[Senate Hearing 112-99]
[From the U.S. Government Publishing Office]



                                                         S. Hrg. 112-99

            OVERSIGHT OF THE DEPARTMENT OF HOMELAND SECURITY

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 9, 2011

                               __________

                           Serial No. J-112-9

                               __________

         Printed for the use of the Committee on the Judiciary

















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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York              JON KYL, Arizona
DICK DURBIN, Illinois                JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island     LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
AL FRANKEN, Minnesota                MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware       TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
            Bruce A. Cohen, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director










                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     2
    prepared statement...........................................   178
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................   182

                               WITNESSES

Napolitano, Janet, Secretary, U.S. Department of Homeland 
  Security.......................................................     4

                         QUESTIONS AND ANSWERS

Responses of Janet Napolitano to questions submitted by Senators 
  Cornyn, Feinstein, Grassley, Hatch, Klobuchar, Kyl and Leahy...    38
    Attachment - Civil Enforcement Priorities....................   155
    Attachment - ICE Continued presence Brochure.................   159

                       SUBMISSIONS FOR THE RECORD

GAO..............................................................   161
Napolitano, Janet, Secretary, U.S. Department of Homeland 
  Security, statement............................................   184
U.S. Border Patrol OTM Apprehensions FY2010-FY2011 through 2/28..   199

 
            OVERSIGHT OF THE DEPARTMENT OF HOMELAND SECURITY

                              ----------                              


                        WEDNESDAY, MARCH 9, 2011

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:06 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Kohl, Schumer, Durbin, Whitehouse, 
Klobuchar, Franken, Coons, Blumenthal, Grassley, Kyl, Graham, 
and Cornyn.

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

    Chairman Leahy. I was meeting with the Secretary yesterday. 
How many appearances have you had on Capitol Hill in the last 
couple weeks?
    Secretary Napolitano. This will be my fifth full Committee 
hearing in the last 2 weeks, last week and this week combined. 
Yes, sir.
    Chairman Leahy. We are going to have to get you an office 
up here.
    [Laughter.]
    Chairman Leahy. I am glad you are here, and I am going to 
put most of my statement in the record. I am just going to 
offer a few comments.
    First off, Madam Secretary, I want to acknowledge your 
decision to delay the implementation of the REAL ID Act. I 
think that is very good. I think that gives States more time to 
make progress. It also allows those of us in Congress who are 
looking at an alternative to REAL ID to do so. We go from the 
concerns of the security of the country, to the concerns over 
requiring Americans to have a national ID card, which worries a 
lot of us, to a mandate on the States that many of the States 
are not prepared to meet. We will work with you and your 
Department, but I think the delay in implementation is a good 
thing.
    We know that you are charged with protecting our security 
and responding to emerging threats, and I think all of us here 
are cognizant of that task. But we also hear from our 
constituents about security screening at airports. I think 
Americans expect to be treated with dignity when they go 
through an airport, just as we hope that our visitors to the 
United States are treated with dignity when they come here.
    For many Americans, the use of X-ray scanning machines that 
produce a detailed body image is a bridge too far. And for many 
Americans, the alternative of a pat-down is even more difficult 
to tolerate. I understand there is an effort among the TSA and 
the manufacturers of these scanners to develop new software 
that would render images without anatomical detail and in a 
truly anonymous manner. When you come from a small State like 
mine, where everybody knows everybody, no matter what kind of 
security technology you use, there is justifiable concern that 
an airport may use screening that produces images in graphic 
detail.
    Also some are concerned about the health effects of these 
scanners. We should not dismiss any citizen's health concerns, 
and we should all support independent assessment of any 
associated health effects of x-ray screening. One person I 
mentioned to you is a cancer survivor, and she will not go 
through the x-ray screening. She is a registered nurse. She has 
read all the reports. And she just cannot bring herself to go 
through an x-ray screening. Her reaction is one that weighs 
heavily on me. I have been married to her for 48 years.
    We cannot set aside the need to reform our Nation's broken 
immigration system, and we have to look at what might produce 
smart reform.
    And, finally, I want to thank you for working with me to 
protect refugees and asylum seekers. I was gratified by the 
announcement in December 2009 of a new parole policy for asylum 
seekers. I understand that it is being implemented with 
positive results, and I appreciate that.
    I will put my whole statement in the record.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Chairman Leahy. Again, Senator Grassley, I thank you for 
all your help, especially on the patent reform bill, which we 
passed last night.

STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE 
                            OF IOWA

    Senator Grassley. It is very gratifying to work with a bill 
that gets passed with only five dissenting votes in the U.S. 
Senate. But it is a tribute to you and a lot of other members 
other than me on this Committee who worked on it for a long 
period of time. I was on the sideline kind of in a sense of not 
being the main negotiator but being the beneficiary of a 
product that was well worked out because of your leadership.
    Chairman Leahy, I thank you for calling this hearing. This 
Department was created to defend our Nation's borders and 
infrastructure. Yet as we look at the Department of Homeland 
Security today, we see agencies failing to coordinate with one 
another, breakdowns in judgments, and failures to protect our 
Government's own agents on the front lines. In short, what I 
see is approaching a level that some might call chaos.
    With Mexican President Calderon visiting President Obama 
last week, it highlighted some of the problems that more and 
more Americans are becoming aware of. Violence on our southern 
border has escalated as gangs and cartels acquire more weapons. 
Further, our lack of defenses and their ability to evade 
justice has emboldened these criminals, who are becoming a 
greater threat.
    In just the last 3 months, the Department of Homeland 
Security has seen two of its own agents murdered in the line of 
duty: Border Patrol Agent Terry and Immigration and Customs 
Enforcement Agent Zapata. Both were tragedies, and my heart 
goes out to the families and loved ones of these agents.
    Most troubling is that agencies of our Government have 
contributed to this violence by intentionally allowing 
thousands of guns to be trafficked from the U.S. to Mexico. The 
Bureau of Alcohol, Tobacco, Firearms, and Explosives decided to 
let thousands of guns ``walk'' after being purchased by straw 
buyers intent on reselling them. Many of those guns ended up in 
the hands of bandits who operate on the border, trafficking 
drugs and other illicit goods back to our country.
    This risky strategy of letting guns ``walk'' did not occur 
in a vacuum. There are serious questions to be answered about 
the role played by the Justice Department and agencies within 
the Department of Homeland Security. This ill-conceived policy 
has clearly affected the lives of countless individuals who may 
have been victims of crimes perpetrated as a result of letting 
guns into the hands of criminals. Agents on the ground were 
ignored when they questioned the wisdom of this decision, and 
that just seems to pour salt on the wounds of the families who 
lost loved ones. When the agents came forward with concerns, 
you know what? They were shunned and retaliated against.
    If the Federal agencies charged with protecting America's 
borders were not working together, I have to question why the 
left hand did not know what the right hand was doing. If they 
were working together, then that raises the question of whether 
any other agencies objected. Who else knew? How high up was it 
approved?
    The American people deserve answers. The families of those 
who may have died as a result deserve answers as well. Our 
Government is organized precisely so that Congress can require 
accountability and oversight of the activities of the U.S. 
Government in situations like this.
    There are many other issues that need to be discussed as 
well, so I am looking forward to asking our Secretary guest 
today about the internal memos written by officials in her 
Department that outline ways that the administration can 
circumvent Congress and provide legal status to millions of 
people who are in this country illegally.
    Every Republican member of this Committee sent the 
Secretary a letter on September 21st of last year inquiring 
about the internal amnesty memos and the use of the special 
discretionary authority granted to the Secretary. We asked the 
Secretary to come before Congress to meet with members and 
explain the memos. The letter reply was unbelievably 
frustrating, to say the least. The Secretary responded to this 
very serious issue by changing the subject to enforcement. The 
response barely touched on the internal memo about how to 
sidestep Congress and keep the undocumented individuals in the 
country. The Department refused to allow a briefing for 
Committee members with the authors of the memo. The Department 
assured the public that deferred action and parole would not be 
granted to the entire illegal immigrant population. But what 
about the tens of thousands that it could have applied to? 
Questions remain about potential plans to benefit certain large 
segments of the undocumented population.
    I also have questions about the Department's misuse of the 
Privacy Act as an excuse to stonewall Congressional oversight 
by Senators who happen to be in the minority in the name of 
protecting the rights of terrorists.
    I am also concerned about the extension of the deadline for 
States to comply with the REAL ID law and the inability to 
maintain operational control over borders.
    I thank the Secretary for coming. I appreciate it very much 
and look forward to hearing what she has to do to address some 
of these concerns.
    Thank you very much.
    Chairman Leahy. Thank you very much.
    Madam Secretary, we will put your full statement in the 
record, but please feel free to go ahead.

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

    Secretary Napolitano. Well, thank you, Mr. Chairman, and 
thank you, Senator Grassley, members of the Committee. I 
appreciate the opportunity to testify about the Department's 
work to keep our Nation safe from terrorism and other threats 
as well as our historic border security and immigration 
efforts.
    As you know, we just observed the eighth anniversary of the 
Department. I believe in those 8 years and the nearly 10 years 
after the 9/11 attacks we have built a more effective and 
integrated Department, a strengthened homeland security 
enterprise, and a more secure America.
    Indeed, last week we had a program at Georgetown University 
featuring all three Secretaries of the Department on the same 
stage: Secretary Ridge, Secretary Chertoff, and myself, each of 
us acknowledging Homeland Security 1.0 when it started, 2.0 
under the Secretaryship of Michael Chertoff, and then the great 
advancement that has been made based on that strong foundation 
moving forward.
    Now, as I often say, homeland security begins with hometown 
security. Working hand in hand with first responders, State, 
local, tribal, and territorial governments, community groups, 
our international partners, and the private sector, we have 
made great strides in protecting our Nation from terrorism and 
other threats while building a culture of resiliency and 
preparedness across the Nation.
    Let me address just a few issues that are particularly 
within the jurisdiction of this Committee.
    Border security. Over the past 2 years, the Obama 
administration has launched an unprecedented effort to bring 
focus and intensity to southwest border security, coupled with 
a reinvigorated, smart, and effective approach to enforcing our 
immigration laws in the interior of the country. Under our 
initiative we have increased the size of the Border Patrol to 
more than 20,700 agents today, more than double the size it was 
in 2004. We have doubled personnel assigned to Border 
Enforcement Security Task Forces. We have increased the number 
of ICE intelligence analysts along the border who are focused 
on cartel violence. We have quintupled deployments of border 
liaison officers to work with their Mexican counterparts. And 
we have been screening 100 percent of southbound rail and also 
a large percentage of vehicle traffic for the illegal weapons 
and cash that are helping fuel the cartel violence in Mexico.
    Additionally, with the aid of the supplemental requested by 
the administration, passed by the bipartisan Congress last 
summer, we are adding more technology, manpower, and 
infrastructure to the border, including 1,000 new Border Patrol 
agents, 250 new CBP officers at the ports of entry, 250 new ICE 
agents focused on transnational crime, two new forward 
operating bases, and two more unmanned aerial vehicle systems. 
In fact, we now have UAS coverage along the entire reach of the 
southwest border from El Centro to Brownsville.
    President Obama also has authorized the deployment of 
1,200-plus National Guard troops who are actively supporting 
our work along the border, and we continue to engage in 
unprecedented cooperation with Mexico.
    While we still face challenges--and we are not here running 
a victory lap--one thing is clear: The approach is working. 
Nationwide, Border Patrol apprehensions have decreased 36 
percent in the past 2 years and are less than one-third of what 
they were at their peak. We extrapolate from that that fewer 
people are trying to cross our border illegally.
    Our seizures of illegal cash, drugs, and weapons are up all 
across the board, and violent crime in southwest border 
communities has remained flat or fallen, even as drug-related 
violence has increased in Mexico, and we want to make sure it 
stays that way.
    Now, we remain very concerned about drug cartel violence in 
Mexico, and we must vigorously guard against potential 
spillover effects into the United States. As you know, or as 
many of you know, I remain in regular contact with the police 
chiefs and sheriffs along the southwest border because they 
will be the first ones to see if there is an uptick in 
spillover violence before we actually get the FBI crime 
statistics. So even as we get the statistics, we are keeping 
live contact with those directly involved on the front line.
    Now, I can speak for the entire administration when I say 
we are not only saddened by the loss of our agents, but we are 
outraged by these acts of violence against officers of the 
United States. Justice will be brought to those involved. We 
owe nothing less to the memory of Agent Zapata, Agent Terry, 
and to those who are still on the job along the border and in 
Mexico. And I look forward, Senator Grassley, to answering, to 
the extent I can in a public hearing, your questions about 
those deaths.
    Our fiscal year 2012 budget request continues the 
administration's continued and historic border security efforts 
by supporting a record number of Border Patrol agents and 
border protection officers in addition to the deployments of 
proven effective technology along the highest trafficked areas 
of the southwest border, as well as technologies tailored to 
the maritime and cold weather environments we experience on our 
northern border.
    Currently we have more than 2,200 Border Patrol agents on 
the northern border, a 700-percent increase since 9/11, and 
nearly 3,800 CBP officers at ports of entry and crossings. We 
are also in the process of modernizing more than 35 land ports 
of entry along the northern border to meet our security and 
operational needs, and we recently extended the range of UAS 
coverage there by nearly 900 miles.
    Let me address immigration enforcement because as we have 
strengthened the border, we have stepped up our efforts on the 
interior of the country. Over the past 2 years, ICE has removed 
more illegal immigrants from our country than any 2-year period 
before, with more than 779,000 removals nationwide. And in 
2010, more than half of those removed were convicted criminals.
    We have worked to ensure that employers have the tools they 
need to maintain a legal workforce and face penalties if they 
knowingly and repeatedly violate the law. And we have made 
changes to our immigration detention system to recognize the 
basic differences between immigration violators, some of whom 
we find are children, families, and the like, and the detention 
system needs to recognize the violators that fall in those 
categories all the way up to and including the most serious 
violent criminals.
    Our fiscal year 2012 budget request continues these 
priorities, supporting efforts to fund 33,400 detention beds, 
removal of over 200,000 criminal aliens, and deploy Secure 
Communities to 96 percent of all jurisdictions nationally in 
fiscal year 2012, while promoting compliance with worksite-
related laws through criminal prosecutions of egregious 
employers, Form I-9 audits and inspections, and continued 
expansion and enhancement of E-Verify.
    At the same time, we must continue to improve our legal 
immigration system. By streamlining and modernizing operations, 
we are now processing applications for naturalization and other 
immigration benefits in record time. We have made our online 
systems more customer friendly, and we naturalized record 
numbers of military personnel this past year.
    All of this work will only get stronger with comprehensive 
immigration reform, and I look forward to working with the 
Congress to make changes to our immigration laws to more 
effectively secure the border and support our law enforcement 
priorities, while meeting the labor, economic, and other needs 
of our country.
    Thank you, Mr. Chairman, for this opportunity to testify. I 
am happy to answer the Committee's questions.
    [The prepared statement of Secretary Napolitano appears as 
a submission for the record.]
    Chairman Leahy. Thank you, Madam Secretary. As I said, your 
full statement will be placed in the record, as well as 
statements by any of the members. We will go to 5-minute 
question rounds for members. I will ask questions first, then 
Senator Grassley, and then we will go back and forth based on 
the order of arrival.
    Americans and a good number of Vermonters, as I mentioned 
to you privately earlier, express concern over the screening 
technology and the physical searches conducted in airports. I 
understand the need for safety, but Americans appreciate their 
privacy. I understand TSA is working with industry to develop 
software that will render X-ray images of travelers into 
anonymous images without anatomical detail. But I also 
understand that even when the software takes an image and 
alters it to obscure body images, there is still a raw X-ray 
image that is captured. And so we need a little bit more 
information about this.
    First, how long will it be before all airports' screening 
machines are updated to better protect citizens' privacy? And 
what protocols or procedures are followed by TSA to make sure 
that the raw images are not stored or improperly viewed or 
disseminated?
    Secretary Napolitano. Well, thank you, Mr. Chairman----
    Chairman Leahy. Of course, it would be a crime to 
disseminate them, but go ahead.
    Secretary Napolitano. Exactly. First of all, we are moving 
to this new technology because of the threats that we faced as 
illustrated by the so-called underwear bomber in December of 
2009. But it is clear that al Qaeda and its affiliates still 
view aviation as a target. The intelligence tells us that. And 
they have moved beyond explosives that contain metallic 
material, so the magnetometer is not by itself always adequate.
    The new machines, we call them AIT, advanced imaging 
technologies. We are piloting right now software that produces 
on the image a stick figure as opposed to a more complete 
image. And even as we purchase the machines, the protocols, the 
contracts, the rules all say they cannot collect, store, 
disseminate any image. Indeed, all that has happened is that 
the officer who is not actually at the line so they cannot 
associate an image with a person, they see it, they see whether 
there is an X for an anomaly and it moves on.
    Chairman Leahy. Even though the machine would pick up the 
raw image, the person who conducts the screening is only going 
to see the stick figure?
    Secretary Napolitano. Under the new software, that is how 
it would work, yes, sir.
    Chairman Leahy. Are manufacturers working with you on this? 
What role do they play?
    Secretary Napolitano. Yes, we are working with the vendors 
on the software, and we are continually working to improve the 
software to eliminate false positives as well as to make sure 
we accurately capture what needs to be checked out.
    Chairman Leahy. Would you welcome an independent study and 
assessment of any potential health hazard for this screening?
    Secretary Napolitano. Well, absolutely. We have already had 
it. We have had it through the National Institute of Standards. 
We have had it through Johns Hopkins University. They have all 
concluded that the machines are more than safe. The amount of 
radiation is approximate to about 2 minutes in the air.
    Chairman Leahy. I mentioned I am glad you delayed 
implementation of the REAL ID Act. I have said for years that 
the best way to encourage the States to make improvements in 
their driver's licenses is to make the States a partner in 
this.
    Now, there have been homeland security grants that have 
been used by States to meet some of the REAL ID benchmarks. If 
REAL ID were repealed and replaced with an alternative program, 
would that result in a waste of taxpayers' money? Or would we 
be able to build on what has already been done?
    Secretary Napolitano. Actually, Mr. Chairman, I am 
harkening back to my days as a Governor. I never saw an issue 
unite Republican and Democratic Governors so much as REAL ID as 
a huge unfunded mandate that really did not recognize how motor 
vehicle divisions actually worked State by State by State.
    We worked with the Governors and with the national 
Governors Association shortly after I became Secretary to 
devise an alternative that would meet our Nation's security 
needs but----
    Chairman Leahy. Concerning PASS ID.
    Secretary Napolitano. PASS ID. It did not move forward in 
the Congress, I suppose with the press of other things. We 
would ask that the Congress take a fresh look at that.
    Chairman Leahy. Okay. Now, as I wrap up my first round, can 
you tell me what are the emerging threats facing us today from 
the perspective of your Department? And if the House-passed 
budget cuts become law, what effect would that have on your 
programs?
    Secretary Napolitano. Well, the House-passed budget is, to 
say the least, not helpful in any number of regards. It will 
require cutting 250 ICE agents. It will reduce our ability to 
deploy new technology, and also technologies like explosive 
trace detection, machinery in our Nation's airports. It will 
delay our ability to deploy EINSTEIN 3, which is the cyber 
protection program for our Nation's civilian networks, 
particularly of the Federal Government's civilian networks. It 
will cut our ability to provide support to State fusion 
centers, which are a key part of our homeland security 
architecture. And it will cut grants to State and local first 
responders by almost $1 billion. And in this era of their 
constrained budgets, that will have a real and discernible 
impact on the ground.
    Chairman Leahy. Thank you.
    Senator Grassley.
    Senator Grassley. Yes, thank you, Madam Secretary.
    Over the past month, I have been investigating serious 
allegations regarding Bureau of Alcohol, Tobacco, and Firearms, 
the allegations that thousands of guns were intentionally 
allowed to flow through known straw purchasers near the 
southwest border into Mexico, and those allegations are 
stunning. As of now, I have received nothing but denials from 
Acting Director Melson or Attorney General Holder.
    Now, I am not sure I expect you to know what happens at the 
grass roots in everything in your Department, and this is not 
``gotcha'' questions. It is kind of what do you know and what 
you did not know. So these are my questions:
    Are you aware that one of your Immigration and Customs 
agents was working on this case out of Phoenix called Operation 
Fast and Furious? And if so, when and how did you learn about 
it?
    Secretary Napolitano. I am not aware of any particular 
agent. I am aware of the ATF operation generally and have 
become aware in the wake of the murders of Agent Terry and 
Agent Zapata.
    Senator Grassley. Did you sign off on this operation? And 
if so, when?
    Secretary Napolitano. No. This is within the Justice 
Department, sir.
    Senator Grassley. Okay. Did anyone ever express concern to 
you about the Bureau of Alcohol, Tobacco, and Firearms 
purposely allowing gun traffickers to purchase through straw 
buyers? And if so, what did you know about it?
    Secretary Napolitano. No, no concerns were expressed to the 
Secretary.
    Senator Grassley. Okay. Did you ever discuss with anyone 
anything similar to the strategy described by whistleblowers in 
this case, that of allowing guns to walk to make a bigger case 
against the cartels? And if so, I would like an explanation.
    Secretary Napolitano. No, I was not so informed, and I know 
that, however, the Attorney General has asked his Inspector 
General to look at the operation.
    Senator Grassley. Okay. I would like to ask you how you 
feel about the fact that another agency's decision to put 
hundreds of guns into the hands of criminals on both sides of 
the border may have contributed to the death of Border Patrol 
Agent Brian Terry.
    Secretary Napolitano. Well, Senator Grassley, to date--and 
I have asked that question. My understanding is that the whole 
Terry matter is under investigation, including the source of 
the guns that were held. So I think it would be immature--
premature, not immature--premature and inappropriate to comment 
on that right now.
    Senator Grassley. Part of the reason I ask that question is 
because the family is not very satisfied with the information 
that they are getting, and I do not blame you for that, but I 
want you to know that there is that dissatisfaction.
    Let me go on. When Border Patrol Agent Brian Terry was 
killed, his tactical unit used thermal binoculars to spot at 
least three bandits seeking to cross the border carrying AK-
47s. Yet according to a sworn affidavit from an FBI agent, when 
the bandits refused to drop their weapons, our agents fired 
non-lethal bean bags, like this. The bandits responded with 
gunfire of this type, the bullets that I am showing the picture 
of. These are .762 caliber cartridges.
    I would like to ask you, according to Agent Terry's family, 
Federal officials told them in a family briefing that two of 
the agents in his group carried only these bean bag guns while 
two others had regular weapons. Do you know if that is true or 
not?
    Secretary Napolitano. I do not know if that is true, but I 
would like the opportunity to talk about our lethal force 
policy because I think there is a lot of misinformation in the 
blogosphere and other places.
    The head of the Border Patrol, Chief Fisher, actually comes 
out of Special Operations, so he comes out of the same group 
that Agent Terry was in when he was murdered. Our lethal force 
policy is the same as virtually every law enforcement 
department I know of in the country; that is, if you are under 
threat of serious injury or death, you may use lethal force. 
And like any other law enforcement agency, there is usually a 
mix of lethal and non-lethal devices that are carried, 
particularly when you have a multi-agent event.
    So while I know holding up the pictures seems very 
dramatic, the plain fact of the matter is that the lethal force 
policy of our Border Patrol is that they are entitled to use 
lethal force if they are under such a threat.
    Now, the particulars of the Agent Terry operation are still 
under investigation, and I think the facts will come out over 
time.
    Senator Grassley. I sent a letter on Friday asking for a 
copy of the use of force policy. Would you be able to provide 
that to us very soon?
    Secretary Napolitano. Sure.
    Senator Grassley. Okay. You may have answered this 
question, but let me ask it anyway. Is it true that Agent 
Terry's team was under a standing order to use non-lethal force 
even against armed bandits refusing to drop their weapons? And 
if not, how would you explain reports that he was under that 
kind of order?
    Secretary Napolitano. I have asked that question, and my 
information is absolutely not. Our lethal force policy is what 
I have described to you.
    Senator Grassley. Okay. I will continue my questions on a 
second round.
    Chairman Leahy. Senator Kohl.
    Senator Kohl. Thank you very much, Mr. Chairman.
    Secretary Napolitano, I have heard from several businesses 
in my State of Wisconsin about visa processing delays that 
hinder their ability to do business with international 
customers. These companies manufacture and sell complex 
machinery, bringing business into the American economy, but 
when foreign buyers apply for short-term business visas to come 
to the United States for training in how to operate this 
complex machinery, they can face delays of more than 90 days. 
Companies in Wisconsin are concerned that, when faced with this 
delay, foreign customers will be more likely to turn to 
overseas competitors who do not have such a cumbersome visa 
process. Therefore, these visa processing delays have a real 
potential to harm the American economy and cost us jobs.
    Of course, we need to maintain the highest level of 
national security in making visa determinations, but there must 
be a way to improve visa processing times while still fully 
protecting national security interests. What are you doing to 
work with the State Department to shorten the amount of time 
these B-1 visas take to process?
    Secretary Napolitano. Well, it is not just the State 
Department in those visas. It is also the Commerce Department, 
and I will be happy to share your concerns with them. We are 
always willing and able--and we work with those Departments on 
an ongoing basis. We have overall shortened visa times 
remarkably over the past few years. We continue to work on 
efforts to meet the dual demands. You have got to move 
commerce. You have got to protect security.
    Senator Kohl. With all due respect, that is not the answer, 
naturally, that I would like to hear. I seem to get the 
impression that there is not going to be much priority placed 
on shortening the time to wait for----
    Secretary Napolitano. No, that is not what I said, Senator, 
and if that was the suggestion, that would be inaccurate. What 
I am suggesting is that we are working not just with the State 
Department but also with the Commerce Department on those kinds 
of visas to shorten the amount of time as much as we possibly 
can.
    Senator Kohl. All right. Madam Secretary, as you know, the 
dairy industry is critical to Wisconsin and its economy. 
Wisconsin produces more dairy products than any other State 
except California, and it does lead the Nation in cheese 
production. Often immigrants are the only workers dairy farmers 
can find to keep their dairies running 24 hours/7 days a week.
    It is important to ensure that dairy farmers have access to 
the workers they need. Currently, farmers may bring in seasonal 
immigrant workers on H2-A visas, but dairy farmers cannot use 
this visa program because dairy farming is not considered to be 
seasonal. I believe we must revise the H2-A visa program to 
allow year-round agriculture, such as dairy farming or 
sheepherding to have access to year-long agricultural visas.
    As you know, there are legislative proposals to address 
this problem, but in past oversight hearings before this 
Committee, you committed to look into whether this problem can 
be fixed by a rule or a regulation rather than by legislation. 
Assuming you have completed that review, what are the results? 
And what can you do administratively to ensure that dairy 
farmers have access to the workers that they so desperately 
need?
    Secretary Napolitano. Senator, I appreciate that need, and 
I have looked into it, and the answer is that this would 
require a statutory fix because of the distinction between 
seasonal and non-seasonal labor. It is one of the hundreds of 
areas we run into now where real needs cannot be met because we 
have not been able to address the underlying immigration law.
    Senator Kohl. Madam Secretary, the Urban Area Security 
Initiative programs build local, regional, and statewide 
capabilities to respond to threats of terrorism and other 
manmade or natural disasters. Though many people may not know 
this program by name, we are safer because it provides first 
responders in the Milwaukee area, for example, with the ability 
to effectively coordinate and respond to our communities in 
times of need.
    For example, during the catastrophic flooding in the 
Milwaukee area last summer, this funding was used to train and 
dispatch volunteer rescue workers. I have heard from law 
enforcement back home that without this funding the Milwaukee 
area's ability to respond to these events would be hamstrung. I 
am sure that the Milwaukee situation is not unlike other mid-
size cities.
    The recent House spending bill included an amendment to 
eliminate Urban Area Security Initiative funding for 39 of the 
64 urban areas that now receive it. And under this plan the 
Milwaukee area would no longer be eligible for any funding.
    On March 4th, the President called for nearly half of UASI 
funding to be cut, but he did not specify whether it would take 
a similar approach to some cities ineligible. I appreciate the 
need to make cuts and sacrifices, but I am concerned that 
Milwaukee and other mid-size cities will be cut out entirely, 
as the House did in their bill.
    Madam Secretary, do you support the President's cuts to 
these Urban Area Security Initiatives? And if so, will you 
commit to ensuring that cuts are shared more broadly instead of 
taking the House approach of singling out mid-size cities like 
Milwaukee to lose out entirely on the funding?
    Secretary Napolitano. Senator, I think that, first of all, 
H.R. 1, the House-passed budget, cuts grants $1 billion, and it 
will affect our ability to train first responders and the like 
and to support UASI and some of these other very important 
initiatives. So there needs to be--I think there is a 
philosophical difference perhaps between the House and the 
Senate about the grants and the need to financially support our 
cities, our towns, our first responders, recognizing that all 
of them face risks of some nature.
    It seems to me that if reductions are to be made--and we 
have proposed, for example, consolidating 17 grant programs 
into 9 to eliminate administrative overhead, both by us and by 
States, cities, and towns--we need to maintain flexibility so 
that we can evaluate every locale and every application on its 
own merits, you know, in exchange for some reductions that 
flexibility is given.
    So without commenting on the House-passed resolution beyond 
that, that is one of the things I think the States and cities 
would like to see is, if grant funding overall is to be 
reduced, greater flexibility on how they can apply the monies.
    Senator Kohl [presiding.] Thank you so much.
    Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman.
    Madam Secretary, I would like to return very briefly to the 
Agent Terry issue. I was at the ceremony in Tucson, and I can 
attest to the fact that there are still a lot of questions that 
people would like to have answers to.
    You indicated that the case is still under investigation 
and were unwilling to describe whether or not you had been 
advised as to whether or not Senator Grassley's statement was 
correct, namely, that two of the agents were carrying firearms, 
two were carrying only weapons that could fire the bean bags.
    Have you asked that question and have you received an 
answer?
    Secretary Napolitano. Senator, I have received information 
about the investigation into Agent Terry's death. I think the 
murder of Agent Terry and the murder of Agent Zapata are 
outrageous acts against Federal officers in the line of duty, 
and they require our highest effort.
    However, because it is under criminal investigation in 
Arizona, I think it inappropriate to comment on the facts as I 
know them.
    Senator Kyl. Do you think that disclosing publicly whether 
or not the information that has been described is accurate 
would impede the investigation or the prosecution?
    Secretary Napolitano. I would prefer, Senator, before I 
talk about the details of the case, to be able to confer with 
the U.S. Attorney who is prosecuting it.
    Senator Kyl. There is an affidavit from FBI Agent Scott 
Hunter dated December 29th that is public. He is an FBI agent, 
and he alleges that the denial by CBP that agents were under 
specific--that agents were under specific orders to use less 
than legal force, he says that this is incorrect. Are you 
familiar with his affidavit?
    Secretary Napolitano. I have not seen that affidavit. I 
have, however, gone over the lethal force, use of force 
policies extensively with the leadership of the Border Patrol, 
who, as I said, come out of Special Ops.
    Senator Kyl. Excuse me, but if, of course, the agents do 
not have the weapons to use, then the ability under policy to 
use them is of little use.
    Secretary Napolitano. Senator, I think, first of all, I 
have been--as a U.S. Attorney, as an Attorney General, and now 
involved in, unfortunately and tragically, many cases where an 
officer has died in the line of duty, in my judgment it is 
important to let the prosecutor handle the facts, produce the 
evidence, and at that point we will do our own internal 
investigation.
    Senator Kyl. Well, and I appreciate that. You can 
understand the concerns of the family, and I have been an 
advocate of victims' rights for a long time, among which are to 
understand the facts of the case surrounding the death of a 
loved one. And too often, in my experience, prosecutors use the 
excuse of it is under investigation--I should not just say 
prosecutors but Government officials--to not disclose 
information to families.
    There is another tragic case in Arizona involving the U.S. 
military, and that involved a beloved military figure in 
Arizona. I am speaking of Tillman, the----
    Secretary Napolitano. Oh, Pat Tillman.
    Senator Kyl. Pat Tillman, the former Arizona Cardinal who 
was killed. And because information was not provided to the 
family, that has remained to be a matter of great concern to a 
lot of people in the State, and I do not want that to happen 
with regard to Agent Terry and his family as well.
    Secretary Napolitano. Senator Kyl, if I might add, we have 
been in contact, my understand is, with the family, as has the 
Justice Department through their victims assistance program, 
and we will continue to be so. My understanding as well is that 
this case is moving forward in the U.S. Attorney's Office 
there.
    Senator Kyl. Was the Department of Homeland Security 
consulted by anybody in the House of Representatives prior to 
the reduction in funding carried in the continuing resolution? 
And if it was, can you share with us what advice the Department 
gave?
    Secretary Napolitano. If it was, it was not at the higher 
levels.
    Senator Kyl. DHS has an outside working group of advisers 
that has prepared a draft report that, among other things, 
deals with the terminology for referring to Islamist 
terrorists, although that term would apparently be banned as a 
result of the findings of this working group. In fact, as I 
understand it, any reference to Islam or jihad would be 
inappropriate because it is alleged that the sociology 
regarding the motivation of these terrorists is still being 
studied.
    Do you have any problem acknowledging the influence of 
their faith on the various Muslim terrorists who have been 
arrested during your 2-plus years as Secretary?
    Secretary Napolitano. Senator, you know, I do not. I mean, 
there is, in fact, a small group of Muslims--``Islamists'' I 
think would be a better way or ``jihadists'' would be a better 
way to describe them--who target the United States and are the 
focus of a lot of the work that we do at the Department of 
Homeland Security. But that should not be used to tar the 
entire Muslim community.
    I believe--and I do not see it, and it is hard to respond 
to something you do not have before you, but we have focused--
you know, the question for the Department of Homeland Security 
is: How do we prevent a homegrown terrorist, a homegrown 
extremist, Muslim motivated or not, from being able to actually 
commit an act of violence, how do we detect and prevent? And we 
believe that one of the most effective ways we can do that is 
through supporting trained community police departments who are 
on the front lines, in the neighborhoods, know the people, have 
built bridges into communities.
    And so our strategy is really based on from a security 
level what can we do within the homeland that would be most 
effective. This is the strategy that was used a lot in the 
1980s and 1990s to break up some of the major gangs that were 
plaguing our cities and the like.
    The strategy was devised by or advised by an outside group 
that included a lot of chiefs, and we have been field-testing 
it at FLETC with other police and sheriff leaders from across 
the country over the past 2 weeks. So, really, what we are 
trying to do is, recognizing that we have--and this has evolved 
over the past 2 years--people who are actually U.S. persons who 
have become motivated to become jihadists or who have become 
motivated to commit violent acts in the name of an extremist 
ideology, Muslim based or other--and there are others--what is 
the best way that we can devise to have the homeland security 
architecture that would prevent such an act from being 
committed?
    Senator Kyl. Mr. Chairman, if I could just make a final 
comment. I appreciate that. Obviously that makes sense. It is 
important in dealing with an enemy here--and these are not just 
crimes. These are people who have a larger purpose in mind, and 
they are worldwide. And, of course, they do not represent 
anywhere near the majority of the muslims of the world, but I 
think it is appropriate--in fact, it is necessary to know who 
your enemy is in order to prevail against them, and 
acknowledging that in these cases people are influenced by 
their view of their faith and that some of them are, therefore, 
Islamists, jihadists--both of those I think are accurate 
terms--I think is important, and I appreciate your answer and 
would strongly encourage you to ensure that others in the 
Department do not shy away from, when it is appropriate, 
referring to terrorists by their real name.
    Thank you.
    Senator Kohl. Thank you, Senator Kyl.
    Senator Franken.
    Senator Franken. Thank you, Mr. Chairman. Thank you, 
Secretary Napolitano, for your testimony.
    I want to talk a little bit about and probably pick up a 
little bit on Senator Kyl's last few questions about the Somali 
community in Minnesota. About a couple of years ago now, a very 
small number of members of that community went back to Somalia, 
very young men, to train with Al-Shabaab, a terrorist 
organization. My experience is that no one was more upset about 
what happened than the Somali community in the Twin Cities 
itself. But yesterday I heard a Member of Congress on 
television say very categorically that there had been no 
cooperation from the Somali community or from community 
leadership, including imams, in the Twin Cities with Federal 
authorities. But my understanding from Federal authorities 
themselves, including in Minneapolis, is that there had been 
real cooperation from that community in Minnesota, including 
imams and the mosques.
    Is that your understanding?
    Secretary Napolitano. My understanding, Senator, is that 
there has been very active interaction between the Somali 
community in the Twin Cities and different aspects of the 
Federal Government, yes.
    Senator Franken. I just found it very disturbing, as I was 
watching this, the mischaracterization that I saw. And on 
behalf of my constituents who are in the Somali community in 
the Twin Cities, I took some umbrage.
    Secretary Napolitano. Senator, we have within the 
Department a section--it goes by the name Civil Rights, Civil 
Liberties, but they have been doing a lot of outreach to 
different Muslim communities around the United States and have 
done a lot of work in the Twin Cities itself with the imams, 
with others in the Somali-American community. So I know from 
our Department's perspective--I cannot speak with a lot of 
personal knowledge about Department of Justice and so forth. 
But from our Department's perspective, we have had good and 
healthy interaction with the Somali-American community there.
    Senator Franken. I have talked to people from the 
Department of Justice on this as well.
    Now, you have talked about combating this trend of 
recruitment by--and this is a quote--``using many of the same 
techniques and strategies that have proven successful in 
combating violence in American communities.'' My question is: 
How are you putting this idea into practice? For example, it 
seems to me like it would make sense to have a Somali face on 
some of our counterterrorism efforts in the Somali community in 
Minnesota. Is that something you are working on?
    Secretary Napolitano. Yes, and as I mentioned, Senator, one 
of the things we have done is devise a training curriculum to 
counter violent--on how to detect and prevent violent extremism 
from being able to successfully carry out an attack, looking at 
tactics, looking at techniques, and the like, and we are field-
testing that right now.
    Senator Franken. Madam Secretary, I want to talk about 
enforcing immigration laws and how they are enforced, and I 
know you have an important job in doing that. I am worried 
about making sure that our Nation's children do not suffer 
unnecessarily because of this.
    This is from a recent report from the Women's Refugee 
Commission. It talks about a Haitian woman from Florida named 
Jeanne who had four U.S. citizen children, and this is what 
happened to her kids after she was detained. Her abusive 
boyfriend made a 911 call, and she was taken away, and it was 
kind of--it does not matter. But here it says, Jeanne ``was 
unable to make arrangements for her children and for months had 
no idea where they were. When a nonprofit attorney was able to 
get her out of detention after 6 months, Jeanne discovered the 
children also had no idea where she had been or how to contact 
her. One child spent most of his time in his abusive father's 
taxicab, even sleeping there. One was found living with an 
unknown family that had taken him in, and a third was living 
with a school friend's family after having been kicked out of 
her abusive father's home.''
    Madam Secretary, at least 100,000 parents of U.S. citizen 
children have been deported over the past 15 years. I know that 
you have worked to protect children. There is a policy for 
nursing mothers, for worksite raids of 25 or more people, and 
for cases where an ICE agent has actually seized a child during 
a raid. But we still do not have a single comprehensive policy 
on how to identify kids that might get left behind, how to make 
sure they know where their parents are, and how to make sure 
they do not get lost in the system.
    Now, last year I introduced a bill called the Help 
Separated Children Act with six other colleagues, including 
five on this committee, to fix this. So we have thought about 
this problem, and I just want to make a simple request of you. 
Would you and your staff commit to working with me to try to 
find a way to improve the way kids are treated by this 
immigration system?
    Secretary Napolitano. Oh, absolutely.
    Senator Franken. Thank you. And thank you so much. I am 
looking forward to working with you very much.
    Mr. Chairman, thank you.
    Chairman Leahy [presiding.] Thank you.
    And as we go to border States again, Senator Cornyn.
    Senator Cornyn. Thank you, Mr. Chairman.
    Good morning, Madam Secretary.
    Secretary Napolitano. Good morning.
    Senator Cornyn. According to the Government Accountability 
Office, last fiscal year, 2010, there were 445,000 individuals 
detained at the southwest border. The Government Accountability 
Office points out that of the 2,000 miles along the southern 
border, 1,120 of those miles were not yet under operational 
control by the Federal Government. And of the 873 miles that 
were under operational control, they differentiated between 
controlled at 15 percent of that 873 and 85 percent, which they 
call managed, which means that basically they are in a position 
to try to detect and detain illegal aliens within a hundred 
miles of the border. I raise that issue because you made the 
statement, I believe, earlier that you think the 
administration's approach is working when it comes to border 
security. And you can correct me if I'm wrong.
    I would just give you one other bit of data, and that is, 
from the Border Patrol, the apprehensions during fiscal year 
2009 up to April 30, 2010, out of the 445,000 individuals 
detained at our southwestern border, there were 45,000 detained 
coming from a total of 140 different countries. In other words, 
these are not just individuals coming from Mexico or points 
South.
    Secretary Napolitano. These are the category known as 
``other than Mexico.''
    Senator Cornyn. That is correct. I noted in looking at 
these statistics and these numbers, which I will in a moment 
ask to be made a part of the record, that at least four 
countries are represented on this list of 140 countries that 
have been designated by the U.S. Department of State as state 
sponsors of terrorism. How can you possibly claim that the 
approach of the administration is working when it comes to 
border security in light of these statistics?
    Secretary Napolitano. Well, I think you have to look at the 
entire picture Senator. You have to understand, first of all, 
that ``operational control'' is a term of art by the Border 
Patrol. It does not include all of the assets that are being 
deployed to the border, the technology and so forth. And you 
also have to look at all of the numbers, and while our efforts 
need to be sustained and moved forward, we think we are on the 
right path. The numbers that need to go up are going up 
dramatically. The numbers that need to go down are going down 
dramatically.
    We are not done. We are continuing to work that border and 
work it hard. I have, as Senator Kyl knows----
    Senator Cornyn. We think more needs to be done.
    Secretary Napolitano. Well, we at the minimum need to be 
able to financially sustain what we are doing at the southwest 
border and that I think is something we will need to work with 
the Congress on.
    Senator Cornyn. Madam Secretary, sustaining the current 
effort means about a half million people coming across the 
border a year that are detained. And, of course, this is a 
strange way to keep statistics because as you know and I know, 
how many are detained tells you nothing about how many who got 
away. And, of course, there are many guesses about whether that 
is two get away for every one detained, three or four.
    But I also want to ask you, in the GAO report--which I will 
ask to be made part of the record in a moment--that is dated 
February 15th, they say that Customs and Border Patrol does not 
have an estimate of the time and efforts needed to secure the 
border.
    Do you have an estimate of the time and efforts needed to 
secure the border?
    Secretary Napolitano. Well, first of all, let me go back to 
your earlier point, Senator Cornyn. When I say sustain, I mean 
sustain the trends, sustain our downward trend on illegal 
immigrants getting across our border, sustain our upward trend 
on the seizures of drugs and illegal guns and bulk cash. So 
when I say sustain, I do not mean steady state. I mean sustain 
the kind of trend lines that we have developed over the past 2 
years.
    Senator Cornyn. I understand, but do you have an estimate 
of the time and efforts needed to secure the border that the 
Customs and Border Patrol said they were unable to provide?
    Secretary Napolitano. Well, if I might, Senator, this is 
not one of those projects where you say, well, by April 1, we 
are going to secure the border. This has to be----
    Senator Cornyn. Madam Secretary, I think I am asking--I am 
asking you a simple question. Do you or do you not have an 
estimate of the time and efforts needed to secure the 
southwestern border? Yes or no.
    Secretary Napolitano. Well, my answer, Senator, is that our 
efforts to secure the border will be continuing. And what I am 
afraid of is if I give you a date, at that point then resources 
will be taken away and put somewhere else. This will need to be 
a sustained effort over time.
    Senator Cornyn. I would suggest to the contrary, Madam 
Secretary. You know that you have members of this Committee who 
have been very active in the effort to provide your Department 
the resources that are necessary to finish the job. And I would 
just say that you mentioned the issue of immigration reform, 
and I join you in your observation that our immigration system 
is broken and needs reforming. But I have to tell you that as 
long as the American people have no confidence that the Federal 
Government is doing its job when it comes to securing the 
border based on enforcement of the rule of law, which is basic 
to our National creed, but is also a national security threat 
with our porous border admitting people coming from 140 
different countries other than Mexico, including four Nations 
that are state sponsors of international terrorism, this is a 
national security threat. So we need to regain the confidence 
of the American people before they are going to allow us to 
move forward on the sorts of things that you know and I know we 
need to do to fix our broken immigration system.
    Secretary Napolitano. If I might Senator, we have invited 
bipartisan leadership of the Congress to come down to the 
southwest border to see all the activities that at a bipartisan 
level have been supported across this border. I would suggest--
--
    Senator Cornyn. Madam Secretary, you do not need to invite 
a Texan or Arizonan to come to the border.
    Secretary Napolitano. I would suggest, however--I know that 
and I have spent almost my entire life on the border. I was 
raised in New Mexico; I spent my adult life in Arizona until I 
moved here. So I know that border very, very well. But there 
are other Members of the Congress who do not, and I think once 
they see what is down there and what is coming--because more 
and more keeps coming--they will understand both the enormity 
of the task, but also all of the operations that have been put 
into place.
    Senator Cornyn. Mr. Chairman, I would ask unanimous consent 
to make part of the record the GAO study that I referred to 
dated February 15th as well as the statistics I referred to 
with regard to apprehensions of aliens from countries other 
than Mexico, if I could make both of those part of the record.
    Chairman Leahy. Without objection, they will be made part 
of the record.
    [The information appears as a submission for the record.]
    Senator Cornyn. Thank you. I see my time has expired. Thank 
you.
    Chairman Leahy. It has and we will go to Senator Franken.
    Senator Franken. Well, I think actually we are going to 
Senator Blumenthal.
    Chairman Leahy. That is right. You have already asked. I am 
sorry. To Senator Blumenthal.
    Senator Franken. Obviously very memorable.
    Chairman Leahy. I saw that look on Senator----
    [Laughter.]
    Chairman Leahy. I had to step out on another matter and I 
apologize.
    Senator Blumenthal. I would, needless to say, be happy----
    Chairman Leahy. I saw the look on Senator Blumenthal's 
face, and I realized just as I said that.
    Senator Blumenthal, go ahead.
    Senator Blumenthal. Well, I am sure that Senator Franken's 
questions would be much more enlightening than mine, but I 
appreciate his deferring.
    First of all, let me begin, Madam Secretary, by thanking 
you for your extraordinary service to our Nation and to the 
State of Arizona as a Federal official, as United States 
Attorney and then as Attorney General, and now in your present 
position. And let me ask you, since we are here to talk about 
the readiness and oversight of your Department, what would be 
the impact of a Government shutdown on the Department of 
Homeland Security?
    Secretary Napolitano. Well, our Department, since we did 
not exist in 1995 when the last shutdown occurred, we have 
actually had to go and develop a plan for that. We would have 
some aspects of the Department that would shut down totally. 
The operational aspects that people see--the TSA officers, the 
Border Patrol officers, the port officers--they would continue, 
but all of the back-room work that is necessary to support and 
maximize their efforts would probably also have to shut down.
    So I think that it would be a very destructive event should 
it occur. I know that and hope that both sides are working to 
avoid it.
    Senator Blumenthal. And fair to say you would do everything 
possible, you would hope we would do everything possible to 
avoid a shutdown.
    Secretary Napolitano. Yes, absolutely.
    Senator Blumenthal. Going to the issue of immigration 
reform, you have spoken very compellingly about the 
architecture of security enforcement involving State and local 
police. Do you foresee greater authority, which probably would 
require greater training for local and State police, in the 
enforcement of our immigration laws?
    Secretary Napolitano. We actually think that greater 
authority in that sense is not needed, nor particularly 
desirable. Immigration fundamentally is a Federal 
responsibility with some partnerships with State and locals in 
the enforcement arena. The most successful of those we call 
Secure Communities, which is an agreement between DHS and the 
Department of Justice where, when somebody is arrested and 
booked, their fingerprints are run not just through the DOJ 
criminal databases, but through the immigration databases as 
well. So that after an individual has served their time, they 
go immediately from whatever State system there is or local 
system right into removal proceedings.
    Senator Blumenthal. So the direction you would foresee is 
providing greater resources at the Federal level, maybe even 
greater authority to enable local enforcement to be a partner, 
but not take more authority from the Federal Government.
    Secretary Napolitano. That is right, and the Federal 
Government always needs to retain the authority to enter into 
the partnership and to describe the parameters of the 
partnership.
    Senator Blumenthal. Thank you.
    Going to a different subject. As you know, this past winter 
has been really pretty brutal in many parts of the country.
    Secretary Napolitano. Indeed.
    Senator Blumenthal. And a number of them have applied for 
emergency disaster relief, including Connecticut, and I know 
that many of us in the Congress have in mind those applications 
and measures that can be taken to expedite them. So I would ask 
you whether there are steps being taken to expedite those 
applications for relief, in particular the applications from 
Connecticut for two of our counties. We thank you for approving 
many of our counties, but in particular two, Windham and 
Middlesex, still have not been approved.
    So I wonder if you could comment on when you foresee other 
decisions being made with respect to them and perhaps other 
areas of the country that have similarly made application.
    Secretary Napolitano. Senator, I think we have been 
actually moving those emergency declarations through very, very 
rapidly. Sometimes a jurisdiction when it applies, they do not 
meet the criteria, and it may be that our FEMA regional 
individuals, at that time they will work with the local 
officials and say, ``Go back and look at X, Y, and Z because 
right now you do not satisfy the criteria.'' That could cause 
some delay.
    But my understanding is that with respect to Connecticut 
and basically all of the Northeast snow-impacted States and 
counties and towns and so forth, that those applications have 
been moving very rapidly.
    Senator Blumenthal. Thank you. And perhaps I could pursue a 
number of these areas with you or your staff after this 
session. I know even Vermont may have an application, judging 
by the snow that it received over the weekend.
    Secretary Napolitano. We have had quite a few.
    Senator Blumenthal. Well, thank you very much.
    Secretary Napolitano. Thank you, Senator.
    Chairman Leahy. Thank you.
    Senator Graham.
    Senator Graham. Thank you, Mr. Chairman.
    Thank you, Madam Secretary. I appreciate your service to 
the country at a very important time and a tough job. You have 
got a big portfolio.
    I just got back from Laredo, Texas, just, I guess, last 
week. It was a fascinating trip. I understand from the local 
community--Senator Cornyn's people were incredibly helpful--
that the points of entry, the crossings in from Mexico to 
Texas, that a lot of technology is 30, 40 years old, and the 
point of entries should, in my view, be considered part of 
border security. And I am going to ask the Chairman that we 
have a hearing about upgrading our points of entry.
    What is your view of the status of points of entry and how 
efficient they are in Texas?
    Secretary Napolitano. Thank you, Senator. Laredo actually 
is one of our largest land ports along either border. And a lot 
of truck traffic has to go through there as well as vehicle 
traffic.
    They have been, and we are, as quickly as the Congress 
approves it, replacing and updating technologies--VACIS 
machines, mobile backscatters, handheld devices, K-9 teams, and 
coupled with additions for port of entry officers, who are the 
people who actually have to manage the port.
    So we would be happy to brief you off-line or--I do not 
know about a hearing, but we would be happy to brief you off-
line.
    Senator Graham. Well, I think it would be good to have the 
people from the community to come up and talk. Senator Cornyn 
has done a very good job. I am on his bill.
    One of the things I learned, too, is that, you know, the 
border really goes right through towns, and there is a way to 
secure our side of the border without having a fence for the 
whole 2,200 miles, if you listen to the local community. And I 
would like to maybe talk with you at a later time about 
security in population areas where the river basically cuts 
through two towns and making it more secure, but at the same 
time not killing commerce. I think you can do both.
    Generally speaking, from 2007 to now, how would you 
evaluate the security situation in Mexico? Has it gotten worse 
or better?
    Secretary Napolitano. I would say, first of all, I think 
that we all have to appreciate what President Calderon is 
trying to do in Mexico. This is tough, tough work. These 
cartels have existed for a long time, and they are entrenched 
and they are large and they are powerful. He has put much of 
his country's resources into this battle. We are providing any 
assistance we can, and we will continue to do that.
    That being said, I think it fair to say that at least in 
several of the states of Mexico--and I would suggest Chihuahua, 
Tamaulipas, Nuevo Leon, and perhaps even now Sonora--that the 
trend line has not gone in the right direction.
    Senator Graham. Yes, I think that is a fair statement. From 
listening to border communities people on our side, they used 
to routinely go across to meet their Mexican neighbors, go 
hunting. There are people who have been doing this all their 
life who have stopped that activity in the last 4 or 5 years 
because they are, quite frankly, afraid. So I think the 
observation is pretty clear to me that the trend lines are 
going in the wrong way.
    Has there been any suggestions of joint operations with 
Mexico to go after some of these violent gangs?
    Secretary Napolitano. There are joint operations that are 
underway at the request of Mexico, and there are a number of 
agreements and things that we are doing with Mexico at the 
Federal level particularly focused on the cartels.
    Senator Graham. Well, I think border security is more 
important than ever because the violence has increased, but I 
think, you know, being flexible in how to do it makes sense.
    Now, about Guantanamo Bay, that is back in the news again. 
If someone were captured tomorrow in Yemen or Somalia, a high-
value al Qaeda target were captured by U.S. forces, what would 
we do with that person?
    Secretary Napolitano. Well, I assume if they are on the 
field of battle, they would be held by DOD.
    Senator Graham. Where would they hold them?
    Secretary Napolitano. I do not know the answer to that 
question.
    Senator Graham. Okay. I think the facts are that we do not 
have a jail. I am not blaming anybody. That is just a fact. If 
you caught someone tomorrow in Yemen or Somalia, they are not 
going to go to Bagram Air Base. The Afghan Government is not 
going to allow that. We are not sending people to Gitmo. So we 
are in a situation where we have no jail for future captures, 
so we are either killing them rather than capturing them, or 
you wind up renditioning them. And that is exactly what we are 
doing.
    Would you support transferring a Guantanamo Bay detainee to 
the countries of Yemen, Somalia, or Pakistan? Do you think that 
would be a wise, safe move to repatriate a Guantanamo Bay 
detainee to those three countries?
    Secretary Napolitano. Senator, I think that the issue of 
the Gitmo detainees has to be evaluated on a case-by-case 
basis, so I think that is the way you have to look at it. Each 
person there has a different file and a different set of facts.
    Senator Graham. You would be willing to send somebody to 
Yemen?
    Secretary Napolitano. Senator, it depends on what that 
person is and what that person allegedly has done.
    Senator Graham. Do you think Yemen is safe to--they will 
not go back to the fight if they go to Yemen?
    Secretary Napolitano. I think there are legitimate concerns 
with Yemen. But, again, I think that that is up to the 
Department of Justice and an evaluation of each of the facts of 
each detainee.
    Senator Graham. Thank you for your service.
    Senator Whitehouse [presiding.] Senator Schumer.
    Senator Schumer. I would also like to thank you for your 
service, Madam Secretary.
    My question is first on the northern border and the radar 
system there. On December 17, 2010, the GAO issued a report on 
the state of security on the northern border, in which it 
indicated that, ``The northern air border is vulnerable to low-
flying aircraft that, for example, smuggle drugs by entering 
U.S. airspace from Canada.''
    A month ago, I along with many of my colleagues from 
northern border States sent you a letter, asking DHS to use 
military-grade radar along the northern border to detect low-
flying planes. This technology was successfully used, as you 
know, in Washington State during Operation Outlook in 2008. 
Does the Department plan on using this radar, and will the 
radar be deployed on the northern border in short order to deal 
with the drug smuggling, which has a rapid increase in my State 
and many others?
    Secretary Napolitano. Senator, we are working with DOD and 
with NORTHCOM on radar and other related issues and 
technologies in efforts on the northern border.
    Senator Schumer. How soon can we expect--can we expect to 
get it at some point?
    Secretary Napolitano. Senator, I would prefer to answer 
some of those questions off-line, but I will simply state for 
open hearing purposes that this is moving very rapidly.
    Senator Schumer. Good. And it is a good idea.
    Secretary Napolitano. Yes.
    Senator Schumer. Thank you.
    Next, FEMA flood maps, going from one to the other. This is 
an issue of real importance in my State.
    Secretary Napolitano. Right. Many States, yes.
    Senator Schumer. Yes, FEMA has been updating the flood 
maps. They are placing thousands of Long Island homeowners in 
high-cost insurance zones. It raises the cost of their living 
up to $3,000 a year.
    These are average middle-class people. They have not had a 
flood ever in their area. Some live as far as 5 miles from the 
water, and they are getting socked with these increases. It is 
amazing.
    And what we found out--and FEMA admits this--they get 
information gathered in Suffolk County to draft Nassau County's 
flood maps. FEMA rejected requests to conduct a Nassau-specific 
study, even though Nassau's geography should have been subject 
to a separate study.
    Madam Secretary, the Army Corps district commander advised 
me yesterday that the Corps, who does the basic studies, was 
not consulted when FEMA mapped Nassau County. The commander 
went so far to say that FEMA should have used Nassau-specific 
Army Corps data.
    It is shocking news, particularly given that FEMA was 
mapping not some rural area that had a few people on it, but a 
densely populated area. There are 25,000 people new to the 
flood zone who want to know if the Government used the most 
appropriate data when mapping their community. I have requested 
an IG investigation to get to the bottom of this.
    My question to you is: Will you help me fix these maps if 
the investigation shows that we should start over? Would you be 
willing to work with the Army Corps, who is very willing to 
work FEMA to get this right, to develop a Nassau-specific storm 
surge model so Nassau can be mapped accurately? This is not a 
little area. Nassau County, as you know, has 1.5 million 
people.
    Senator Grassley. We have got exactly the same problem in 
Iowa, so I await your answer.
    Senator Schumer. Both Chucks have the same question.
    [Laughter.]
    Secretary Napolitano. I am delighted to receive a 
bipartisan inquiry from the Committee.
    Senator, if the facts are as you state them with respect to 
Nassau County, I do not think I need to wait for an IG 
inspection. I will go back and ask FEMA right now what 
happened, why they did not use Nassau-specific maps, and if 
there are better maps and better data available. They should be 
using the best data available.
    With respect to Iowa and to other States, I confronted this 
when I was Governor of Arizona, and they put some cities and 
towns into the floodplain. We are working with communities, 
towns, and counties, saying, ``Look, if you have better data, 
we will review it.''
    Senator Schumer. They might in Nassau have to do a survey 
for Nassau. They did not have the survey. It would not cost 
that much. But they took Suffolk's data instead, even though 
the Army Corps, we were told, told them do not.
    Secretary Napolitano. I do not know whether that is true or 
false, but what I can say is, look, if there is better data to 
use, we should use it.
    Senator Schumer. Right. Thanks. Finally--well, I am over 
my--no, I have a little time left. This is on southern border 
security, something we have talked about a great deal. I hope 
to take a trip with you soon--my colleagues, I know Senator 
Graham is interested in that--so we can see with our own eyes. 
Even though there is still work to be done, the border is much 
more secure than when you became Secretary. You are familiar 
with this very intimately, as former Governor of Arizona, and 
we passed, as you know--this helped--the $600 million 
appropriation bill last August.
    But, unfortunately, the long-term continuing resolution 
passed in the House, the 7-month, cuts border security 
infrastructure and, much worse, Border Patrol agents at a time 
when violence from Mexico is at an unprecedented level and when 
a growing economy is likely to produce more desire by 
individuals to illegally immigrate to the U.S. Senator Kyl, who 
graciously cosponsored the bill on border security last year, 
along with Senator McCain, has also recently criticized these 
cuts.
    Can you unequivocally say today to my colleagues that if we 
pass the House's proposed 2011 continuing resolution our border 
will be less secure than it is today and we will be going 
backward instead of forward?
    Secretary Napolitano. Yes. It is a bad border bill on the 
House side. And I think even Representative King, who is the 
Chair of the House Homeland Security Committee, said that last 
week when we had our appropriations hearing. So we would hope, 
as the budgets move forward and these negotiations move 
forward, that the numbers in that part of the House resolution 
not be accepted.
    Senator Schumer. Thank you, Madam Secretary.
    Senator Whitehouse. All right. Just to recap where we are, 
Senator Coons is next, then Senator Klobuchar, then myself, 
unless and until Senator Durbin returns, in which case he jumps 
ahead. And I think all of the Republican Senators have been 
heard, so from now on out it is just us, Madam Secretary.
    Senator Coons.
    Senator Coons. Thank you, Senator Whitehouse.
    Madam Secretary, great to see you again. Thank you for your 
service and the early predictor that service as a Truman 
Scholar can lead to later success in life. I thank you for your 
service, both in Arizona, and leading a very complex and 
critical agency at this time.
    Just to follow up on some of the questions raised in the 
previous colloquy, I, too, as a former county executive saw a 
great deal of challenges with FEMA maps. And I am coming from a 
meeting with Delaware's counties who raised that same question 
with me. Kent and Sussex in particular have some concerns about 
FEMA floodplain mapping, so allow me to simply pile onto the 
concerns raised by the other two.
    We also in Delaware happen to have a manufacturing company 
whose product I got to see in place in Afghanistan that makes a 
tethered balloon product that is designed to deliver down-
looking radar that is used in border security very successfully 
in the field in Afghanistan, and I believe is being considered 
for some use northern and southern border, and I would just 
recommend them to you.
    This is a bad border bill, H.R. 1. I think it is a also a 
bad port security bill, and I would be interested in your 
comments. Your Department has done a great deal of work in 
delivering port security funding and in making our ports safer 
in a particularly challenging global environment at a 
particularly difficult time. Would you comment on what sort of 
impact the cuts in H.R. 1 might have on the path forward for 
port security?
    Secretary Napolitano. Well, one particular impact would be 
a dramatic reduction in port security grants, which are used, 
as you know, Senator, for a lot of the on-the-ground efforts to 
secure port infrastructure.
    Senator Coons. Yes. And the Delaware Bay actually has a 
great deal of traffic through it that goes up to New Jersey, to 
Pennsylvania, as well as to my home State of Delaware. There is 
about $14 million worth of port security funds that have been 
allocated since 2008 but have not yet been spent because of the 
local match requirement, and the fiscal condition of some of 
our municipalities and State and local governments is 
preventing that.
    Any input for me about the path forward on addressing or 
resolving this with funds that have already been allocated but 
have not yet been spent?
    Secretary Napolitano. It is a difficult area because we do 
have some discretion to waive the 25 percent--I think port 
security is a 25-percent match grant. I would be happy to 
explore that particular aspect of it and get back to you after 
this hearing.
    Senator Coons. That would be great. I would appreciate it, 
in particular whether in-kind contributions of resources might 
be eligible to count toward that.
    I was particularly interested in the conversation that was 
going on before about immigration. There are other ways that 
immigration I think positively contributes to job creation and 
to growth in this country. And there has been some back and 
forth on the H1-B visa program and the EB-5 investor visa 
program. As a former in-house counsel for a high-tech company, 
one of our challenges often was finding sufficiently trained 
folks in the United States at the very highest levels of 
technology.
    How effectively are we using H1-B visas? What challenges 
are there? How can we strengthen enforcement, particularly with 
the EB-5, so that there is not fraud? And how can you help us 
assess their positive contributions to the American economy?
    Secretary Napolitano. Well, Chairman Leahy has mentioned 
EB-5 to me several times as a job creation device. We have 
actually increased the number of EB-5 visas over the last 
several years. We want to prevent fraud and abuse in these 
programs, and that is a concern. We have created a fraud unit 
within CIS, and we also have done a number of things.
    For example, we have increased the number of spot onsite 
inspections of companies, of employers, who say they are 
putting to work people to do certain things. We are doing a lot 
more by way of follow-up with employers and really more 
oversight of the visa recipients after the visa recipients go 
to work. So both on the EB-5, we are trying to increase it, but 
on the H1-B we want to make sure we use it as a country. We 
need it as a country. But we need to make sure that it is free 
of fraud and abuse.
    Senator Coons. Absolutely. Thank you for your hard work in 
that field.
    And last, if you have got a moment, there was a GAO report 
on high-risk areas that focused on cyber terrorism. Cyber 
terrorism and access to cyber attack is something that the 
financial services community in Delaware has a lot of 
experience in and is fairly strong in. The National Guard 
actually nationally is standing up units that are specifically 
dedicated to fighting cyber terrorism that are a great 
resource.
    I am wondering what plans you have, what the path forward 
is for your department to strengthen and collaborate and 
partner with folks in our private sector and our defense 
communities around being prepared to deal with cyber terrorism?
    Secretary Napolitano. Senator, we have an entire 
directorate within the Department that is on cyber. We have 
done a lot of work on that in the last 2 years. It is probably 
our fastest growing area, aside from the southwest border 
security area. And we have received permission from the Office 
of Personal Management to do direct hire of 1,000 more cyber 
security experts. We have opened the National Cyber Security 
Center in Virginia. We have entered into an agreement with the 
Department of Defense so that we can have people at the NSA 
helping us with work and use the technology experts at the NSA, 
with lawyers and privacy individuals right there so that we do 
not cross the line. I am very careful about that. And we are 
working with the private sector, financial institutions being 
key among them, on the things they need to do to protect their 
own systems and networks.
    Finally, we have been growing US-CERT, which is the 
response team, and their efforts to be able when an intrusion 
is detected or something, a virus, or something of that sort, 
that they can immediately connect with critical infrastructure 
in the country, which would include the financial services 
sector.
    Senator Coons. Well, thank you. And, Madam Secretary, thank 
you for your diligent and disciplined service to our country. I 
see my time has expired.
    Senator Whitehouse. Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman.
    Thank you, Madam Secretary, for coming. I am going to take 
you from the southern border to the northern border. And as you 
know, on the northern border of our country is Fargo-Moorhead, 
the scene of some floods in the past.
    Secretary Napolitano. The Red River.
    Senator Klobuchar. The Red River, that is good. We like 
that you know that.
    I wanted to thank you again for your help in the past for 
you personally getting involved when we had that close call in 
2009. And just to let you know that there is a lot of concerns 
right now. FEMA has been working with us, but we are looking at 
a 35-percent chance now that the flood level could exceed what 
it did in 2009.
    Secretary Napolitano. Senator, thank you. And, yes, in 
fact, with the amount of snowfall we have had this year, we 
expect some severe spring flooding. FEMA is already leaning 
forward into it before a flooding occurs, working with locales, 
making sure that equipment and so forth are pre-deployed so 
that we can respond as quickly as possible.
    Senator Klobuchar. Yes, thank you very much.
    And then I had two other issues that I am going to put in 
writing because I do not really expect you to answer them right 
now. One is about our town of Owatonna, Minnesota, problems or 
issues with the FEMA hazard mitigation grant program. It is in 
southern Minnesota. The city has been working with my office, 
Congressman Walz's office, to work through some red tape to 
access discretionary funds. And they have been having some 
issues on removing hazards that contribute to flooding.
    The second is Browns Valley, Minnesota, which is an even 
smaller town. It is on the South Dakota border. This is 
incredibly complicated. They are caught in a jurisdictional 
fight between the States and two FEMA regions. South Dakota is 
in FEMA Region VIII, Minnesota is in FEMA Region V. And so they 
are having some issues with funding there.
    Secretary Napolitano. Yes, that is right.
    Senator Klobuchar. And so I am going to put this in 
writing, and I will not call you out on any answer right now 
about Browns Valley.
    Secretary Napolitano. I appreciate that consideration, but 
I will tell you, as soon as we get your request, we will work 
with it as fast as we can.
    Senator Klobuchar. OK, very good. Thank you very much.
    Second, as you know, I have worked very hard in the area of 
international adoptions, and with the help of your department 
and the help of Senator Sessions and Senator Inhofe, we were 
able to pass a really ground-breaking bill last year that 
solved some of the issues with the inter-country adoptions and 
made it so that; one, kids could get immunized here--there was 
a lot of concern about that--and second, that orphans who were 
between the ages of 16 and 18 who are overseas can be adopted 
if a younger sibling is adopted. And so we have been working 
with your Department to try to get this bill implemented.
    We have, for instance, one family, the Macoruses, who are 
adopting nine siblings from the Philippines--one family who had 
been orphaned when their mom died, and the older kids have held 
this family together, and they want to bring them all home 
together, not just the young kids that are younger than 16.
    And so that is just a real example of how we need to get 
this bill implemented through the embassies and our agencies so 
we can get this done. And I just urge you to move on that as 
soon as possible.
    Secretary Napolitano. I believe, Senator, actually--and 
this was not done because of this hearing, but there is a 
meeting this afternoon on that very subject at our Department. 
So thank you.
    Senator Klobuchar. Okay. Just picture the nine children. We 
are trying to get them over.
    The last thing I wanted to raise was that I saw in mid-
February that DOJ and DHS announced the execution of seizure 
warrants against 10 domain names of websites engaged in the 
advertisement and distribution of child pornography as part of 
Operation Protect Our Children, which is a joint operation 
between DOJ and DHS to target sites that provide pornography.
    When I looked at this as a former prosecutor--I know you 
used to do that job, too, and I am not sure that people realize 
that DHS through ICE, that your agency plays a role in 
protecting kids from exploitations over the Internet.
    Do you want to talk about that work that is being done?
    Secretary Napolitano. Well, ICE is doing a terrific amount 
of work in this area to protect children from exploitation in 
the pornography area and also in the human-trafficking area--a 
real problem globally, a problem in our country. We have 
special units that are assigned to this. We have some new 
technology that we are using.
    Actually the Secret Service has some state-of-the-art 
technology that they are using, and we are working with the 
organization the Center for Missing and Exploited Children. 
That is, I think, located actually in Virginia in the suburbs.
    So we have a lot of work ongoing in this area, and because 
we have international reach, we are able to do a lot of 
different things, and we intend to, if anything, expand those 
efforts.
    I might add, however, that if the House budget, H.R. 1, 
becomes basically the budget for 2012--in other words, we 
finish 2011 with that and it rolls into and becomes the budget 
for 2012--some of those efforts will have to be cut back, 
particularly on the Secret Service side.
    Senator Klobuchar. I understand that you were talking 
earlier with Senator Leahy and Senator Coons about this and 
that it could result in, just on the first responder side if 
you look at H.R. 1, a $1 billion cut to State and local first 
responders. Could you just elaborate on that?
    Secretary Napolitano. I will be very short. Yes, H.R. 1 
cuts State and local grants by a large amount; it is about $1 
billion.
    Senator Klobuchar. Okay. Thank you very much.
    Senator Whitehouse. Madam Secretary.
    Secretary Napolitano. Senator.
    Senator Whitehouse. I would like to follow up a little bit 
on cybersecurity. I assume you are familiar with the status of 
the interagency process that is taking place within the 
executive branch?
    Secretary Napolitano. Yes, and we are participating in it.
    Senator Whitehouse. Can you give us any information on when 
it might draw to a conclusion? The Commerce Committee has 
pretty much completed, I think, its work on its bill. Homeland 
Security has completed its work on its bill. Intel, which I was 
on through all of this, has been looking at this very 
carefully, and on Judiciary we will be looking at it as well.
    If we are going to proceed legislatively, we need input 
from the executive branch in order to sort out the differences 
between the different committees. There is no point sorting it 
out if we do not know where the executive branch is going to 
stand.
    As I understand it, the interagency process has lasted more 
than a year already, during which we have been basically cut 
out of discussions between the executive and legislative 
branches. So in the legislative branch, we are now probably a 
year into a stall on preparing the legislation that I think we 
urgently need in order to protect our country from cyber 
attack. I do not think it is purely an executive administrative 
function and that shuffling things around within the executive 
branch under existing authorities is adequate.
    So the time that it has taken to get through the 
interagency process I think creates a real risk for the country 
because I think we are not going to be really secure until we 
can get some legislation passed. And, frankly, it would have to 
be good legislation to boot.
    So if you could let me know when you think this interagency 
process might come to an end so that we can get to work with 
you on joint bipartisan legislation that moves this process 
forward. At the moment I think the ball is in your court, and 
it just has stayed there quite a while.
    Secretary Napolitano. Well, I think it is in the 
interagency process, if I might be precise, and what I will do, 
Senator----
    Senator Whitehouse. By ``you,'' I was referring to the 
executive branch generally. I apologize for loading the entire 
executive branch onto you.
    Secretary Napolitano. That being said, I think your 
communication of urgency is very clear. We have been moving 
forward without that, but I think, you know, cyberspace and the 
authorities and jurisdictions that govern cyberspace and our 
ability to protect our networks is key and so very, very 
important, and so what I will do, Senator, is----
    Senator Whitehouse. But when will it end?
    Secretary Napolitano. So what I will do is communicate your 
concern to the White House and get an answer to you.
    Senator Whitehouse. Based on your familiarity with the 
process so far, just from your observation of it, do you think 
we are anywhere near an end to it? Are you seeing--you know, I 
have done interagency stuff at different levels before, and you 
kind of know when you are getting near the end and you kind of 
know when you are not near the end. From your vantage, what do 
you see in terms of the proximity of a resolution to the 
interagency process?
    Secretary Napolitano. Well, I hope that we are near the 
end, in part because I know both the Homeland Security 
Committee and the Commerce Committee are drafting legislation.
    Senator Whitehouse. Well, they drafted it actually, I 
think, a year ago.
    Secretary Napolitano. Well, yes.
    Senator Whitehouse. We are kind of on hold now waiting.
    Secretary Napolitano. Senator, all I can say is let me find 
out. I just do not know the answer to that question.
    Senator Whitehouse. So as far as you know, we are at least 
not close to the conclusion of that interagency process?
    Secretary Napolitano. I did not say that. I said I did not 
know the answer. So let me check and get back to you.
    Senator Whitehouse. But since you are involved in it, 
presumably you have some visibility into it, and all I am 
trying to get--I mean, you are the Secretary of Homeland 
Security. That is the central agency for cybersecurity other 
than NSA, which provides the technical horses to everybody. You 
have got to have a sense of how close this is. When you say you 
are going to get me an answer from the White House, I 
appreciate that and I would love to have an answer from the 
White House. But I would also like your sense of when this is 
going to come to an end because you have to be involved in this 
and have some familiarity with it.
    Secretary Napolitano. Senator, I think it is fairly close, 
but I hesitate to give you a deadline because I do not know 
that there is one. But we share the sense of urgency.
    Senator Whitehouse. Okay. Do you share the belief that 
there are, in fact, legislative changes that are necessary in 
order to adequately protect the country from this threat?
    Secretary Napolitano. Senator, I think that that clarity in 
terms of authorities and jurisdiction in this new and 
developing area is--clarity always facilitates operations, and 
we are on the operational side in terms of the actual 
protection aspect of our civilian networks. And so if we can 
work with the Senate and get to a bill that clarifies 
authorities and jurisdictions, I think that would be very 
helpful.
    Senator Whitehouse. It would take legislation, for 
instance, to establish a secure domain for critical 
infrastructure, would it not?
    Secretary Napolitano. It would.
    Senator Whitehouse. Okay. My time has expired.
    I know that the Ranking Member and I assume the 
distinguished Senator from Arizona both are interested in a 
second round because they have been faithful and patient about 
staying through, so we will go on to that second round. And 
instead of going back and forth, since I am here for the 
duration, we will go directly from the Ranking Member to 
Senator Kyl, and then if I have anything further I can wrap up.
    Senator Grassley. Just three things I want to discuss: one 
would be one little follow-up on Terry; No. 2, the Farooque 
case; and then, No. 3, about the amnesty memos.
    According to CBP agents who spoke to the Terry family, the 
standing order to use non-lethal force first was reportedly 
given by former Tucson sector chief and the order was not 
withdrawn when the chief was transferred to El Paso. Are you 
aware of any other sector chiefs who have given similar orders?
    Secretary Napolitano. Senator, as I have said, I have 
inquired. I have been informed that the standard policy, the 
training, and the practice in the Border Patrol in use of force 
is as I have stated earlier.
    Senator Grassley. Okay. On November 3rd last year, I wrote 
to you requesting information on Farooque Ahmed, I guess it is 
pronounced, a naturalized citizen who was arrested by the FBI 
for planning terrorist attacks in the Washington, DC, subway. 
Three months later, one of your Assistant Secretaries 
responded, ``Unfortunately, the Department is legally 
prohibited from disclosing the information you requested.'' The 
Department claimed that the Privacy Act prohibits the 
disclosure of information unless there is a formal request from 
a Chairperson.
    Instead of asking about 10 questions, I want to make some 
statements and ask one question. The Privacy Act contains an 
express exemption for Members of Congress. The exemption states 
that disclosures are exempt from the Privacy Act if they are 
made to ``a Committee or subcommittee.'' So I do not think the 
Privacy Act says anything about needing the request from a 
Chairman. There is case law directly on point, holding that a 
disclosure to a Member of Congress in his or her official 
capacity falls ``squarely within the ambit of the exemption.''
    So my question is in regard to your Assistant Secretary 
saying that the Privacy Act would not allow us to get the 
information requested, and giving you the background that I 
know about the Privacy Act and in a sense the denial of ours, 
it was saying in a sense go get your information under the 
Freedom of Information Act: Do you believe that the Privacy Act 
should be used to withhold important information from Congress 
regarding an alleged terrorist?
    Secretary Napolitano. Senator, I believe we are bound by 
the law. And I believe we must have a disagreement because we 
have Department of Justice guidance that the Privacy Act 
applies to the Chairman only in terms of the exemption that you 
described and not to all Members of Congress. So I think we 
just have a plain disagreement, and we have abided by DOJ's 
advice.
    Senator Grassley. Well, it is impossible under--it is even 
impossible under average citizens Freedom of Information. It is 
a terribly complicated process to get information. But we have 
Divine v. United States that the Justice Department is ignoring 
the case law as far as Divine v. United States is concerned.
    But you know what, it makes it practically impossible for 
Congress to do its oversight work, and I know when I had 
discussions with you prior to your confirmation, we got all 
these promises--not just from you, but from everybody that 
comes before us that they are going to cooperate on Congress' 
constitutional responsibility of oversight. And this just makes 
it impossible and how ludicrous it is for us not to know about 
something about how a person got into this country, got 
naturalized, and then he is going to turn against the very 
country that he becomes a citizen of and wants to blow up or 
kill everybody in the subways in the United States. It just is 
not reasonable.
    Let me go on to another, this amnesty memo, because I am 
holding up my colleagues. You are fully aware of the internal 
documents that surfaced last August that outlined the 
administrative option to keep undocumented aliens from being 
removed from the United States. Since then this administration 
has ignored repeated requests to answer questions about this 
memo, and so I hope to get some answers today from you, and I 
have three of them.
    Who directed the four officials at the U.S. Citizenship and 
Immigration Service to write the internal amnesty memo that my 
office obtained last year?
    Secretary Napolitano. Senator, first of all, on the Privacy 
Act issue, let me if I might, your question No. 2. We will be 
happy to look at the case. We will be happy to look at the 
exemption. In terms of oversight, if there is anybody that has 
oversight, it is the Department of Homeland Security.
    In the 111th Congress, we provided over 3,000 briefings to 
the Congress. We provided over 250 testimonies at hearings, 140 
from leadership. I think I testified myself over 20 times. We 
get the most FOIA requests of any department by far. So we have 
a lot of oversight. I think over 100 committees and 
subcommittees of the Congress have oversight of the Department 
of Homeland Security.
    And one of our asks--and the reason I make this point--of 
the Congress is that when it created the Department, it did not 
similarly reorganize its own oversight structure to match the 
Department of Homeland Security. And one of the 
recommendations, Senator, of the 9/11 Commission and virtually 
the only one on which no movement has been made is an effort by 
the Congress to try to streamline our oversight because it 
takes a huge amount of manpower.
    Now, with respect to the memo, question three, to which you 
referred, I am unaware that it was directed by anyone. And I 
will tell you that in the Department people come up with ideas. 
And that is not a bad thing for people to be thinking. They may 
be ideas that are bad. They may be ideas that are unworkable. 
They may be ideas that have no force other than employees 
thinking about their area of expertise.
    But as our process works through it gets ultimately up to 
the Assistant Secretary, Under Secretary, Deputy Secretary, and 
myself. Those ideas get winnowed down. So the memos to which 
you refer--and I think we have been very, very clear about 
this--have never been acted upon, were never accepted, and are 
not the policy or practice of the Department.
    Senator Grassley. Well, I have a draft copy of a memo. By 
the way, it appears to me to be quite complicated, and a lot of 
effort went into it and not a lot of people that knew what they 
were doing. So it is just not somebody out there looking for 
some idea to bring some idea forth through a memo. But I have a 
draft copy of the memo written February 26, 2010, that was 
intended for you, Madam Secretary.
    Did you at any time since you became Secretary review memos 
or proposals that describe administrative options such as 
deferred action or parole to get around Congress' inaction on 
the immigration reform bill? And some of these memos--or this 
memo referred to efforts that we are not getting anything done 
on immigration in the Congress, so maybe we ought to take some 
action through the executive branch.
    Secretary Napolitano. Well, I can understand the Senator's 
concern there. All I can say is, Senator, we have been very 
clear. We are not going to give deferred action to large groups 
as opposed to on a case-by-case basis, which is what I believe 
the statute permits.
    However, I will say that the President is very committed 
and asks again for the Congress on a bipartisan level to take 
up the overall issue of immigration, because even some of the 
questions that were asked of me today about visas for dairy 
farmers and what we do with H1-B and how do we handle this and 
how do we handle that, as a Department we are enforcing the law 
as it currently exists. We took an oath to do so. We are doing 
that. However, we think that law--and I think there is a lot of 
agreement by different aspects, the business community, others 
who think the law needs to be revised.
    Senator Grassley. Well, I think that you do correctly state 
that the law does allow on a case-by-case basis, but the 
impression you get from these memos that we receive is that 
Congress was not acting, we need to do something to make a 
massive amount of people that came here illegally to make them 
legal. And that gets way beyond a case-by-case basis if you are 
talking about, you know, I do not know how many people, but it 
sounds to me like thousands of people.
    Let me ask the last point. Would you commit to providing me 
by the end of this week with statistics that we have asked for 
about the number of deferred actions and paroles granted since 
you became secretary?
    Secretary Napolitano. Well, I think if I might, let me--I 
have some. As you say, we can do deferred action on a case-by-
case basis. The law permits that, and it is usually for 
compelling humanitarian concerns, and those are done.
    Now, in fiscal year 2010, we removed over 395,000 aliens. 
We exercised deferred action in fewer than 900 cases, which was 
actually fewer deferred actions than were granted in the years 
prior to that. So I will be happy to put that in writing for 
you, Senator, but those are the fiscal year 2010 numbers.
    Senator Grassley. That was deferred actions. Does that also 
include what we call paroles? And I assume deferred actions and 
paroles are different. And I am done.
    Secretary Napolitano. My understanding is it does not 
include the paroles. We will provide that for you.
    Senator Grassley. Thank you.
    [The information appears unsder questions and answers.]
    Secretary Napolitano. If I might, I am sorry, Senator. I 
left out one category for which we grant deferred actions. It 
is humanitarian, but the vast majority of these will be 
requests by law enforcement to defer action on individuals who 
are witnesses and are needed for prosecution.
    Senator Grassley. One last commentary to something you said 
5 minutes ago about all the oversight you have. And I do not 
doubt that you do, and it is probably very complicated for you. 
But it should not have taken 3 months or more to get a one-line 
statement that you cannot answer us because of the Privacy Act.
    Thank you, Mr. Chairman.
    Senator Whitehouse. Thank you, Senator Grassley.
    Senator Kyl.
    Senator Kyl. Thank you very much. I want to go back to two 
things. Obviously, you and Senator Cornyn and GAO have somewhat 
different definitions of operational control. I want to get 
away from the semantics about operational control on the 
southwest border. Let me just ask you three questions. I think 
we are in total agreement on these.
    Would you agree that not enough of the border is under 
enough control?
    Secretary Napolitano. I would agree. And I would put it 
this way, that there are more efforts at this border than ever 
before in our history. And we are going to continue and we hope 
grow those efforts.
    Senator Kyl. Because not enough of the border is under 
enough control.
    Secretary Napolitano. Well, we want to sustain the control 
that we have.
    Senator Kyl. No, we want to increase the control we have 
until we have total control as much we can possibly get. 
Wouldn't that be the goal?
    Secretary Napolitano. I think so. I think that is a fair--
--
    Senator Kyl. All right.
    Secretary Napolitano. Senator, but let me----
    Senator Kyl. I do not want to get into semantics. I am just 
trying to look----
    Secretary Napolitano. I hope not because one person's 
control is another person's actually sealing the border. And as 
we know, that is not possible.
    Senator Kyl. Control is a subjective phrase. And that is 
why I just tried to state it in a general proposition. We need 
to do more than we are doing. We need to get it better than we 
have it today. That is all I am trying to establish. Agreed?
    Secretary Napolitano. What you are--Okay. Yes.
    Senator Kyl. Okay. I guess another way I was going to say 
this, we have got about a quarter of a million apprehensions, 
which is a reflection depending upon how many other people come 
across illegally that are not apprehended, but it is a general 
indication of the degree of the problem. And so that would 
indicate that it is too many and we have a ways to go. That 
would be another way of putting it.
    Secretary Napolitano. Well, and as you and I have 
discussed, my No. 1 priority is the Tucson sector.
    Senator Kyl. Right. I am sorry. That is what I was talking 
about.
    Secretary Napolitano. I think so. That was the number to 
which you referred. And absolutely, and we are pouring 
resources into that sector.
    Senator Kyl. And then that was the final point. And 
adequate resources are a part of the answer to this.
    Secretary Napolitano. Absolutely.
    Senator Kyl. Other things that would help, for example, 
would be better enforcement of the hiring of illegal 
immigrants.
    Secretary Napolitano. That is why we have focused our 
efforts on employers who continually hire illegal immigrants. I 
might suggest, Senator, one of the areas of the law we would 
hope the Congress would take up are the elements of proof you 
have to have to do a criminal prosecution of an employer.
    Senator Kyl. Okay. I would be happy to receive any 
recommendations that you have in that regard because clearly 
both the draw to this country as well as the kinetic energy 
there on the border are sides of the same coin with respect to 
control.
    Secretary Napolitano. I think that is fair. You have to 
look at demand as well as supply.
    Senator Kyl. Right. Now, let me get to something specific. 
We have talked about this a lot. It is the Operation 
Streamline, the idea that for people who cross illegally there 
will be consequences, specifically jail time. And in the Yuma 
sector, we have gone through the numbers. There has been a 
dramatic decline in attempted crossings. And the agents there 
have, over the last several years, attributed that, among other 
things, to the effective use of Operation Streamline, the 
incarceration for a relatively short period of time, in most 
cases a week or two, of people who cross.
    Alan Bersin on February 8 gave a speech in Tucson. And one 
thing he said was, ``No mas. No more returns without 
consequences.'' And the ABC affiliate in Tucson, KGUN9, a TV 
station, followed up to find out exactly what the consequences 
would be, and the station was told, and I am quoting now, 
``First-time arrestees will be charged with a misdemeanor for 
illegal entry and then will be bussed or flown to an area far 
away from where they crossed. Illegal immigrants arrested the 
second time will then face illegal re-entry charges, a felony 
that carries a prison sentence between 6 months to 2 years.''
    Are you aware of that statement?
    Secretary Napolitano. Yes, I am.
    Senator Kyl. Do you think that accurately describes the 
consequences that the Department has in mind?
    Secretary Napolitano. I think it accurately describes some 
of the consequences.
    Senator Kyl. And actually my question was not intended as a 
trap. I will tell you that it seems to me that there is 
something in between, and that may be the reason for your 
answer just now.
    Secretary Napolitano. Well, and as you and I have 
discussed, Streamline is an effective program. At least the 
initial data suggests that. We are also doing other types of 
consequences that do not have such a heavy burden on the 
justice system--because Streamline is justice focused--that 
have consequences.
    And, you know, we are still collecting data to see, well, 
do those have the same as Streamline? In other words, is there 
a more cost-effective way to achieve what Streamline has 
achieved in a busy sector like the Tucson sector?
    Senator Kyl. Right, and I appreciate that. The reason that 
I think your answer was correct about the consequences is that 
in the Yuma sector even first-time crossers go to jail. And 
generally the term of the first-or second-or third-time crosser 
is somewhere around a week or 2 weeks, or it could be up to 60 
days. But that has proved to be a very effective deterrent. And 
that is not what is being applied in the Tucson sector, even in 
the relatively few cases where there are prosecutions. 
Frequently it is time served, which is a day or two, and, 
therefore, it is not nearly as effective.
    In order to determine what is both cost-effective as well 
as--throw out the element of cost for a minute--an effective 
deterrent, I think it is very important that we spend the 
relatively small amount of resources necessary to implement in 
a more aggressive way the elements of Operation Streamline in 
the Tucson sector. I provided you with estimates of the cost 
from Judge John Roll.
    Secretary Napolitano. You did.
    Senator Kyl. You have those now. And what I am going to ask 
you to do is to work with me and Attorney General Holder to 
identify the needs and to support those needs in requests for 
funding to Congress so that we can try to employ Operation 
Streamline in an effective way in the Tucson sector.
    You are welcome to comment on it if you would like, but I 
am going to make that request very specifically because I think 
that until we do that, we are not going to be able to get the 
Tucson sector under control, and it has obviously been 
effective in other areas of the border, both in Texas and 
Arizona. And, therefore, it seems to me to be well worth 
pursuing given the costs involved.
    Secretary Napolitano. Senator Kyl, we will be happy to work 
with you and others in the Congress on Streamline. I would make 
a request as well, that as we gather data on how some of these 
other consequence regimes work in terms of particularly 
recidivism, that we be able to supply that data to you, that we 
keep an open mind.
    Senator Whitehouse. Madam Secretary, back to cybersecurity 
for one moment. We have here a bipartisan desire to proceed 
with a substantial cybersecurity bill. It is a national 
security priority. Indeed, it was Director Clapper's No. 1 
priority in his testimony for his confirmation hearing. There 
is a need for legislation in order to adequately protect the 
country, and the legislation is stalled for the interagency 
process.
    So what I would like to do is to bifurcate my question to 
you, to pass to the White House and try to get an answer to, or 
to answer yourself. One part of the question is what we asked 
already: When will this interagency process end? And the second 
is: If that cannot be answered, or if it is at a point so 
distant that it does not make sense to hold back on legislating 
in the meantime, would there be a time when the executive 
branch would be willing to engage with the legislative branch, 
even before the full conclusion of the interagency process in 
order to get the craftsmanship, the drafting of the legislation 
moving along?
    At the moment it is my understanding that there is a 
general sort of stand-down on contacts with us from the 
executive branch while the interagency process proceeds. That 
stand-down presumably could be lifted separately from the 
conclusion of the interagency process if we were down to issues 
that were not particularly significant to the overall shape of 
legislation and it was not useful or significant to hold us 
back for that reason.
    Secretary Napolitano. Senator, I do not know if we have in 
this Congress since the beginning of the year, but in 111th 
Congress we were providing direct input into both the Commerce 
Committee and the Homeland Security Committee in terms of 
operations, how things actually work, what is going on in the 
cyber arena. And all I can suggest at this point--I understand 
and take your frustration to heart. I will take it to the White 
House, and we will try to generate an answer for you.
    Senator Kyl. And to both questions, when does the IAP end? 
And is there a moment before its complete conclusion when 
engagement on the draftsmanship of legislation might commence?
    Secretary Napolitano. Indeed.
    Senator Whitehouse. Got it. Okay. Thank you.
    Let me conclude with just an expression of personal 
gratitude and appreciation. As you will recall, about a year 
ago you were flying around Rhode Island in a Black Hawk 
helicopter----
    Secretary Napolitano. I was.
    Senator Whitehouse.--looking down at the most devastating 
floods Rhode Island has ever seen, and I appreciate your 
personal attention to that, as does Senator Reed. And we also 
appreciate the extraordinary effort that FEMA put forward to 
reach out across Rhode Island to open temporary offices, to be 
everywhere from, you know, Cumberland to Westerly. You were on 
the ground rapidly and widely, and it was from that perspective 
very successful, and we are very grateful for you.
    We are doing kind of an after-action report on what the 
lessons learned are. I think there are a few areas in which we 
can improve a little bit. I think that some of the claims and 
denials, that process seemed a little tough for some of our 
towns. And there is at least a sentiment from some of our 
municipalities that if they hired a contractor expert in coping 
with this kind of interagency engagement, that there was a 
penalty for that, that the FEMA folks would prefer to deal with 
the town manager not familiar with this stuff rather than the 
contractor hired by the town manager who actually knew his or 
her way through the process.
    So we will get back to you on that. I think we need to 
engage the SBA because we found precious little for small 
businesses in all of this given how low interest rates have 
fallen, the statutory rate that the SBA is allowed to offer 
actually -you had to be creditworthy to begin with, and if you 
were creditworthy, given interest rates, people could go to 
their local bank and get a better deal.
    So what was set for SBA years ago when interest rates were 
higher has left us in this circumstance with SBA providing far 
less relief than it wished to in this circumstance. So I will 
get back to you on that, but I would ask that when the time 
comes, that that receive at least a moment of your personal 
attention because we are going to try to be very serious about 
it on our end to make sure that you get as good a lessons 
learned response from us as possible.
    Secretary Napolitano. I think that is fair. We are always 
seeking to--thank you for your comments, by the way, but we are 
always looking for things that we can do to improve the process 
so that communities can recover as quickly and get back to 
normal as smoothly as possible.
    Senator Whitehouse. Well, the energy, the dispatch, the 
immediacy, the breadth of your agency's response was really 
fabulous, and these other things, I think it is always good to 
work to make it better. But overall we were just delighted at 
the way you all managed things, and these other parts we will 
work on.
    Secretary Napolitano. Fair enough.
    Senator Whitehouse. I appreciate your testimony here today. 
It has been a long morning for you. We will hold the record 
open for 1 week for anything that anybody wishes to add, and 
without further ado we are adjourned.
    Secretary Napolitano. Thank you.
    Senator Whitehouse. Thank you, Madam Secretary.
    [Whereupon, at 12:08 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]




                                 
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