 
implicated. So this is a keen interest of mine and a keen 
interest within the Department right now.
    Senator Whitehouse. Yes, I look forward to working with you 
on it because I do think that time is relatively short, and 
before we get to a juncture at which we have to either stop 
expanding the plan or continuing its trajectory into the areas 
of real and genuine civil liberties concern, or come up with 
some alternative. But where we do not want to be is in a 
position where we get to that point and suddenly realize, oops, 
we have not thought this through, we really should not do that 
because of civil liberties concerns, but we have not developed 
Plan B that gets us around that obstacle. And I think that is 
where we are headed.
    Secretary Napolitano. Fair enough.
    Senator Whitehouse. Thanks very much, Mr. Chairman.
    Chairman Leahy. Thank you.
    Madam Secretary, I am not going to ask you at this point 
just what a comprehensive immigration bill might look like. We 
are just beginning to look at it now. But I wonder if you might 
tell me what we should be looking at as two or three of the 
most pressing problems in immigration today.
    Secretary Napolitano. Thank you, Senator. It seems to me--
and I have dealt with this immigration issue on the ground 
since I was U.S. Attorney in 1993, then as an Attorney General, 
then as a Governor in the State where illegal immigration was 
actually funneled. I mean, Operation Gatekeeper went into place 
in the San Diego-Tijuana area. Operation Hold the Line went 
into place at the Federal level in the El Paso area. And 
illegal immigration by that was actually funneled into Arizona, 
and that caused a whole host of consequences. And so I have 
really been thinking deeply about this.
    It seems to me that we have to have the confidence of the 
American people that the immigration law is enforced, and that 
it is enforced intelligently and fairly. And we need to sustain 
those efforts.
    Chairman Leahy. Do you think that confidence is there 
    Secretary Napolitano. It depends on who you ask and when.
    Chairman Leahy. Okay.
    Secretary Napolitano. But I think that we are making good 
strides there, and I think we can show quantitatively that 
progress, significant progress has been made.
    Second, I think we need to really look at what is the role 
of State and local law enforcement in that because that has 
evolved over the last 15 years.
    Third, I think we need to revisit all of the visa programs, 
the various visa programs that are out there, how they are 
enumerated, how they are adjusted, how we make sure that we are 
not costing Americans their jobs; but at the same time, having 
that input of immigrants into our country that has been such a 
part of our own history.
    And then, last, we are going to have to look at the issue 
of those who are in the country illegally and particularly 
those who have been here for quite a period of time.
    Chairman Leahy. Well, let us talk a little bit about them, 
because you saw that certainly in your own State of Arizona, 
and we see it even in my little State of Vermont. But 
nationwide you have got millions of people who are--what is the 
expression?--``living in the shadows,'' or any other expression 
you want. They are in an undocumented status.
    I have always remembered something I saw once. I was 
driving in from the airport in Los Angeles, and there was a man 
walking down--he was in work clothes, appeared to be Hispanic, 
walking down the street. We were stopped at a stoplight so I 
could see this. Somebody walking the other way had a large dog 
on a leash. The dog suddenly lunged out, bit the man in the leg 
ripping his clothes. We could see blood spurting out. And the 
person with the dog just kind of looked at him and walked on, I 
think realizing this person was probably an undocumented alien 
and they are not going to be able to do a thing about this. 
They cannot complain. They cannot do anything about this dog 
biting him because they have no status here.
    Now, that is just one minor thing. The rights of the 
people, that you and I enjoy, can be trampled on in these 
people because of their undocumented status. Secretary Chertoff 
told us, and President Bush did, too, that it is not a 
practical solution to simply round up and deport these millions 
of people. You would agree with that, would you not?
    Secretary Napolitano. The ability of our country to do that 
and the sheer logistics of doing that are overwhelming.
    Chairman Leahy. But all the more reason why I think we 
should try again on some kind of an immigration bill. I agreed 
with President Bush when he said he wanted a comprehensive 
bill. For a number of reasons, that fell by the wayside. This 
Committee will work with you on that issue.
    Then in Vermont and elsewhere--this may seem parochial, but 
I would like to talk about H-2A and dairy workers. Vermont does 
get H-2A workers, certainly apple pickers in our State have 
been the tradition. They come up for a few months. And that is 
fine. You pick apples at a certain time of the year. Dairy cows 
have to get milked year round, as you know.
    Secretary Napolitano. That is right.
    Chairman Leahy. And under current regulations, dairy 
farmers cannot obtain H-2A workers for their farms, so you end 
up employing undocumented workers.
    I would like you to look at the H-2A rules and see how they 
might be changed, whether they should be changed, to help dairy 
farmers who want people on a year-round basis, and also take a 
look at whether that can be done administratively even without 
a change in the law. Will you look at that?
    Secretary Napolitano. Mr. Chairman, I would be happy to. 
You are exactly right. The H-2A is for temporary or seasonal 
workers, and because cows have to be milked every day, dairies 
do not qualify.
    On the other hand, it seems to me that we should be able to 
revisit this issue, and if we cannot do something in looking at 
this administratively, come back to you and say we cannot do 
it, Congress is going to have to act, this is what would fix 
the problem.
    Chairman Leahy. Thank you. And one other thing, and this is 
totally parochial. On Interstate 91 in Vermont--and I have 
raised the same question with Secretary Chertoff and with 
others--the Customs and Border Protection has been operating a 
temporary immigration checkpoint on Interstate 91--not up by 
the border, but some distance from the border, closer to 
Massachusetts. I have consistently asked what is the reason for 
it. Agents were actually pulled off the border to be down 
there. It is a pain in the neck for Vermonters and others, and 
if I wanted to avoid it, there are about a dozen parallel roads 
that go down in New Hampshire and in Vermont, that go straight 
down to the border that do not go on the interstate. You have 
got something that is sort of semi-permanent. Everybody knows 
it is there.
    Can we at least look at this and give me some assurance 
that this, what I hope is a temporary aberration, does not 
become a permanent blight? I do not want to indicate by the 
nature of my question how I feel about it.
    Secretary Napolitano. Thank you for that very neutral 
question, Mr. Chairman.
    Without talking about the I-91 checkpoint, we had a similar 
issue with the I-19 checkpoint in southern Arizona. I can give 
you the theory of an interior checkpoint. It is several-fold. 
One is that you have to have a system in border areas and into 
the country from border areas because you never catch everybody 
at the border. And in a way, what the interior checkpoint helps 
you figure out is how many people are actually getting through 
what you have so you can adjust what you have.
    Second, at least the interior checkpoints I have been 
involved in, they are typically not alone; in other words, you 
may have the interior checkpoint, but it is coupled with other 
things that are going on around those side roads, and because 
people know who are coming in illegally -the knowledge passes 
pretty quickly about where there is a checkpoint. But it makes 
it easier to identify who is intentionally trying to evade the 
authorities, and that is not an uncommon law enforcement 
    But, third, I want you to know, Mr. Chairman, that I have 
said I want to see what the yield on these checkpoints is and 
is this really the best use of the manpower and the dollars 
that we have for effective border enforcement, not just in 
Vermont but elsewhere. And so we are doing that now.
    Chairman Leahy. Okay. I appreciate that. When Secretary 
Chertoff was here--and I hate to pick on him in his absence, 
but he was saying, knowing that I would ask the question, he 
had a list: Well, we found X number of people doing this, X 
number of people doing that, and we were able to get them. And 
I said, Well, by that same theory, if you are coming in from 
Maryland or Virginia, you have to cross bridges into D.C. 
Hundreds of thousands of people come in every day. I am one of 
them. You could have checkpoints there. I guarantee you will 
find drugs. You will find people on which there are outstanding 
warrants. You will find some illegal immigrants. You will also 
bring the city of Washington, D.C., to a screeching halt, and 
you will have a traffic jam that will extend to Pennsylvania 
and West Virginia and North Carolina and everywhere else.
    So I think there has to be some idea of what do we actually 
accomplish. Is the pain worth what we get? Is the pain worth 
the gain? And that is, I think, the question that has to be 
asked. Or are we better off using some of those same people and 
some of that same allocation of money on the border itself and 
so that they can check on people?
    Now, we do not have a closed border between the United 
States and Canada. I can show you from Maine to Washington 
State, I can show you places where you could easily cross the 
border. There are huge areas, not just in Vermont, but North 
Dakota and everywhere else. We want to be realistic about what 
we do. You can imagine how you could stop traffic into Detroit, 
for example.
    These are areas where I think we have to be realistic. I am 
not going to ask any further questions. I see Senator Klobuchar 
is back. I will yield to her. And I have just been handed a 
note that Senator Sessions is coming back. And, of course, we 
will not end this until he has a chance to ask further 
    Please go ahead, Madam Secretary.
    Secretary Napolitano. Thank you, Mr. Chair. And as I said, 
that is exactly the analysis that we are performing internally: 
What is the yield for some of these techniques that we have 
been using?
    Senator Klobuchar. Thank you very much. You thought you 
were done, but we are back. Thank you, Madam Secretary. I 
wanted to again thank you and the Acting Director for FEMA for 
the good job that you did with the flooding in Moorhead, 
Minnesota, and Fargo, North Dakota, and it was much appreciated 
by those residents that FEMA was so present and helpful and 
continues to be helpful.
    You and I have talked before about some of the issues with 
funding formulas and how you have these two communities, and we 
were just looking at these pictures. I think it is hard for 
anyone to tell which is which, but one is Moorhead and one is 
Fargo, and they are both flooded. And we have to make sure, I 
hope in this case, that the communities are treated the same 
for how the funding formula works and that in the future we 
look at areas that are across State lines and make sure that 
however the reimbursement, the cost-sharing formula works, that 
they are treated the same, because it just would seem 
outrageous to me that one side of a bridge the neighbors get a 
75-percent reimbursement and the other side of a bridge they 
get 90 percent when one State has almost double the 
unemployment of the other. So I just wondered if you could 
address that.
    Secretary Napolitano. Yes, Senator, and we are looking at 
many issues with FEMA reimbursement because there are some 
anomalies that happen. For example, you have communities on the 
opposite side of the same river that flooded the same way, and 
yet because the calculations are done based on State 
populations in part, you get different results.
    Part of that I have asked for what is driven by policy as 
opposed to actual rule that would have to be changed through 
the APA versus what is driven by the Stafford Act itself. We 
will work with you and your staff on this because it seems to 
me that when something is inherently illogical, we ought to be 
able to fix it.
    Senator Klobuchar. Well, that is very practical, so thank 
you very much for that.
    The second thing I wanted to touch on, I know one of the 
other Senators mentioned the H1N1 virus, but being that I am 
from the third biggest hog-producing State in the country, just 
for you to clarify that this, in fact, you cannot catch it from 
eating bacon or any pork products would be helpful.
    Secretary Napolitano. Senator, that is exactly right, and I 
have tried to have a ham and cheese sandwich every day last 
week to make that point.
    Senator Klobuchar. That is very nice. Well, I am going to 
serve bacon at our Minnesota Morning where we invite all our 
constituents tomorrow morning just to make the point. So, of 
course, you are welcome to join us.
    Secretary Napolitano. Thank you.
    Senator Klobuchar. The second thing is just as it looks 
like we may be out of the woods--we are not certain--with this 
virus, but there is always--I keep hearing how when they look 
back at history that some of these viruses come back in the 
fall or at other times. Could you talk about the preparations 
being made in case that happens?
    Secretary Napolitano. Yes, Senator. With respect to the 
current outbreak, we are in what I call a state of ``active 
caution,'' but we have been able, for example, the CDC, based 
on the medical evidence it now has, to ratchet back school 
closure guidance, that sort of thing.
    However, we know that this very well could come back in the 
fall, and it could come back in a more virulent form. We will 
know better over the course of the summer because we may be 
able to find some things about what happens in the Southern 
Hemisphere during their flu season. So that will help inform 
    But we are not standing down any of the planning efforts, 
and although I think what happened over the past week, 10 days 
worked well, we also saw areas that we need to make more robust 
where things can be improved, where planning needs to be more 
thorough. We are going to work at that over the summer.
    One concern I shared earlier with the Committee is that an 
awful lot of this is dependent on State and local capacity, 
public health officials, you know, those sorts of things, and 
with their budget situations, a lot of that capacity has been 
diminished right now. So plans that were written 2 or 3 years 
ago may not match what their actual resources are. I think we 
have to recognize that and adjust accordingly.
    Senator Klobuchar. Very good. I also wanted to mention I 
did some work when I first came in, too much work, on problems 
with passports, and this was about 2\1/2\ years ago. I am a 
brand-new Senator. We have all these idealistic young people in 
our State office, and literally, we had to have two people 
full-time helping people with their honeymoons, basically, 
because the previous administration had gotten so far behind on 
the passports so that people who had legally applied for their 
passports were not able to get them. I think we had--I just 
checked--1,500 cases in a few months in 2007. I will report we 
saved 17 honeymoons and lost one.
    I know there have been improvements, but that continues to 
be a concern. And Minnesotans cross the border to Canada all 
the time, so a more specific question would be what is going on 
with the Western Hemisphere Travel Initiative. You know, we 
have people that go back and forth to take ballroom dancing, 
and it is a big concern on the border that that go as smoothly 
as possible.
    Secretary Napolitano. Thank you, Senator. It is my intent 
that it go as smoothly as possible. We have been engaged in a 
pretty aggressive public relations campaign. We are working 
actually with Canada on that--television, radio. We have 
distributed 6 million-plus tear sheets at the border telling 
people that in June of this year, WHTI is actually going to 
happen. The State Department has--in the wake of what happened 
several years ago where they got that terrible backlog, they 
have staffed up to be able to process passports, and so we are 
really doing everything we can humanly think of to do to make 
sure that WHTI implementation goes as smoothly as possible.
    That being said, I think there is a culture change that is 
happening, and that is more difficult to predict, because 
people have been used to going back and forth along that border 
pretty easily as if really it were not a real border. And with 
WHTI, it really becomes a much more formal designation as a 
    And so we will try to ease that transition, but I think it 
is fair to say that that is a big change for that area of the 
    Senator Klobuchar. Exactly. Last, I got a little bit 
involved in the TSA watchlist issue because we have--I guess we 
have a lot of people named Johnson, I do not know, but a lot of 
people with common names in Minnesota. So we had people that 
were wrongly identified, put on the watchlist, and we were 
working with the previous administration last summer on this. 
And I know the Secure Flight Program is now being implemented, 
and I wondered if you could comment about what has happened 
with that, if you believe there is going to be some reduction 
in these misidentifications or what you think the best way to 
proceed with this is.
    Secretary Napolitano. Yes, Senator, and I can think of 
nothing more frustrating than being put on a watchlist and not 
being able to get off, when there is no reason for you to be on 
the list to begin with except your name.
    So we have worked to make more efficient the process by 
which someone gets removed from a watchlist, but, yes, you are 
right, the implementation of Secure Flight will help us really 
mitigate that problem moving forward. I do not think we can 
totally eliminate it, but I think we can mitigate it.
    Senator Klobuchar. And the idea is to move it off of the 
airlines more and to have it be with TSA?
    Secretary Napolitano. That is correct.
    Senator Klobuchar. Thank you.
    Chairman Leahy. Thank you.
    On the WHTI, for those of that are northern border States, 
this is still a major question, and we will work with you to 
ease it. Certainly even in my State you have so many families 
where part of the family -I mean, they live a mile apart or 2 
miles apart, but they are in different countries, and they are 
just used to going back and forth. It becomes very difficult 
when you tell an 85-year-old Grandpere or Grandmere they are 
going to have to get a passport to go and see their 
grandchildren. It is difficult. And the names, that is--I mean, 
you have seen all the horror stories, a 1-year-old child, the 
parents could not fly with him because the name is on a 
watchlist, and they bought the tickets, cannot fly, they have 
lost their tickets, they have got to go get a passport to prove 
this 1-year-old child is not a 45-year-old person on the 
watchlist. You know, at some point there has to be some 
flexibility for people just to be reasonable.
    I remember when Ted Kennedy, who was a member of this 
Committee, was stopped a dozen times--or 8 or 9 times, anyway, 
on a flight he had been taking forever to Boston because he was 
on a watchlist. President Bush actually called him and 
apologized, and he said, ``Well, I appreciate that, but I do 
not want an apology. I just want to be able to get on the 
airplane.'' These are things where there has got to be some 
ability to think it through.
    Anyway, Senator Feingold has not had his first round, so we 
will go to Senator Feingold, and then Senator Sessions.
    Senator Feingold. Thank you, Mr. Chairman.
    Madam Secretary, welcome. You touched on this issue to some 
extent in your answer to Senator Klobuchar, but I would like to 
elaborate. The 2009 emergency supplemental bill drafted in the 
House reportedly includes over $1.5 billion for HHS and CDC to 
combat pandemic flu, including money for vaccines, and $350 
million to aid State and local public officials.
    The GAO has reported that a lack of State and local public 
health professionals is actually a significant obstacle to any 
response to a pandemic, and this may become more of an issue as 
the recession further constrains the various States' budgets, 
as you well know.
    In your view, are we allocating the appropriate level of 
pandemic resources to the State and local level, especially 
when you consider that vaccines may not always be available in 
time and we need State and local assistance to track the spread 
of a virus, disperse vaccines, and treat those who are already 
    Secretary Napolitano. Senator, I think the $1.5 billion 
that the President requested was a good figure to lean forward 
with. I do not know that any decisions have been made about how 
specifically that would be allocated, say, between HHS and 
State and locals. I think that process now we can begin to 
undertake in light of what we have learned with this initial 
    Senator Feingold. Okay. Switching to another topic, in 
February of last year, the Washington Post reported that 
customs agents had been searching the cell phones and laptops 
of U.S. citizens and international business travelers coming 
across the border and then copying the contents. And I asked 
then-DHS Secretary Michael Chertoff about this issue when he 
appeared before this Committee a little over a year ago, and a 
few months later I held a separate hearing on this issue in the 
Constitution Subcommittee.
    DHS' answers to my questions and its public statements on 
its practices and policies in this area were often confusing 
and even contradictory. In September, I then introduced a bill, 
the Travelers' Privacy Protection Act, to require that border 
agents actually have a reasonable suspicion of wrongdoing 
before they search laptops and other electronic devices.
    Madam Secretary, the current policy has caused a great deal 
of consternation not only among members of certain minority 
groups who believe they are singled out for heightened 
screening when they return from trips overseas, but I actually 
get a lot of comments of great concern from business travelers 
in general. In fact, testimony at the hearing I held indicated 
that some companies feel compelled to give their employees who 
travel overseas a special laptop that has been wiped clean of 
any confidential information because they do not want 
Government agents looking at and potentially making copies of 
it when the business traveler returns.
    Do you agree with me that the current DHS policy raises 
legitimate privacy concerns? And what steps are you taking to 
review and revise the policy?
    Secretary Napolitano. Yes, I think clarification is needed 
here. And we have put together a team within the Department of 
Homeland Security to issue pretty firm guidance and protocol 
for how you conduct a laptop search.
    That being said, I would say, Senator, that in the course 
of the very few laptop searches that actually have been done--
and it has been a very small number that actually have been 
conducted--they have found some fairly significant criminal 
activity on some laptops.
    But moving forward, we are a global society, people going 
from country to country all the time. They are crossing the 
border. They need to take their laptops to do business. We need 
to have a better policy that takes into account some of those 
IP concerns, some of the privacy concerns. That is what we are 
drafting now.
    Senator Feingold. Well, Madam Secretary, I do not have any 
doubt that if you search laptops indiscriminately, you are 
going to find some good stuff. But that is not the way we do 
business in this country, and I know you understand that, but I 
have held off reintroducing my bill because I wanted to give 
the new Administration a chance to revisit this policy, but I 
cannot just wait forever. So I am wondering how soon I can 
expect your review to be completed and a revised policy to be 
put in place.
    Secretary Napolitano. We are working on it right now, 
    Senator Feingold. And when do you think it will be done?
    Secretary Napolitano. Senator, if I give you a timeframe 
and do not meet it, you will be unhappy with me. But let me 
suggest within the next 45 days.
    Senator Feingold. All right. Well, I appreciate that and I 
understand it cannot be precise. I appreciate your willingness 
to say that.
    On a related and somewhat broader point, I wanted to bring 
to your attention two reports issued this past month by civil 
rights organizations. The Asian Law Caucus and the Stanford Law 
Immigrants Rights Clinic published a study entitled, 
``Returning Home: How U.S. Government Practices Undermine Civil 
Rights at Our Nation's Doorstep.'' And Muslim advocates 
released, ``Unreasonable Intrusions Investigating the Politics, 
Faith, and Finances of Americans Returning Home.''
    The personal stories in these reports of American citizens 
being repeatedly detained and questioned for hours at a time, 
having their possessions taken from them, missing flights, and 
having to pay for stays in cities away from home are troubling. 
A progress report that DHS issued on April 29th indicated that 
you have sent the DHS Office of Civil Rights and Civil 
Liberties to meet with leaders of the Muslim, Arab, and Somali 
communities in seven major cities. I am sure the reports from 
those meetings will yield similar stories.
    Will you direct your staff to review these reports and get 
back to me with your response to the recommendations that these 
organizations have made for changes in DHS policies?
    Secretary Napolitano. Yes.
    Senator Feingold. I thank you, and I thank the Chair.
    Chairman Leahy. I like these lengthy answers.
    Chairman Leahy. It makes life a lot easier up here.
    Senator Sessions.
    Senator Sessions. Thank you. Mr. Chairman, I think while I 
was out, you made reference to comprehensive immigration 
reform. The need to fix our immigration system is something I 
    Let me just share with you my personal view. I think it is 
an accurate political analysis and reality. The American 
people, correctly, are dubious of a plan that gives lawfulness 
now to people who came in illegally, without confidence that 
the legal system is going to work in the future and we are not 
going to be back in the same situation just a few years from 
now and, in fact, that amnesty or that status that we provide 
for those who entered unlawfully, it becomes a magnet or a 
message abroad.
    There has been some progress, even under President Bush's 
administration, to see. I think the numbers show a decline in 
illegal immigration into the country. We are on the right 
track. So that is why I am encouraging you to say and do things 
that make this trend continue, because as a manager, a concept 
I learned during the surge-in-crime years of the 1960's and 
1970's, when the crime starts going down and your agents are 
going up, then you have a certain leverage and ability you did 
not have when you had a low number of agents and a surging 
    So the numbers are going down. This puts you in a position 
to execute some policies that will work, and I want to ask you 
about one of them. And I think when the American people realize 
that the broken pipe is being fixed and we are not just mopping 
up the water but we are fixing the leak, we can have a far 
better discussion about how to deal fairly and humanely with 
people who have been here a long time.
    Looking at Operation Streamline--and this relates back to 
my previous questions about whether it is a crime to enter the 
country, and I think you--I know you know that it is a 
misdemeanor on your first entry and a felony on the second. In 
five different border sectors, I think those in Arizona, all of 
them, maybe all of your sectors----
    Secretary Napolitano. It is both the Tucson and Yuma 
sectors, yes, sir.
    Senator Sessions. OK, both Tucson and Yuma. And Yuma pre-
Streamline--and streamlining is where those who have been 
apprehended are not just taken back to the border and sent home 
that same day, that they are held for at least a few days and 
they are required to plead guilty to a misdemeanor, and then 
they go home. For several reasons, they have told me, this is 
working better than they imagined that it would. In Yuma, in 
2006 there were 117,000 apprehensions. That gives some picture 
of the scale of what we are doing. In 2008, that had dropped to 
8,000, a 93-percent decrease. I am sure there have been 
barriers and other things, but the prosecutions, according to 
anecdotal evidence I have gotten, have told people that, well, 
the United States has changed their policy, it is no longer an 
open border, they are really serious about this. When you just 
take them back and say come try again next week, that is not a 
good message.
    So you have a responsibility to send the clarity of message 
not only to the United States but to the world who might be 
interested in coming illegally.
    At Laredo, the numbers in 2007 were 56,000 arrests after 
partial implementation of Operation Streamline. In 2008, the 
next year, they had dropped to 43,000, a 23-percent decrease. 
In Del Rio, pre-Streamline there were 68,000 arrests. When 
Streamline had been fully implemented, in 2008 a 70-percent 
    Are you familiar with this program? Have you been briefed 
on it? And are you committed to continuing it where it is in 
existence? And will you expand it?
    Secretary Napolitano. Senator, I am very familiar with 
Streamline, and as you note, your first-time cross is a 
misdemeanor, and what Streamline does is the historical 
practice in these border districts has been not to use the 
judiciary, the Article III courts for the misdemeanors, and to 
handle these as departs, as civil matters. And so what 
Streamline did was change that decision and say we are at least 
going to pursue the misdemeanor there.
    At the same time that Streamline was happening, other 
things were happening. The fences were going in or other 
vehicle structures. More Border Patrol agents were being placed 
on the ground. The National Guard had been called up. That was 
my suggestion, but the National Guard was being placed in these 
    Senator Sessions. Right.
    Secretary Napolitano. So that all happened together, and 
then, of course, you had the economy change, and that had an 
effect on overall immigration numbers in Streamline and non-
Streamline jurisdictions as well.
    However, I believe that these kinds of strategies that send 
an enforcement message are very useful, and they need to be 
sustained. And I want to get to the point implicit in your 
question, which is we need to keep these efforts up even as 
numbers are going down. We need to sustain them over time. And 
one area that is outside my lane but is in this Committee's 
lane is the impact on the court systems in that part of the 
country when you adopt these strategies, because you are 
talking thousands of people, literally, that now get funneled 
into Article III courts in very sparsely populated border 
districts and marshal's offices that have to help with 
transportation and detention and all the rest.
    We are trying to provide support at least on the marshal's 
side, but the courts themselves are very stressed by this.
    Senator Sessions. But I would note that when you have a 70-
percent decrease from the peak of the commencement of 
enforcement and those numbers continue to drop each year, the 
stress has been high on the courts and the prosecutors, but it 
is moving in the right direction. They actually have fewer 
cases, and I think they have been provided some additional 
resources to handle the challenge.
    Do you think--you sound like you do favor those programs. 
Will you consider expanding it?
    Secretary Napolitano. Yes, I favor them, implemented in the 
right way and when they are producing results that you can 
measure. And we will be looking at other strategies in other 
places as well.
    Senator Sessions. Well, you could follow through on these 
programs and do some other initiatives and be able to preside 
over real improvement, I think, in the lawfulness of our 
immigration system. And I think that is your challenge. I think 
that is what the American people would like to see you do.
    Secretary Napolitano. I think the President has asked me to 
make sure that we have strong and vigorous enforcement of our 
Nation's immigration laws.
    Senator Sessions. And we will be looking at those numbers, 
the best numbers we can get, and I think the American people 
will hold you accountable for progress. And I think we can have 
    Secretary Napolitano. Thank you, sir.
    Chairman Leahy. Thank you, Senator Sessions. And, again, I 
welcome you here in your new role on the Judiciary Committee.
    Madam Secretary, you and I have known each other for years. 
You were your usual unflappable and highly qualified self here. 
I think that this has been a very difficult time in the United 
States, but a lot of the issues have come before you, and I 
think you have done not just yourself and the President but the 
country great credit with the way you have handled it. Your 
appearances on the various television shows, the various media, 
have been--I know in my State--reassuring to a lot of people 
across the political spectrum. And I think that is a very 
important role that you carry, and I think that it has been 
reassuring because they know behind what you are saying is an 
extraordinarily competent person.
    So I thank you very much, and we will stand in recess.
    Secretary Napolitano. Thank you, Mr. Chairman.
    [Whereupon, at 11:55 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record