[Senate Hearing 112-513]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 112-513



                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION


                            OCTOBER 19, 2011


                          Serial No. J-112-48


         Printed for the use of the Committee on the Judiciary

                         U.S. GOVERNMENT PRINTING OFFICE 

75-641 PDF                       WASHINGTON : 2012 

For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; 
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, 
Washington, DC 20402-0001 

                       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
AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
AL FRANKEN, Minnesota                MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware       TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director

                            C O N T E N T S




Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement and letter................................   103


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

                         QUESTIONS AND ANSWERS

Responses of Janet Napolitano to questions submitted by Senators 
  Leahy, Whitehouse, Grassley, Kyl, Sessions.....................    36

                       SUBMISSIONS FOR THE RECORD

Napolitano, Hon. Janet, Secretary, U.S. Department of Homeland 
  Security, statement............................................   107



                      WEDNESDAY, OCTOBER 19, 2011

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

                      THE STATE OF VERMONT

    Chairman Leahy. Good morning, everybody. Thank you all for 
being here. It has been another good week for our Nation and 
our Federal law enforcement efforts. Last Tuesday, we learned 
of the foiled assassination attempt in the United States of the 
Saudi Ambassador to the United States. This case involved the 
Department of Justice, the FBI, and the DEA in a coordinated 
effort to stop an act of terrorism on U.S. soil, and I want to 
praise the agencies involved in the investigation. I was also 
pleased to see that, in this instance, Members of Congress did 
not engage in armchair quarterbacking over whether the suspect 
should be transferred to military custody or sent to 
    I remember nearly 2 years ago, when a terrorist attempted 
to blow up an airplane on Christmas Day, some politicians used 
the occasion to criticize the Attorney General after the 
suspect was arrested. They made all kinds of claims, none of 
which came true. One I recall was people saying, well, why was 
he given Miranda rights? Well, most of who have been involved 
in law enforcement know if somebody is going to confess, they 
are going to confess whether you give them Miranda rights or 
not. We obtained a lot of useful intelligence from the suspect. 
People complained about trying the Christmas day suspect in 
Federal court. He was tried in Federal court and showed the 
rest of the world that our courts work. The suspect pled 
guilty. He now faces a potential life sentence. The prosecution 
can feel very happy that they followed it exactly the way they 
did and did not listen to the Monday morning quarterbacks. More 
than 400 terrorism cases prosecuted by the Department of 
Justice since September 11, 2001.
    Over the last 2\1/2\ years, the President and his national 
security team have done a tremendous job protecting America and 
taking the fight to our enemies. Earlier this year, the 
President ordered a successful strike against Osama bin Laden. 
He has stayed focused on destroying al Qaeda from his first 
days in office. I commend the President and the CIA on that 
    Last month, the administration was also able to locate 
Anwar al Awlaki, a terrorist operative in Yemen who was 
recruiting Americans to attack within the United States, in one 
case with horrible and tragic effects at Fort Hood.
    Now, do we remain vigilant? Of course. But I think we ought 
to acknowledge that there has been a great deal of progress 
    In the aftermath of 9/11, the country spent trillions of 
dollars trying to shore up our security. Some of the efforts, 
especially those undertaken in the early years, were wasteful 
and ineffective. The Bush-Cheney administration insisted on 
shifting our focus from bin Laden to Saddam Hussein in Iraq, 
even though Saddam Hussein and Iraq had absolutely nothing to 
do with 9/11. That cost thousands of American lives and added 
hundreds of billions, possibly over $1 trillion, to our 
national debt. We continue to take money from programs in the 
United States--including education, medical research, 
infrastructure, and housing--and we dump it into Iraq. I hope 
that the Nation and the Congress are now ready for a new 
discussion about the next chapter in our efforts.
    Secretary Napolitano, you and I first met back in the days 
when you were a prosecutor. I have a great deal of admiration 
for you and the way you have run your office, and I thank you 
for joining us this today. I look forward to hearing from you 
what you believe have been the successes of the past few years 
and what our priorities should be moving forward. I hope that 
your Department can strengthen its effort to provide help not 
only to Vermonters but others around the country who have been 
so devastated by recent natural disasters. That has been an 
important and necessary role for the Federal Government that is 
much needed.
    I do appreciate all of the Department's efforts to help 
Vermonters begin rebuilding after the devastating floods we 
experienced this spring and this summer. I was born in Vermont. 
I have never seen anything so disastrous in my life. It reminds 
me of the stories my grandparents and parents would tell me 
about a disastrous flood from 100 years ago. These emergencies 
are difficult enough for the Americans living through them, 
especially as winter approaches. We should not complicate the 
situation with the added uncertainty that comes from 
ideological opposition to this fundamental Federal role and 
that results in Congressional inaction on desperately needed 
funding for disaster relief. The American people waiting for 
disaster assistance should not be victimized again. Americans 
should help other Americans as we have for generations.
    As somebody said to me, we seem to have an unlimited amount 
of money to build roads and bridges and houses in Iraq and 
Afghanistan, and then they are blownup. Build them in America 
for Americans by Americans, and Americans will protect them and 
use them.
    We in our State bore the full brunt of Irene. Roads, 
bridges, homes, farms, and businesses were all destroyed when 
gentle rivers became torrents of destruction. I want to 
compliment Craig Fugate, the Administrator for FEMA, and his 
staff. He came up to Vermont, where my wife and I met with him. 
I have gone around and visited a number of the FEMA offices in 
Vermont, and I thank the FEMA staff for doing such good work.
    Border security is another area in which we have progress 
to report. I think it is finally time to renew a discussion of 
comprehensive immigration reform, a discussion that went off 
track after the Senate passed a bipartisan bill in 2006. Madam 
Secretary, I look forward to your help on immigration reform.
    Our work is not done. Change has never been quick or 
simple. The kind of change brought about by comprehensive 
immigration reform depends on persistence and determination. I 
realize it is a different world than when my grandparents, my 
maternal grandparents, emigrated from Italy to the United 
States, to Vermont. But we have to realize we are a Nation of 
immigrants, and we have got to have a better immigration 
    I look forward to the day when, to paraphrase President 
Obama, barricades begin to fall and bigotry begins to fade. 
Then, not only laws, but hearts and minds will change. New 
doors of opportunity will swing open for immigrants who want 
only to live the American dream. Our Nation will be stronger, 
better, and more productive on that day.
    So with that, Senator Grassley, I yield to you.

                            OF IOWA

    Senator Grassley. Oversight is a critical function of our 
Government, a constitutional responsibility of Congress. It is 
often an overlooked function for members. It is not always 
glamorous. It is hard work, and it can be frustrating because 
of bureaucratic stonewalling.
    In 2008, I was glad to hear the President-elect talk about 
the most transparent Government ever. Unfortunately, this 
administration has been far from transparent. Today's hearing 
will give us an opportunity to ask questions that have gone 
unanswered. I am frustrated by the less than forthcoming 
answers we receive from the administration when conducting our 
constitutional duty of oversight.
    We need a little bit more straight talk. This Senator for 
one feels as though our concerns are often dismissed. An 
example: Just last week, 19 Senators received a response to a 
letter that we sent to the President about immigration 
policies. The response did not come from 1600 Pennsylvania 
Avenue. It did not even come from the Secretary before us. It 
came from a bureaucrat in the Office of Legislative Affairs. 
The response was non-responsive. It is as if our concerns are 
somehow trivial or insignificant.
    We wrote to the President about prosecuting discretion 
directives being issued by the Department of Homeland Security. 
In June, Assistant Secretary Morton released a memo directing 
and encouraging Immigration and Customs Enforcement officers to 
exercise prosecuting discretion. Officers were asked to 
consider the alien's length of presence in the United States; 
the circumstances of the alien's arrival in the United States, 
particularly if the alien came as a young child; their criminal 
history, age, service in the military, and pursuit of education 
in the United States.
    On August 18th, the Secretary announced an initiative to 
establish a working group to sort through an untold number of 
cases currently pending before the immigration and Federal 
courts to determine if they can be ``administratively closed.'' 
Combined, these directives are alarming, especially to those of 
us who firmly believe in the rule of law.
    We have many unanswered questions from this administration 
about their prosecuting discretion initiatives. We want 
answers. We want transparency and accountability. 
Constitutionally, we are a part of the process. The American 
people are shareholders, and they deserve to be consulted when 
major immigration policy is being formulated. Americans also 
want the truth.
    I am frustrated about the administration's deceptive 
marketing tactics in claiming that they have deported more 
undocumented people than ever before. The Secretary continues 
to use statistics that are inflated and inconsistent with the 
official data produced by the Office of Immigration Statistics. 
That office has been around awhile--since 1883, to be exact--so 
I would like to know why the Secretary cherrypicks what numbers 
she wants to use and refuses to use the statistics provided by 
the Office of Immigration Reform.
    And I will point now to all of you to look at the poster. 
The Department has a credibility problem. The Washington Post 
uncovered the story last December. The headline says it all: 
``Unusual methods helped ICE break deportation records.'' The 
administration, including the Secretary, uses figures prepared 
by ICE. ICE uses a different methodology, counting deportations 
from previous years and operating a repatriation program longer 
to pad the numbers. The Office of Immigration Statistics, on 
the other hand, only counts removals that actually took place 
during that year.
    Let me provide another example. The Secretary gave a speech 
at American University on October 5th saying that in 2010 ICE 
removed over 195,000 convicted criminals. However, the official 
statistics of the Office of Immigration Statistics is 168,500, 
so that is a difference of 27,000.
    The point is we do not know what to believe. The Department 
is using different methodologies from 1 year to the next. 
Homeland Security personnel, according to the Washington Post, 
are encouraging immigration officials to do what they can to 
increase the overall removal numbers. There is funny business 
going on, and the Department's credibility is at stake.
    But do not just take it from this Senator. Even the 
President acknowledged that the numbers are dubious. During a 
recent online discussion aimed at Hispanic voters, President 
Obama said that, ``The statistics are a little deceptive.''
    So I would like to hear from the Secretary why they 
continue to use these deceptive statistics and why the 
Department chooses to use ICE figures which are embellished and 
inconsistent rather than using the data from the Office of 
Immigration Statistics.
    I would also like assurances again that this administration 
is not using creative ways to keep as many undocumented people 
in this country. We have talked a lot about deferred action and 
parole, but there are many other ideas in the memo.
    For example, one of the most egregious options laid out in 
that memo was a proposal to lessen the extreme hardship 
standard. The amnesty memo states, ``To increase the number of 
individuals applying for waivers and improve their chances of 
receiving them, CIS could issue guidance or a regulation 
specifying a lower evidentiary standard for extreme hardship.''
    If the standard is lessened, untold numbers of undocumented 
individuals would be able to bypass the 3-year and the 10-year 
bars that are clearly laid out in the Immigration and 
Nationality Act. I expect to hear from the Secretary if such a 
plan is being discussed by anyone within the Department. If it 
is, I will warn her that such an action would be another 
blatant attempt to circumvent Congress and the laws that we put 
in place.
    On a final matter related to immigration, I am very 
concerned by the administration's inconsistent position when it 
comes to suing States for enacting various immigration laws. 
The administration has sued Arizona and Alabama, and now news 
reports claim that the attorneys are considering challenges in 
other States, including Utah, Georgia, Indiana, and South 
Carolina. But what about cities and States that ignore Federal 
law? Will the administration turn a blind eye to them?
    Finally, I have asked Secretary Napolitano in the past 
about the involvement of the Immigration and Customs 
Enforcement officers being detailed to Phoenix to the ATF's 
Operation Fast and Furious. I also asked the Secretary at a 
hearing back in June about whether she had had any 
communication about Fast and Furious with her former chief of 
staff, Dennis Burke, who was the U.S. Attorney in Arizona 
responsible for Fast and Furious. I did not get any response 
    Mr. Burke is to be commended to some extent for being the 
only person to resign and take responsibility for a failed 
operation. Of course, I do not believe that he should feel 
obligated to be the only fall guy. If there are other higher-
ranking officials in the Justice Department who should also be 
held accountable, they should also step up to take 
    Thank you, Mr. Chairman.
    Chairman Leahy. Well, thank you.
    Now with all those greetings, Secretary Napolitano, please 
feel free to start. We have Senators Coons, Durbin, Schumer, 
Feinstein, myself, Grassley, and Hatch here. Others will be 
joining us.


    Secretary Napolitano. Well, thank you, Mr. Chairman and 
Ranking Member Grassley, members of the Committee, for the 
opportunity to testify today.
    I would like to update you on the progress we are making, 
particularly with respect to our efforts to prevent terrorism 
and to enhance security, to secure and manage our borders and 
to enforce and administer our Nation's immigration laws. In 
these and other areas, we have continued to grow and mature as 
a Department by strengthening our existing capabilities, 
building new ones, enhancing our partnerships across all levels 
of Government and with the private sector, and streamlining our 
operations and increasing efficiency.
    Nonetheless, we know the terrorist threat facing our 
country has evolved significantly over the last 10 years, and 
it continues to evolve. Perhaps most crucially, we face a 
threat environment where violent extremism and terrorism are 
not defined or contained by international borders. So today we 
must address threats that are homegrown as well as those that 
originate abroad.
    Over the past 2\1/2\ years, DHS has worked to build a new 
architecture to better defend against this evolving terrorist 
threat. For one part, we are working directly with law 
enforcement and community-based organizations to counter 
violent extremism at its source, using many of the same 
techniques and strategies that have historically proven 
successful in combating violence in American communities.
    We are focused on getting resources and information out of 
Washington, D.C., and into the hands of State and local law 
enforcement, to provide them with the tools they need to combat 
threats in their communities.
    We continue to participate in Joint Terrorism Task Forces, 
provide support for State and local fusion centers, and work 
with our partners at the Department of Justice on the 
Nationwide Suspicious Activity Reporting Initiative.
    We are encouraging the public to play a role in our shared 
security through the nationwide expansion of the ``If You See 
Something, Say Something'' campaign. And we have replaced the 
color-coded alert system with the new National Terrorism 
Advisory System, the NTAS, to provide timely information about 
credible terrorist threats and recommended security measures.
    These steps provide a strong foundation that DHS and our 
partners can use to protect communities, better understand 
risk, engage and partner with the international community, and 
protect the privacy rights, civil rights, and civil liberties 
of all Americans.
    Over the past 2\1/2\ years, this administration also has 
dedicated unprecedented resources to securing our borders, and 
we have made the enforcement of our immigration laws smarter 
and more effective, focusing our finite resources on removing 
those individuals who fit our highest priorities. These include 
criminal aliens as well as repeat and egregious immigration law 
violators, recent border crossers, and immigration court 
fugitives. The efforts are achieving unprecedented results.
    Overall, in fiscal year 2011, ICE removed nearly 397,000 
individuals, the largest number in the agency's history. Ninety 
percent of those removals fell within one of our priority 
categories, and 55 percent, or more than 216,000 of the people 
removed, were convicted criminal aliens--an 89-percent increase 
in the removal of criminals over fiscal year 2008. This 
includes more than 87,000 individuals convicted of homicide, 
sexual offenses, dangerous drugs, or driving under the 
    Of those we removed without a criminal conviction, more 
than two-thirds in fiscal year 2011 fell into our other 
priority categories: recent border crossers, repeat immigration 
law violators, and fugitives.
    Now, as part of the effort to continue to focus the 
immigration system's resources on high-priority cases, ICE, in 
partnership with DOJ, has implemented policies to ensure that 
those enforcing immigration laws make appropriate use of the 
discretion they already have in deciding the types of 
individuals prioritized for removal from the country. This 
policy will help immigration judges, the Board of Immigration 
Appeals, and the Federal courts to focus on adjudicating high-
priority removal cases more swiftly and in greater numbers, 
enhancing ICE's ability to remove convicted criminals. This 
policy will also promote border security as it sharpens ICE's 
focus on recent border entrants and allows for the expansion of 
ICE operations along the southwest border.
    We have also stepped up our efforts against employers who 
knowingly and repeatedly hire illegal labor and take action to 
identify visa overstays, enhance refugee screening, and combat 
human trafficking.
    Smart and effective enforcement is just one part of the 
overall puzzle. This administration is also committed to making 
sure we have a southern border that is safe, secure, and open 
for business. We are more than 2 years into our Southwest 
Border Initiative, and based on previous benchmarks set by 
Congress, it is clear that the additional manpower, technology, 
and resources we have added with bipartisan support are 
    Illegal immigration attempts, as measured by Border Patrol 
apprehensions, have decreased 36 percent along the southwest 
border over the past 2 years and are less than one-third of 
what they were at their peak. We have matched decreases in 
apprehensions with increases in seizures of cash, drugs, and 
    Violent crime in U.S. border communities has remained flat 
or fallen in the past decade. CBP is developing a comprehensive 
index that will more holistically represent what is happening 
at the border and allow us to better measure our progress 
there. I look forward to updating this Committee as those new 
measures are developed.
    Finally, USCIS continues to improve our ability to provide 
immigration benefits and services to those eligible in a timely 
and efficient manner by streamlining and modernizing its 
    We know more is required to fully address our Nation's 
immigration challenges. President Obama is firm in his 
commitment to advancing immigration reform, and I personally 
look forward to working with this Committee and with the 
Congress to achieve this goal and to continue to set 
appropriate benchmarks for our success in the future.
    So I would like to thank this Committee for its support of 
our mission to keep the United States safe, and I want to thank 
the men and women who are working day and night to protect and 
defend our country, often at great personal risk.
    I am happy to take your questions, Mr. Chairman.
    [The prepared statement of Secretary Napolitano appears as 
a submission for the record.]
    Chairman Leahy. Well, thank you, Madam Secretary.
    To begin with, you have been attacked for issuing the new 
prosecutorial discretion policy. All prosecutors, as you know, 
having been one yourself, have to make at least some decisions 
based upon resources, whether you are a State's attorney in 
Vermont or Secretary of Homeland Security or the Attorney 
General. So I think we have to be realistic about the situation 
we face.
    It would be impossible to deport all of the immigrants in 
the United States who are undocumented. Nobody is asking the 
Government to redirect billions of dollars to try to remove 10 
million individuals, even if that would be possible. That is 
not an amnesty policy. Recipients of deferred action do not 
receive lawful permanent residence. Not all people are going to 
be granted authorization to work. Meanwhile, as far as I can 
tell, DHS is still deporting a record number of immigrants each 
year--in fact, over a million in this administration since 
President Obama took office.
    So let me ask you this: How does this prosecutorial 
discretion policy strengthen law enforcement and border 
security? Is it a smart use of our Federal resources? Is it a 
good use of our Federal resources?
    Secretary Napolitano. Well, Mr. Chairman, you have hit the 
nail on the head. Any prosecution office has finite resources, 
and you have to set priorities. What has been a bit surprising 
is the reaction that somehow the prosecution memo that Director 
Morton issued this summer was something new. In fact, if you go 
back historically in the immigration area, there is U.S. 
Supreme Court case law; there are memos from directors in both 
Republican and Democratic administrations; and it makes common 
    So when we look at the fact that there are 10 million or so 
illegal immigrants probably in the country and the Congress 
gives us the resources to remove approximately 400,000 per 
year, the question is who are we going to prioritize, and we 
are very clear: We want to prioritize those who are convicted 
criminals; we want to prioritize those who are egregious 
immigration and repeat violators; we want to prioritize those 
who are security threats, those who have existing warrants. And 
what you see happening now, particularly over the last year, 
fiscal year 2011, is that while the number, around 400,000, 
remains about the same, the composition of those within that 
number who are being removed is now really shifting to reflect 
the priorities we have set.
    Chairman Leahy. Let me talk about another issue: what comes 
across our borders. Right after 9/11, a large number of 
Department of Agriculture people who checked for invasive 
pests, and plants coming across our borders were shifted to 
look for terrorists. We now find that invasive wood-boring 
pests, such as the emerald ash borer beetle, cost homeowners an 
estimated $830 million a year in lost property values; local 
governments, almost $2 billion; woodlands that are destroyed; 
as well as that these pests do to our environment. These pests 
cost taxpayers billions of dollars a year, plus irreparable 
damage that cannot be quantified. Too many pests have slipped 
undetected into the country since U.S. Customs and Border 
Protection took over these inspections from the Department of 
Agriculture. They threaten the quality of our Nation's food 
supply in some agricultural areas, specially items like 
specifically Vermont maple syrup.
    Some Senators in both parties would like to see the 
inspections return to the USDA. Others say we ought to elevate 
the agricultural mission within Customs and Border Protection.
    What do you recommend that we do? What kind of assurances 
can you give us that the inspections we need at our airports, 
our border crossings, our seaports, even rail, are going to be 
done the way it should be?
    Secretary Napolitano. Yes, thank you, Mr. Chairman. We have 
within CBP I want to say somewhere between 2,300 and 2,800 
agriculture specialists located at the ports of entry to search 
exactly for what you are suggesting, different kinds of pests, 
invasive species, things that could wipe out an entire crop or 
actually an industry very quickly should they take hold in the 
United States.
    We also work with our international partners at the last 
points of departure for the United States in this regard. I do 
not have an opinion to express now on whether the Agriculture 
Department should take over this role, but I will say----
    Chairman Leahy. I understand, but you would accept the fact 
that it is an important issue?
    Secretary Napolitano. Oh, absolutely.
    Chairman Leahy. And I would hope you would look at this 
very carefully. I just want to make sure that we have the best 
people possible do it, because the danger to this country is 
    Secretary Napolitano. I would agree, and the people who do 
it are specially trained in this regard.
    Chairman Leahy. Let me talk about H-2A agriculture visas. 
There is considerable unhappiness about how the H-2A program is 
administered. We in Vermont--and I am sure it is the same in 
some of the other States represented here--have dairy farmers 
and other agricultural businesses, such as apple growers, who 
have experienced very difficult challenges within the 
Department of Labor and USCIS, and I am afraid we are 
maintaining something that is fundamentally unfair. I am not 
alone in my frustration with the situation that dairy farmers 
and others face. A seasonal visa for a dairy farmer does not do 
much good.
    Senator Lee, who is a member of this Committee, recently 
introduced a bill to provide dairy farmers access to the H-2A 
program. Senator Enzi and I previously introduced a similar 
    Now, if I had my druthers, it would be to tackle 
immigration in a broad manner, which I tried to do with 
President Bush, and I praised him in the effort to do it. For 
now, would you support us in a bipartisan effort to provide 
some basic fairness in the H-2A program for dairy farmers and 
    Secretary Napolitano. With the caveat that we always want 
to see the actual language, the answer is yes. We have had this 
dairy issue for a couple of years now, and our hands are tied 
until the law is changed.
    Chairman Leahy. And I realize I have gone over my time, but 
I want to look also at another thing, the question of material 
support for terrorism. We have seen a case of a refugee who 
sold flowers, or gave a bowl of rice to a member of a terrorist 
organization, who is then barred. If somebody gives a donation 
of $1, that is one thing. Somebody who gives hundreds of 
dollars is another. Somebody who sells flowers to a terrorist 
is not providing support to a terrorist, but actually taking 
money out of that terrorist's pocket. Can we take a look at the 
interpretation of what is ``material'' support so that we are 
dealing with truly material contributions and not immaterial 
    Secretary Napolitano. And it is also something that 
obviously involves the Department of Justice, but the answer is 
yes. For example, I think we have recently been providing some 
clarification with respect to those who provided medical care. 
So the answer is yes, we do need to look at some of these on a 
case-by-case basis.
    Chairman Leahy. With that, Chuck?
    Senator Grassley. Thank you.
    Thank you, Madam Secretary, for coming. I am going to start 
out by asking you for some memos that you just referred to that 
previous administrations have exercised prosecutorial 
discretion both in Republican and Democratic administrations. I 
would like to have copies of those, if I could, please.
    Secretary Napolitano. Absolutely, Senator, and these memos 
were actually referred to by date and author in the PD memo 
that Director Morton issued. But we will give you copies of all 
of them.
    Senator Grassley. Thank you.
    Exactly 2 months ago, you announced the prosecutorial 
discretion initiative focusing on high-priority cases. While 
you say that the working group is still finalizing the 
implementation details, this Committee needs some answers about 
what has been discussed and decided up to this point. We hear 
estimates of 300,000 cases could be reviewed. Some say it is 
upward to 1 million. Could you give us an estimate of how many 
individuals or cases could be reviewed, at least as roughly as 
you can?
    Secretary Napolitano. Yes, Senator. Just referring to the 
master docket of what is pending in immigration courts now, it 
is roughly 300,000.
    Senator Grassley. OK. Will those with final orders of 
removal be eligible for relief through this process?
    Secretary Napolitano. Absent unusual circumstances, no. 
This is for cases that are pending are clogging up the docket 
and preventing us from getting to the higher-priority cases.
    Senator Grassley. According to information from your 
Department, some individuals who are given relief will obtain 
work authorizations so people with no right to be in the 
country will be allowed to work here. Is that correct?
    Secretary Napolitano. Well, Senator, since around 1986, 
there has been a process where those who are technically 
unlawfully in the country may apply for work authorization. 
This goes to CIS. It is not an ICE or a CBP function. And those 
cases are reviewed by CIS on a case-by-case basis. So there is 
no change in that process--it goes back to the mid-1980s and is 
contemplated now.
    Senator Grassley. But, yes, some of them could have an 
opportunity to work here even though they are here illegally?
    Secretary Napolitano. Well, that happens now, Senator.
    Senator Grassley. OK. My staff sent over a request for 
answers about this new process. I would like to have those 
questions answered in a timely manner, please. Would you do 
    Secretary Napolitano. I would be happy to.
    Senator Grassley. OK. Will you commit to keeping the 
Committee informed as the process unfolds, including providing 
real-time data on how many people are considered and how many 
are provided relief, biographical information and the number of 
work authorizations approved?
    Secretary Napolitano. We will be happy to keep the 
Committee staff apprised. I do not know what you mean by ``real 
time.'' With 300,000 cases, obviously you can not apprise a 
Committee each time a decision is made. But I think we can 
reach an agreement as to how to keep the Committee 
appropriately briefed.
    Senator Grassley. Periodic updates. Thank you.
    When Congress created your Department, there was some 
discussion about taking away the Department of State's consular 
function and giving it to Homeland Security. As a compromise, 
Congress allowed State to keep it, but gave Homeland Security 
final authority over visa policies. Congress also dictated that 
all visa applicants between the ages of 14 and 79 be 
interviewed in person with only a few extremely limited 
exceptions. This was because 17 of the 19 September 11th 
hijackers got visas without an interview and despite putting 
nonsensical answers on their visa applications. I am concerned 
about attempts to do away with the required in-person 
interview. I am concerned about the State Department possibly 
reinterpreting the law in order to exempt some more people from 
the requirement. Frankly, this is a September 10th mentality 
that risks our national security.
    Do you think all visa applicants should be interviewed by 
consular officers abroad? And if you do, will you push back on 
an attempt by the Department of State to roll back the in-
person interview requirement?
    Secretary Napolitano. Senator, I need to look into that. 
You are giving me some new information. I will say this, 
however: We have our own people in many embassies as visa 
security program officers who do separate security checks. I 
think we need to not only support that but look at that 
function because that is a check against many relevant 
databases, and we need to do it at least on a risk-based basis.
    Senator Grassley. As you heard in my statement, I have got 
serious concerns about the proposal outlined in a memo released 
last summer that suggested the Department lessen the definition 
of ``extreme hardship.'' I brought this issue up when the memo 
was released and find it to be an egregious option that we need 
to discuss. The authors of the memo suggest that some people 
could apply and receive a waiver to stay in the United States 
and not be subject to the congressionally mandated 3- and 10-
year bars if this definition was watered down.
    Changing the standard would be a huge policy change 
resulting in relief for millions of people who are here 
unlawfully. Are you aware of any discussion to change or lessen 
the definition of ``extreme hardship'' ?
    Secretary Napolitano. Senator, I think what you are putting 
your finger on is the fact that the existing immigration law is 
very difficult. It is something that we would really urge the 
Congress to take a look at holistically. We are ready to work 
with the Congress on that.
    My discussions have focused primarily on making sure that 
as we exercise our enforcement functions, we are really 
prioritizing in a common sense way consistent with what I have 
been informing this Committee since I first became Secretary.
    Senator Grassley. Have you received any memo on that 
    Secretary Napolitano. Not that I am aware of, no.
    Senator Grassley. Well, if such a memo would arrive at your 
desk, would you consider it dead on arrival at your desk?
    Secretary Napolitano. Well, again, I am not going to 
speculate on a memo I have not seen, but I understand your 
    Senator Grassley. Well, you understand--and I think you 
expressed it--that Congress needs to deal with that. And if 
Congress has to deal with it, it would seem to me you can not 
deal with it through administrative action. That is my point of 
    I mentioned former U.S. Attorney Dennis Burke in my opening 
statement. This is an issue that I asked you in June to respond 
to in writing. Have you had any communications with Mr. Burke 
about Operation Fast and Furious?
    Secretary Napolitano. No.
    Senator Grassley. So you then obviously did not talk to him 
anything about Agent Terry's death, and then I will go on to--
    Secretary Napolitano. Well, that is a different question.
    Senator Grassley. Then answer that.
    Secretary Napolitano. If I might----
    Senator Grassley. You have had some communication----
    Secretary Napolitano. No, not about Fast and Furious. When 
Agent Terry was killed on December 14, I went to Arizona a few 
days thereafter to meet with the FBI agents and the Assistant 
U.S. Attorneys who were actually going to look for the 
shooters. At that time nobody had done the forensics on the 
guns, and Fast and Furious was not mentioned. But I wanted to 
be sure that those responsible for his death were brought to 
justice and that every DOJ resource was being brought to bear 
on that topic.
    So I did have conversations in, it would have been, 
December of 2010 about the murder of Agent Terry. But at that 
point in time there, nobody knew about Fast and Furious.
    Senator Grassley. OK.
    Secretary Napolitano. So that is a different question.
    Senator Grassley. Then the last point here is: Since I 
first asked you about Fast and Furious in March, have you done 
things beyond what you just told me looking into it in any way? 
If you have not, it is OK. If you have, I would like to know 
about it.
    Secretary Napolitano. I did ask ICE to look into whether 
there had been any involvement there. I think we responded last 
night to you with respect to that, but that is all. We are 
waiting for the Inspector General.
    Senator Grassley. I will ask you one last question, and 
then my time will probably be about what the Chairman used.
    As you heard in my opening statement, I have concerns that 
this administration chooses to sue some States, like Arizona 
and Alabama, and chooses to turn a blind eye to places that are 
like, I will say, Cook County, Illinois, as an example, that 
refuse to cooperate with Feds on immigration matters. Have you 
had any discussion with the Department of Justice about suing 
cities or States that harbor undocumented immigrants? And what 
do you think about Cook County's ordinance? Have you had any 
contact with them about their ordinance?
    Secretary Napolitano. I have not had any discussions at 
this point in time, and I have not had any communications 
myself with Cook County. But I will say that one of the key 
tools we are using to enforce the priorities we have set with 
respect to removals is the installation of Secure Communities 
throughout the country in jails and prisons.
    The huge majority of jurisdictions have no problem with 
this. We have been improving the system as we have been doing 
the installation. We intend and expect to be completed by the 
year 2013.
    Senator Grassley. Thank you, Madam Secretary.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, and having removed 397,000 last 
year alone, you are removing a lot.
    Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman.
    Madam Secretary, welcome. You run 22 departments with 
240,000 employees, certainly one of the biggest departments in 
the U.S. Government. I just want to say I think you are doing a 
very good job. I think the times are tough. I think leadership 
is very hard in this time, and a lot of things are 
controversial, but I just want you to know that you have my 
support. And I also want you to know that I want to do 
everything we can to prevent guns from going to Mexico because 
I know where they end up, and that is not good for anyone.
    So having said that, I want to concentrate on two programs 
which I have kind of been at Immigration for for the 18 years I 
have been here, certainly following 9/11. One of them is 
student visa fraud, and the other is the Visa Waiver Program.
    Let me begin with student visa fraud. I got into this many, 
many years ago where there was a storefront school next to our 
San Diego office, and, voila, it turned out to be a phony 
university, essentially attracting people from abroad illegally 
to come to the United States on a student visa, and then they 
just disappeared.
    Well, that was a long time ago, but it is still going on, 
and as late as, I believe, January of this year, there was Tri-
Valley University, which is in California, which was apparently 
authorized for 30 students and ended up with some 1,500. And it 
was really a scam because they collected up to 5 percent of the 
tuition--well, each foreign national collected up to 5 percent 
of the tuition of any new student, and there was profit sharing 
and really visa fraud.
    Today I understand that there are more than 10,500 schools 
approved by DHS to accept non-immigrant students and exchange 
visitors to study at their institutions through the Student 
Exchange Visitor Program. I am concerned about the number that 
have turned out not to be operating for student purposes. My 
understanding is that an internal risk analysis performed by 
ICE determined that 417 schools have showed evidence of being a 
high-risk school for fraud.
    So here is the question: What type of enforcement measures 
have been brought to bear and initiated by the Department to 
get at these high-risk schools and shut them down if they are 
not doing the right thing?
    Secretary Napolitano. Senator, I share your concern. We 
have increased the number of individuals who are looking at the 
whole SEVIS program and these institutions. Tri-Valley was 
obviously one of the cases we brought to light. There have been 
others. We are working with the Department of Justice on 
prosecuting the perpetrators and really tightening up on the 
whole student visa program in that regard.
    I would be happy to send you a longer answer as to all of 
the efforts there, but I think for the purpose of the hearing, 
yes, this is a concern, and we have been putting additional 
resources to it.
    Senator Feinstein. I can tell you, more than a decade ago, 
when I looked into it, universities that took these students 
were not even verifying that they, in fact, were in the 
university. We had an agreement then through the University 
Association that that would change. I suspect now that schools 
have so many financial problems that there may be an 
inclination, you know, to accept more foreign students who 
really do not turn up but pay a large amount of money.
    Secretary Napolitano. Pay tuition, right.
    Senator Feinstein. So I think it is a very good thing to be 
on your guard, and I appreciate the fact that you are.
    My other interest was in the Visa Waiver Program. I 
believed--and this is over 18 years now--that a number of 
illegal entries came in through the Visa Waiver Program. If you 
come from a visa waiver country, you come in without a visa. 
You are supposed to leave in 6 months. We have had no exit 
system. We could not tell who was leaving and who was staying.
    So a new database system, SEVIS-II, that is supposed to--
well, wait a minute. That is the----
    Secretary Napolitano. That is the students.
    Senator Feinstein. Right, right. So the elec ESTA, the 
Electronic Travel System, in a recent report by GAO identified 
several measures that you should take. I sent a letter to you 
dated August 15th requesting information on your efforts to 
implement the GAO's recommendations. I am sorry to say I have 
not received a response.
    So here is the question: What are the Department's efforts 
to implement the GAO recommendations to improve the Visa Waiver 
Program, in other words, so that we know that someone that 
comes here leaves when they are supposed to leave? It is 
supposed to be a visitor program, not a permanent program.
    Secretary Napolitano. That is right, and I apologize that 
you do not have a response. You will get one forthwith. But I 
will say that, first of all--and this is very common in the 
GAO. I am not being critical, just descriptive. A lot of times 
there is a lag between the data they have and what is currently 
happening, and so as we have improved our systems and as we 
have been able to merge or develop search engines that can 
quickly search different databases on a real-time basis, the 
ESTA numbers have gone up. The checks have gone up, and we have 
developed a very robust biographic system to measure overstays 
and to prioritize overstays in terms of who we are going to 
direct ICE to go out and find.
    Senator Feinstein. How many visa entrants are there a year, 
visa waiver entrants?
    Secretary Napolitano. I do not have that number. I will get 
it for you. It is a lot.
    Senator Feinstein. Could you get me that? Could you show me 
the trend line?
    Secretary Napolitano. Yes.
    Senator Feinstein. And could you show me the estimates that 
you have pursuant to this data program of people not returning 
to their home country?
    Secretary Napolitano. That is right. Yes.
    Senator Feinstein. I would appreciate that. Thank you.
    Thanks, Mr. Chairman.
    Senator Hatch.
    Senator Hatch. Well, thank you, Madam Chairperson.
    Welcome. We are happy to have you here.
    Secretary Napolitano. Thank you, Senator.
    Senator Hatch. We appreciate the tough job that you have to 
do. It is a difficult job.
    Recently, Immigration and Customs Enforcement, ICE, 
officials conducted an audit on the Weber County, Utah, jail 
that concluded that the facility did not meet some of the 
established ICE detention standards. Now, as a result, the 
Weber County jail can no longer house approximately 30 to 60 
ICE detainees.
    Now, they claimed that ICE mandates their detainees do not 
undergo strip searches, do not have to pay the $10 co-pays for 
medical treatment, cannot have their mail read like other 
inmates, and deserve their own barbershop. The sheriff said 
that is disparate treatment. He said that gets around 
immediately. The other inmates resent it, and that gets staff 
hurt. That gets inmates hurt.
    Now, what are the options, in your opinion, and hopefully 
speaking for the Department, for local jails that are unable to 
comply with some of the more costly or onerous detention 
standards? And do you agree that there is a role for some of 
these noncompliant jails in assisting ICE officials in 
identifying and removing criminal aliens?
    Secretary Napolitano. Well, Senator, I would have to look 
at this Weber jail situation. We use a lot of jails around the 
country who have no problem complying with the standards.
    Senator Hatch. Would you look at it?
    Secretary Napolitano. But we will look into that one.
    Senator Hatch. Please look at it, because it just seems 
ridiculous to me.
    Secretary Napolitano. It does not sound completely 
accurate, if I might say so. I am pretty familiar with the 
detention standards. So we will take a look.
    Senator Hatch. Well, if you would, I would appreciate it 
because, as far as I know, they are humane and conduct good 
jails in that area.
    Now, one of the recommendations from the 9/11 Commission 
report is to create a Visa Exit Program for foreign visitors to 
the United States. Departure information is vital for 
determining whether foreign visitors are leaving the U.S., 
maintaining their visa status, and evaluating future visa 
eligibility for these visitors. Now, not to mention the ability 
to track departures goes to the heart of keeping our Nation 
    That is why I reintroduced the Strengthening Our Commitment 
to Legal Immigration and America's Security Act, which would 
require the Secretary of Homeland Security to create a 
mandatory exit procedure for foreign visitors to the United 
States. You have approached this to a degree here today, but 
without such exit procedures, the task of determining whether 
aliens have overstayed their visas in the United States it 
seems to me would be nearly impossible.
    Now, it is my understanding that since 2004 the Department 
of Homeland Security has been testing various exit programs and 
departure controls at U.S. airports for visa holders leaving 
the United States. And in July 2009, another pilot program was 
conducted by DHS. Yet we have not seen any implementation of 
exit procedures for our country's visitors, nor have we seen 
any final conclusions made by the Department. Or at least I 
have not seen them.
    I would prefer not to create an exit procedure 
legislatively, but it seems like that may be the only way we 
are going to get the results that we need on this important 
matter. And if technology is available to implement an exit 
procedure, why hasn't DHS acted on this? It has been over 7 
years since the first pilot program was completed, and I guess 
my question is: How many more years do we have to wait until we 
get this going? Or am I right on these things?
    Secretary Napolitano. Well, I think we have to, Senator, 
distinguish between biometric exit and a very robust biographic 
exit system that combines a lot of different databases now that 
we did not have even 2 or 3 years ago. These are new 
    We have piloted biometric exit. It is very expensive, and 
in these fiscal times I do not see how, unless Congress is 
willing to give us billions of dollars, we can actually install 
it over the next few years. But I think we can basically get to 
the same point using the biographic exit systems we are 
beginning to deploy. And we have also been able to go back--and 
we started this project last spring--and look at the backlog of 
visa overstays.
    One of the things we have discovered using our enhanced 
biographic system is about half of those people actually have 
left the country. And now we have run the other half against 
our priorities--criminal convictions, recent border crossers, 
fugitives and the like--and that way we can prioritize ICE 
operations on the overstays to meet our other priorities.
    Senator Hatch. OK. Thank you. I have been getting a lot of 
complaints lately about the checks as you pass through the 
monitoring stations where people do not want to go through the 
x-ray station, so they line up on the one side where just the 
open-door station is. And some of your people force them to go 
over to go through the x-ray station. And then if they say, 
``Well, I do not want to do that. I would rather go through the 
other one,'' they say, ``Well, you can do it, but then you are 
going to have to be patted down.''
    Now, my question that they want me to ask is: Why do you 
need a patdown if they go through that smaller station? Is that 
just a way of forcing them to go through the other? Or can't 
they have their choice? And give me the reason why a person 
cannot have his or her choice if they are just afraid of 
getting a shot of radiation or whatever it is that they are 
afraid of or just plain do not like to go through that 
particular station?
    Secretary Napolitano. Well, I can say the answer in one 
word, and that is Abdulmutallab and others like him who have 
been trying to bring explosives onto planes or other material 
that does not have a metal component, and, therefore, the 
magnetometer will not pick it up. So that is why you see the 
patdown procedure has been adjusted to reflect, that plain 
    We actually have been looking nationwide at how we can move 
people through--we handled about 1.5 to 1.8 million passengers 
a day in the U.S. air system and things that we can do to make 
it easier for passengers to process through the system, and we 
continue to look for ways. But the reason for that basic choice 
and where we are is the actual threat that we are dealing with.
    Senator Hatch. Why can't a person, if they line up to go 
through the smaller station because that is what they prefer to 
do, why can't they just do that? Why do they have to be forced 
to go through the other?
    Secretary Napolitano. Well, I do not know about that. I 
mean, they should usually have a choice. And most people opt 
for the AIT.
    Senator Hatch. No, they do not. I am telling you.
    Secretary Napolitano. I will speak with Director Pistole 
about this.
    Senator Hatch. It seems to me, you know, there is--people 
ought to be able to use either one. Now, admittedly, if 
somebody looks suspicious, you have got to have that right to 
have them go through the more serious station, I guess. But the 
vast majority of people are not suspicious at all. I have just 
had a lot of complaints from that, and that is something----
    Secretary Napolitano. Well, I will be happy, Senator, to 
look both into the Weber County jail situation and some of 
those complaints and see what can be done.
    Senator Hatch. OK. It is ``Weeber,'' by the way. We have 
got to get that right.
    Secretary Napolitano. I apologize for that.
    Senator Hatch. If you would look into that, because that 
seems ridiculous to have to provide facilities that they are 
not providing for regular people, and yet they are a humane 
    Secretary Napolitano. Got it.
    Senator Hatch. Thank you.
    Chairman Leahy. I might note, I would like to work with the 
senior Senator from Utah on the TSA issue he raises. He is 
absolutely right. You know, many pilots will not go through the 
x-ray. I realize that some former officials of the Department 
of Homeland Security have lobbied to get the U.S. Government to 
spend hundreds of millions of dollars on the x-ray machines. 
But I have seen exactly the same situation the Senator from 
Utah has. I have known people, member of my own family, who are 
cancer survivors and will not go through the x-rays, and then 
have to wait to clear security. Children have to go through x-
rays and patdowns. There is almost an arrogant disregard at TSA 
for real Americans who have to put up with this screening.
    Senator Hatch. Could I add something?
    Chairman Leahy. I share the frustration of the Senator from 
Utah, and we will work together on this.
    Senator Hatch. If I could just add, my wife loves to go 
through the larger station. I do not know how else to refer to 
it. I do not. But I have been forced to--I line up to go 
through that, and I have been forced twice, at least twice. And 
I always comply, but I am just saying--and I do not ever raise 
a fuss about it, nor would it. But it seems to me if you do 
not--maybe I look like a terrorist. I do not know. But I do not 
think so. I am really very kind and loving, you know.
    Chairman Leahy. I do provide a lot of amusement for people 
who are taking cell phone pictures of me getting the patdown.
    Secretary Napolitano. Well, I do have a great crew working 
at TSA. But I appreciate these concerns.
    Chairman Leahy. At the very top of TSA there is a 
disconnect with reality.
    Senator Hatch. Well, let me just add that I agree with 
that. I think that your employees have been great. And I will 
always comply with whatever they say because----
    Chairman Leahy. As do I.
    Senator Hatch.--it is certainly right, and I know you will, 
too. But there is a ridiculous nature to it, too, sometimes, 
and they have always been very gracious and nice to everybody I 
    Secretary Napolitano. Well, I think we can continue to look 
into it and to improve, and we will work with you. We will look 
into your complaints. I understand that and why people get 
concerned and frustrated when they travel. But I also think we 
have the safest aviation system in the world, and there is a 
reason for that. But, Senator, I will give you that. You look 
kind and loving----
    Senator Schumer. He usually is.
    Secretary Napolitano.--and we should be able to handle 
this, and also look at some of the things that are coming in.
    Chairman Leahy. I understand the people that work there are 
some of the nicest people I have ever met. I just worry about 
some of the directions they are getting from on top, which are 
so unrelated to reality it is frustrating.
    Senator Hatch. Sometimes.
    Chairman Leahy. Senator Grassley reminded us of the risks 
our Federal law enforcement officials face. Since the beginning 
of 2009, 12 Department of Homeland Security law enforcement 
officers have lost their lives in the line of duty. I am going 
to put in the record their names, because that is one thing 
that unites every single one of us on this panel, the grief we 
feel when they have lost their lives.
    It is also a reminder that people in your Department put 
their lives on the line every single day for all of us, 
including the TSA folks. I just want to note that.
    Secretary Napolitano. Thank you, Mr. Chairman.
    Chairman Leahy. Senator Schumer.
    Senator Schumer. Thank you, Mr. Chairman.
    Well, let me pay you a compliment to start off, Secretary 
Napolitano. I think your administration is doing--I want to pay 
a compliment on immigration enforcement because your 
administration is the first really to take a rational approach 
to this issue, and the statistics speak for themselves. You are 
using scarce enforcement resources to deport many more 
dangerous criminals than prior administrations, and you are 
focused very carefully on making us safer rather than causing 
disruptions to the economy or families to placate critics who 
will look for reasons to fault you regardless of how you 
enforce the law. It makes a great deal of sense when you have 
scarce resources to focus on those who are dangerous criminals, 
not willy nilly across the map, and that is what you are doing. 
So keep up the good work on that.
    I sent you a letter on April 14th that asked you to 
implement these changes. You are doing it, and you are doing a 
good job.
    Secretary Napolitano. Thank you, sir.
    Senator Schumer. Now, a couple of questions, one about the 
Peace Bridge up on the Buffalo-Canada border, of great 
importance to the western New York economy. In yesterday's 
Globe and Mail--I take it that is the Toronto Globe and Mail--
there was an article indicating there is an imminent border 
security agreement between the U.S. and Canada. The article 
specifically quotes CPB Commissioner Alan Bersin, who says he 
thinks, ``The United States needs to find ways of expediting 
low-risk cargo and travelers to focus resources on high-risk 
    Nowhere is that more true than on the two bridges we have 
in western New York--the Peace Bridge and the Lewiston-
Queenston Bridge. They are respectively the third and fourth 
busiest commercial crossings in the Nation, handling $30 
billion in commerce between the U.S. and Canada. But my office 
has been fielding lots of complaints from business leaders and 
average citizens about the length of time it takes for 
commercial traffic to enter the U.S. from Canada, and that is 
mainly because the space on the New York side of the border is 
very small. There is plenty of space on the Canadian side. If 
we could do the inspections on the Canadian side, which 
everybody wants, it would be good.
    So can you commit to me that as part of any future border 
deal with Canada you will expedite commercial truck traffic to 
the United States from Canada by prescreening trucks on the 
Canadian side of the Peace Bridge and that this prescreening 
will begin soon?
    Secretary Napolitano. Yes.
    Senator Schumer. Great. There is no better answer than 
that. Yes and yes. I will take it yes to both, right? Good. OK. 
Let us go on to our next one. See, it always pays to start off 
with a compliment.
    Secretary Napolitano. You can do that again if you want.
    Senator Schumer. Nanotech threats. Recent reports have 
highlighted--but, no, I am glad to hear it because this, as you 
know, has been a nightmare for us on the Peace Bridge, long 
before you were----
    Secretary Napolitano. If I might, let me expand. I thought 
your question permitted a yes-or-no answer, and I thought I 
would give you one.
    Senator Schumer. Great.
    Secretary Napolitano. We really are very interested in how 
we can expedite the free flow of goods on both borders, 
northern and southern, and looking at ways where we can do pre-
inspections, if not actually preclearance, on the Canadian side 
and to facilitate that into some of the smaller areas onto the 
U.S. side. So you have clearly got our attention. We have been 
working on this with----
    Senator Schumer. This is just what we need because you 
could have a whole lot of booths on the Canadian side; you 
cannot on the New York side, just by the geography.
    OK. Let us go to nanotech. Recent reports have highlighted 
an emerging threat to the U.S. There is a growing concern that 
universities with nanotechnology research programs could be 
attacked by package bombs from Mexican terror groups who oppose 
nanotechnology for religious or cultural reasons. These same 
terrorists are already linked to attacks in Mexico, South 
America, and Europe. Praise God, none of them have happened 
here so far, but they clearly have an ability to cross 
international borders.
    New York State is one of the leading nanotechnology hubs 
with facilities in Albany and Troy--the capital region is 
probably number one in the country--and in Rochester. At the 
moment it is my impression that the Department of Homeland 
Security is not participating in efforts to keep schools and 
other hubs safe from attacks.
    Can you commit to working with and helping our New York 
universities and nanotechnology hubs with their ability to 
detect and thwart potential threats? And is your Department 
assisting the FBI to try and go after these groups?
    Secretary Napolitano. Well, without commenting on 
investigations in an open setting, I will say that we are 
working with universities and schools across the country on a 
number of things to increase their security measures.
    Senator Schumer. OK. We have not had that with the New York 
schools. Can you commit that you will work with the New York 
    Secretary Napolitano. Let me look into this, Senator, and 
we will get back to you on that in terms of exactly what is 
going on.
    Senator Schumer. OK. Good. But I am sure you would have no 
problem working with our New York schools to make them safer.
    Secretary Napolitano. No.
    Senator Schumer. Good. Thank you. And, finally, this is 
about fake IDs from China. I wrote you a letter in August, you 
may remember, about companies in China who produce exact 
replicas of driver's licenses from various States for sales to 
people who might be terrorists, illegal immigrants, or probably 
primarily underage teenagers trying to drink illegally. These 
licenses are very well done, with the bar code and everything 
else, so it is very hard for the person at the bar, or wherever 
else, to actually detect that they are false. Sometimes you can 
detect it by a false address, but they usually give an out-of-
State one. So if a New York bar in Syracuse gets a driver's 
license that says 123 Elm Street, Altoona, PA, he has no idea 
that there is no 123 Elm Street, Altoona, PA.
    Last week, Western Union gave me good news by agreeing to 
work with the DHS to refuse payments to businesses who, when 
you indicate to them that they are providing fake IDs from 
China--this is the only way to cut it off if we do not allow 
them to wire money. That is what they do. And Western Union 
took a big step forward there. But despite this accomplishment, 
the work is not done. These new false IDs pose a major threat 
to the security of the U.S. as anyone who is on a no-fly list 
and terrorist watchlist can now evade our defenses by using 
these licenses to fly on airplanes with a false identity. A TSA 
agent who has the backlight is incapable--it is not their 
fault; I think they do a good job--is simply incapable of 
detecting whether these IDs are real or fake.
    So I am asking you to begin installing integrated 
electronic ID readers at TSA security points that can 
electronically scan and verify that the identification provided 
by an airline passenger in order to board a flight is indeed 
valid lawful identification. The readers should also 
electronically scan the name against terrorist watchlists, no-
fly lists, et cetera.
    Are we on any path to doing this? What is happening? Can we 
expect it to happen?
    Secretary Napolitano. Yes, we are on a path. There is an 
installation plan. Part of it may be dependent on what we get 
in the fiscal year 2012 and fiscal year 2013 budgets, 
obviously, but we are on a path to have these integrated 
readers and are doing a number of other things for the 
detection--not just detection of fraudulent documents, but the 
flip side of that is verification of actual identity.
    Senator Schumer. Yes, OK. That is great. Well, thank you 
for your very fine answers on every question I asked.
    Secretary Napolitano. Thank you, Senator.
    Chairman Leahy. Senator Sessions.
    Senator Sessions. If you need to go, I will pass.
    Chairman Leahy. Senator Durbin.
    Senator Durbin. Thank you, Senator Sessions, and thank you, 
Madam Secretary.
    Congress has dealt you and the President an impossible 
hand. The United States has a confusing, dysfunctional, and 
often cruel immigration system, and you are charged with 
executing the laws that are associated with it. We all know as 
Senators and Americans that undocumented workers are an 
essential part of our economy, from the fields and orchards of 
California, Arizona, Utah, and Florida, to the meat and poultry 
plants of Iowa, Illinois, and across the Midwest, to the major 
restaurants in Washington, D.C., and Chicago. We avert our eyes 
and pretend these workers are all legal. We know better. They 
are an essential part of our economy, and yet there is this 
revulsion, aversion, and negative feeling about this, and you 
are caught in the middle. You are given these laws and are 
told, ``Make them work.''
    I think you are right to speak about the issue of 
prosecutorial discretion. Every President and members of the 
Cabinet under the President have that responsibility, even 
recognized by the Supreme Court. And I certainly think you were 
right on August 17th when you sent me a letter saying that DHS 
will review all pending deportation cases, and that cases 
involving criminals and threats to public safety will be given 
priority while low-priority cases will be closed in many 
instances. You also said DHS would issue guidance to prevent 
low-priority cases from being put into deportation proceedings 
in the future.
    I appreciate your commitment to this process, but I am 
concerned. It has been 4 months since the Morton memo was 
issued and 2 months since you announced the process for 
implementing it. The review of pending deportation cases, as I 
understand it--correct me if I am wrong--has not yet begun. In 
fact, we do not even know what the criteria will be for the 
review, and you have not issued guidance on who will be put 
into deportation proceedings in the future.
    So when will your review of pending deportation cases 
    Secretary Napolitano. Well, the review of pending 
deportation cases--I think it is important to segregate cases 
coming into the system versus those that are on the master 
docket already. That is the 300,000 that I was referring to 
with Senator Grassley earlier. Those cases, that process 
involves not just DHS but DOJ as well.
    There has been an interagency group working on how you 
actually accomplish that. My understanding is that within the 
next few weeks they will begin piloting in certain districts 
the actual review and hope very shortly thereafter to begin 
going through the master docket cases.
    The goal, of course, is to administratively close some of 
the low-priority cases so that we can facilitate handling the 
higher-priority cases. In a way, we are kind of reverse--we are 
trying to adjust the line in terms of who goes through.
    Now, in terms of----
    Senator Durbin. What is the timeframe?
    Secretary Napolitano. I do not have an end timeframe, but I 
can share with you that I would expect the full review process 
to be--the pilot will start in a few weeks. I would say 2 to 3 
weeks. The pilot is not going to be one of these 6- or 12-month 
typical pilots. It will be very short in its design to find 
logistical issues that happen when you are trying to do a 
massive review of lots of cases all at the same time. So we all 
want to move as quickly as possible once we have kind of 
identified that we have got the logistics down.
    Senator Durbin. So let me ask you this: There are troubling 
reports that there are ICE and CBP field offices which have 
announced that these new deportation priorities do not apply to 
them. Is that true?
    Secretary Napolitano. Well, if there are some, I would like 
to know about it. I have personally, by VTC, spoken with the 
heads of the ICE ERO offices across the country and the heads 
of the OPLA offices across the country, which are the regional 
counsel. My understanding is that they are very excited about 
having clear priorities, that the priorities are the right 
ones. The priorities actually, Senator, I gave this Committee--
in May of 2009 I said we were going to start moving the system 
so we could focus on criminal aliens, and that is what we are 
    Senator Durbin. I was going at this point to show the faces 
and tell the stories of three DREAM Act students whom I believe 
most people would agree, having been brought to this country at 
a very early age, have made an amazing record in their short 
lives and are being held back from contributing to the United 
States. And I certainly believe the President's criteria and 
your criteria are the right criteria. Let us focus on removing 
those people who are a threat to our Nation. That should be our 
highest priority, and it certainly will not include these 
college graduates desperate to go to work and make this a 
better Nation. So I hope that you will continue along this line 
on an expedited basis.
    Last night, you may have seen or heard about the 
``Frontline'' program that----
    Secretary Napolitano. Oh, I have heard about it.
    Senator Durbin. Yes. It went into some detail about the 
immigration detention facilities. It focused on a number of 
them, but particularly on the Willacy Detention Facility in 
Texas. I learned a lot about--''Frontline'' always does a great 
job. But I learned a lot about the situation as I followed this 
program, that some 85 to 90 percent of those who were detained 
under civil charges--not criminal charges but civil charges--do 
not have benefit of counsel, that the due process requirements 
are very limited on their behalf, and that many times they are 
in facilities that are privatized--private businesses that are 
doing them and we do business with them. It has become a huge 
industry. I understand it is about $1.7 billion a year that 
your agency spends on these immigration detention facilities.
    There was an aspect of this program, though, that was 
particularly troubling. Maria Hinojosa in part of that program 
had a woman who was a victim at this Willacy Facility. She had 
been raped, and her identity was hidden from the camera, and 
she told her story about how it was virtually impossible for 
her to even seek justice in this circumstance because she was 
totally at the mercy of the guards in this privatized facility.
    Now, I joined with Senator Sessions and some of my other 
colleagues in passing the Prison Rape Elimination Act of 2003, 
and I thank Senator Sessions for his leadership on this, to 
eliminate sexual abuse in custody in the United States. We 
wanted to create a zero tolerance policy. The ``Frontline'' 
episode was not the first time we have heard troubling reports 
about sexual abuse suffered by those in immigration detention. 
The National Prison Rape Elimination Commission said in its 
report, ``Accounts of abuse by staff and by detainees have been 
coming to light for more than 20 years. As a group, immigration 
detainees are especially vulnerable to sexual abuse and its 
effect while detained due to social, cultural, language 
isolation, poor understanding of U.S. culture and the 
subculture of U.S. prisons, and the often traumatic experiences 
they have endured in their culture of origin.''
    The Commission issued proposed standards. The Department of 
Justice is now finalizing its national standards to prevent, 
detect, and respond to prison rape. In April of this year, I 
wrote a letter to Attorney General Holder emphasizing the 
importance of strong standards.
    What is the Department of Homeland Security doing to ensure 
that immigration detainees are safe from sexual abuse whether 
they are in ICE facilities or contract facilities?
    Secretary Napolitano. When I took over as Secretary, 
Senator, we found that there were little or no standards being 
applied uniformly across all of the many detention facilities 
that we use in the ICE context. Some of them are public jails, 
like Weber County, as Senator Hatch referred to. Others are 
privatized, companies like CCA. We have to have beds and, in 
particular, given our priorities and how we are managing the 
system, we need beds that are near the southern border.
    We have as part of that process brought in someone to 
actually look at standards, and we redid our contracts with 
some of the private providers. We do have a process by which we 
are regularly auditing and overseeing what is happening there, 
but that is not to say that there are not cases that are 
particularly horrific.
    We also have, Senator, really tried to emphasize the 
availability of visas for those who are victims of crime, 
particularly victims of sexual crime and domestic violence, and 
we are trying to get out into the field the fact of the matter 
that the Congress and the regulations do permit these visas.
    So we will obviously review the documentary that was on 
last night and follow up appropriately.
    Senator Durbin. Please do.
    Secretary Napolitano. And we will keep you posted about 
    Senator Durbin. I am going to send you a letter, and I 
thank the Committee for its patience here. I just want to make 
one last point.
    We spend, annualized, about $40,000 a year for each of 
these detainees when you figure $120 a day is the number that I 
have been told, and I am trying to discount that thinking some 
are probably not that expensive.
    Secretary Napolitano. That is probably a good average 
    Senator Durbin. A good average? $40,000 a year. It is not 
that they are charged with a crime. They are in for a civil 
offense. They have no benefit of counsel, 90 percent of them, 
and very few due process rights, limited command of the English 
language, and they are easily victimized. I think we have a 
responsibility to treat them humanely and fairly in this 
situation. So my follow-up letter to you will not only address 
this issue of standards to protect them from sexual assault and 
rape, but also to go into questions about those with mental 
disabilities who have been brought into this system.
    There was this awful, awful case in San Diego that was 
prosecuted or raised just a few years ago where they have two 
individuals who suffer from serious mental illness who had been 
in the ICE system, lost in the system for 4 years. Four years. 
What I read and learned since the program last night and my 
study, there are totally inadequate medical facilities and 
staff for the people who are in these detention facilities, 
from psychologists and psychiatrists to nurses and dentists.
    I mean, really, if we are going to take the responsibility 
of incarcerating them, we have a responsibility to treat them 
humanely. And I want to work with you to make sure that 
    Secretary Napolitano. I concur. Thank you.
    Senator Durbin. Thank you.
    Chairman Leahy. Thank you very much.
    Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman, and it is a 
criminal offense to enter the United States illegally. It is 
not a civil matter. And we do provide health care for people 
who are captured entering the country illegally that need it, 
do we not, Madam Secretary?
    Secretary Napolitano. Yes, we do.
    Senator Sessions. So here you have got somebody entering 
the country and they have got a health problem, and we 
apprehend them and then we give them health care. I think in 
general they are being treated well. And isn't a fact that 
under Operation Streamline, people that are apprehended and 
prosecuted through a misdemeanor usually, I understand, 
prosecution, unless it is a repeat offense, are deported in far 
less than a year's time?
    Secretary Napolitano. I think that is right, Senator. I 
would have to confirm, but I think that is right.
    Senator Sessions. I think it is except for people from 
distant lands who you have difficulties returning them.
    Secretary Napolitano. The country may not want to accept 
them. That is right.
    Senator Sessions. Madam Secretary, I am very concerned 
about the morale of our ICE officers. I have spent 15 years as 
a Federal prosecutor working with customs officers and Border 
Patrol agents and others. You like to see them motivated, 
excited about their work, believing in their work, and they 
have to believe that people at the top support them and believe 
in the mission they have been given. And there is a real 
problem with this.
    In June of last year, the ICE union cast a unanimous vote 
of no confidence in the Director of Immigration and Customs 
Enforcement, Mr. Morton, and the Assistant Director of ICE 
Detention Policy and Planning, Phyllis Coven. That was just 
last June. And they found that, ``Senior ICE leadership 
dedicates more time to campaigning for immigration reforms 
aimed at large-scale amnesty legislation than advising the 
American public and Federal lawmakers on the severity of the 
illegal immigration problem, the need for more manpower and 
resources within ICE and ICE ERO to address it.'' They are 
currently, they say, ``overwhelmed by a massive criminal 
illegal alien problem in the United States.''
    They go on to say--this was in 2010--``ICE is misleading 
the American public with regard to the effectiveness of 
criminal enforcement programs, like the Secure Communities 
programs, and using it as a selling point to move forward with 
amnesty-related legislation.'' This is their statement.
    Then, again, in June of this year, they report in this 
release, ``ICE Union leaders say that since the no-confidence 
vote was released problems within the agency have increased, 
citing the Director's latest Discretionary Memo as just one 
    ``1A`Any American concerned about immigration needs to 
brace themselves for what's coming,' said Chris Crane, 
president of the National ICE Council which represents . . . 
7,000 ICE agents, officers and employees.'' It goes on to say, 
``This is just one of many new ICE policies [in queue aimed at] 
stopping the enforcement of U.S. immigration laws in the United 
States. Unable to pass its immigration agenda through 
legislation, the administration is now implementing it through 
agency policy.''
    And he goes on to note that while immigrants' rights groups 
and other were involved in this policy, no input in these 
policies was received from the agency and its employees, which 
is one of the previous complaints that they have had.
    So, Madam Secretary, first, are you concerned about this? 
For 2 years now, it appears that the representative group for 
these officers has voted no confidence in your leadership. And 
to what extent have you confronted this question, met with 
them, examined the charges that have been made, and made a 
formal response to them?
    Secretary Napolitano. Well, let me, if I might, Senator, I 
like you have worked as a prosecutor for many years, 
particularly on border and immigration-related matters, and I 
believe that the priorities we have set are actually enhancing 
morale amongst our troops. And I think results matter, and the 
results are really incontrovertible now. We are----
    Senator Sessions. Well, let me say----
    Secretary Napolitano [continuing]. Removing more criminals 
from the United States than at any prior time.
    Now, with respect to priorities that have been set, when 
you actually read what Director Morton sent to the field, he 
refers in that document to a number of prior memos by prior 
directors that were in his or similar positions back in the old 
INS days, and the priorities set are very similar historically. 
And that is because they make common sense, and they reflect 
the reality that we have never had enough resources to remove 
everyone who is in the country illegally. And so you have got 
to have priorities and give guidance to the field across the 
country about what the priorities are.
    Senator Sessions. Well, I am just focusing mainly on the 
problems within the Department. I am told from the leaders of 
the ICE officers that morale is very low, and that they believe 
the new standards calling on them to consider DREAM Act-type 
issues in determining whether or not the person they detained 
ought to be released or not, whether they have got a high 
school diploma or whether or not they might be a witness to a 
crime, that these are very confusing directives and that it 
makes it more difficult for them to act effectively to 
apprehend people here illegally.
    I see you look with--you are very disdainful about----
    Secretary Napolitano. Not disdainful. I am not disdainful--
    Senator Sessions. I would just say that these are people on 
the front lines. You have not been out there having to deal 
with these arrests every day.
    Chairman Leahy. Let the Secretary answer the question.
    Senator Sessions. And I say for me, as a person who has 
worked with Federal agents for years, when you hear this kind 
of comment and votes of no confidence--I have never heard of 
that--you should be paying real attention to them, not rolling 
your eyes at them.
    Secretary Napolitano. I am not rolling my eyes. What I am 
suggesting is that results matter here, and priorities really 
matter, and that the results reflect the priorities we have 
set. And these are priorities that are consistent with prior 
administrations and, indeed, with what I testified to this 
Committee my first months in office, that this is what we were 
going to do.
    Senator Sessions. Well, I am told the ICE carried over from 
last year 19,000 removals, and they are counting them this 
year, and it is sort of a gimmick to making the removals look 
higher than they are. Are you aware of that?
    Secretary Napolitano. Oh, I think what you are referring 
to, Senator, is in the movement from fiscal year 2009 to fiscal 
year 2010, we made the decision that we would not count a 
removal until there was an actual verified departure from the 
country. And that had the effect of moving some removals from 
2009 into 2010 because there was a calendar--you know, there 
was the removal order, but we did not actually verify the 
departure until fiscal year 2010. We have continued that 
practice into fiscal year 2011, so that the comparison between 
the 2010 and 2011 numbers are exactly the same.
    Senator Sessions. What I am hearing is that while claiming 
to arrest more criminal aliens, internal ICE documents show 
that DHS leadership has ordered field officers not to arrest 
fugitives and re-entries, and leadership efforts to conceal 
this from the public have led to confusion in the field. 
Officers are afraid to arrest, and suspected illegals have been 
aggressively pushing back, even showing agents the memo that 
you have. When they stop them, they show the memo and say, 
``President Obama says you cannot arrest me.''
    Secretary Napolitano. Well, if they say that, they are not 
reading it correctly because that is exactly not the case. They 
can be arrested. But at some point in the process, there need 
to be decisions made about who is to be removed.
    Now, we just had a discussion with Senator Durbin about how 
much it costs to detain somebody. It costs in the neighborhood 
of $23,000 to $30,000 to actually remove somebody. That is our 
cost. That does not include Justice Department costs. The 
Congress gives us the ability to finance removals of 400,000 
people a year. We can just remove anybody without any 
priorities, and that would be one way to do it. Or the other 
way and the better way, and probably the way you ran your 
office when you were a prosecutor, is to say we want to focus 
on expediting the removal of those who are criminals, of those 
who are fugitives, of those who are repeat violators, of those 
who are recent entrants, meaning within 5 years, into the 
United States. And what you are now seeing is that the numbers 
reflect those priorities.
    Senator Sessions. Well, you have a problem with morale. I 
am confident--I think the officers feel like you have spent 
more time talking with the activist groups than the officers 
themselves and drafting guidelines that help them do their job.
    Thank you, Mr. Chairman. I am sorry to run over. You were 
    Secretary Napolitano. Thank you, Senator.
    Chairman Leahy. Thank you.
    Senator Coons.
    Senator Coons. Thank you, Madam Secretary, for your 
testimony in front of this Committee and for your disciplined 
and determined leadership of this remarkably far-flung and 
broad agency in these very difficult times. It is always a 
source of some pleasure and pride for me to see a fellow Truman 
Scholar also do well. And as other members of the Committee 
have commented, you face some enormous challenges, and I just 
want to commend you for the work you are doing given the 
limited resources you have got available to you and given the 
great pressures to keep America safe and to secure our borders 
and to respect our Constitution and to advance our national 
    Of the six priority mission areas for DHS, there is one 
that has not been touched on at all, and I wanted to take some 
time with it today, which has to do with ensuring the safety 
and security of cyberspace for the United States.
    I earlier today was at a secure briefing that was hair-
raising--probably not in my case hair-raising, but was deeply 
concerning--about cyber attacks and the coordination between 
the intelligence community and DHS. Recently, a University of 
Delaware instructor, actually the man who also wrote ``Black 
Hawk Down,'' came out with a book, ``Worm: The First Digital 
War,'' which lays out a fairly disconcerting picture of the 
connection between the private sector and Government and how we 
are doing at coordinating our defenses and preparedness.
    Tell me if you would just at the outset how you see your 
Department coordinating with DOD, with the intelligence 
community, and with the private sector in making sure that we 
are sufficiently prepared defensively for the assaults that I 
really think are coming at us on a regular basis.
    Secretary Napolitano. Thank you, Senator. In fact, I was 
just in New York yesterday meeting with a number of individuals 
from the private sector, the financial institution sector, and 
the FBI on how we are coordinating in the protection of the 
cyber networks on which their operations depend.
    We really view ourselves, and I think the analysis is 
coming out and, legislation will come out, that DHS will have a 
primary responsibility with the protection of dot-gov networks 
and with the intersection with the private sector. We also 
through the Secret Service do crimes that are committed on the 
Internet, and we also do through ICE other kinds of things like 
child porn, for example, on the Net.
    But with respect to the protection of critical 
infrastructure networks, that is in our NPPD Division. We have 
a memorandum of agreement with the Department of Defense on 
this, and we also have a memorandum within them as to how we 
can both utilize the technological resources of the NSA.
    This is an area where, in my judgment, we need to grow. I 
think we will have a continuing and expanding threat. There is 
not yet any kind of international framework on which to hang 
our hats, and so there are a lot of challenges here, but it is 
definitely an area that we are moving forward on.
    Senator Coons. Thank you. Two things, if I might. In your 
written testimony, you reference a number of very successful 
partnerships with local law enforcement, with local 
communities, the ``See Something, Say Something,'' Nationwide 
Suspicious Activity Reporting Initiative, the Secure 
Communities Initiative. What do you see as the future role for 
local law enforcement, for local first responder communities, 
and, frankly, for the National Guard and Reserve in providing 
some of the first points of contact and a trained workforce to 
help provide the sorts of security for infrastructure, for 
local communities, and for local government as we build out 
towards a future where you are literally policing an online 
    Secretary Napolitano. Right. We are discussing it with our 
local and private sector partners. But I think this will be a 
unique area for the fusion centers to help. The fusion centers 
are designed to be kind of an all-hazards collocation center. 
Almost all of them now have access to real-time classified 
information. I think through the fusion centers we can expand 
our local and private sector reach into the cyber arena.
    Senator Coons. One of my larger concerns about 
cybersecurity long term is the protection of American 
intellectual property as well. A number of the more egregious 
recent intrusions have been not just to access banking data or 
financial data or to steal people's identities for financial 
gain, but also to download or take very large quantities of 
American innovation and invention. So I just wanted to point 
you to a number of initiatives that folks on this Committee are 
taking. I hope to work with you and your Department in making 
sure that the legal infrastructure we put together makes sense 
and is responsible.
    I am also particularly concerned about infringing 
shipments, so I will move to that for a moment. My impression 
is that there are some ongoing challenges with Customs and 
Border Patrol when it intercepts shipments that it believes 
contain counterfeit goods and whether or not they share that 
information promptly and appropriately with the rights holders 
in a way that allows them to determine whether what is being 
blocked at the border is, in fact, counterfeit. That is 
something that some questions have been raised about whether 
CBP really has the necessary authority to share information 
about suspected infringing shipments with the rights holders 
and whether they can actually successfully protect shipments in 
a timely way. I would be happy to follow up further with your 
office if that is not something that is clear.
    Secretary Napolitano. Let us do that.
    Senator Coons. A last question, if might. The EB-5 
Immigrant Investor Visa Program can be a real opportunity to 
attract to this country foreign nationals with significant 
resources who want to invest them in American companies or in 
American communities. Our State Director of International Trade 
has been trying to be successful in this, but the areas that 
have been most successful have been through regional centers 
where they are able to aggregate significant numbers of EB-5 
applicants. And he has found real difficulty in getting clear 
information about which regional center models are more 
successful, which have had the greatest success, and so I just 
wanted to leave with you a question about whether DHS might 
release more information about which of the regional centers 
and which models have been more successful than others.
    Secretary Napolitano. Yes, Senator, I think we would be 
happy to have someone meet with the individual you refer to and 
really look across the country and see what is going on.
    Senator Coons. And I look forward to questions from my 
colleague about visa programs and how we can help advance 
tourism in the United States. I think there are good 
opportunities for us as well as challenges.
    Secretary Napolitano. Indeed.
    Chairman Leahy. We yield to your colleague from Minnesota, 
Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman.
    Thank you, Madam Secretary, for being here and for the work 
that you are doing every single day. I want to mention two 
things that I do not know have been discussed. I have been here 
for most of the questions, but just first is the good work that 
you have done in our area on flooding issues that FEMA has done 
in the Red River Valley and Administrator Fugate for his 
assistance during the Red River floods. It was very much 
    Secretary Napolitano. Great.
    Senator Klobuchar. And then the second piece of this is the 
work that I do not think many people focus on that you do with 
adoption when things come up and helping parents adopt children 
from other countries and some of the issues that come up. I did 
want you to know--at the last hearing I asked you about a 
family from the Philippines. Senator Sessions and Senator 
Inhofe and I worked together to pass a bill, as you know, which 
allowed older siblings, if they turn 16 or 17, to still be 
adopted if they have a younger sibling that is adopted. This 
literally allowed 10,000 kids retroactively to come into loving 
homes in our country. One of them was the Mikouras family that 
I brought up, and thanks to the help of your agency--they were 
going to have to leave the two older kids that had held this 
family of nine together when the mom died, and thanks to the 
work of your agency, the two older kids were able to get on 
that plane with the family. I met all nine children at a 
celebration in the community, and it would not have happened 
without the work of your agency, so I want to thank you for 
that on behalf of the family.
    Now, I am also on the Commerce Committee, and so I wanted 
to focus on some of those related issues. The first of which I 
know we have been talking about is the aviation security. It 
has been my impression--as someone with a hip replacement, that 
I deal a lot with your TSA people, and there has been a great 
improvement in morale over the last few years. They especially 
appreciate the vocal defense that you and Director Pistole have 
given to them when questions have been raised. And obviously 
questions should be raised, but overall they are protecting the 
security of the people of this country, doing incredibly 
difficult jobs. And the issue that I wanted to raise was just 
the new stick-image body scanner. Obviously that has been a 
concern of some people with the new security that is there. I 
have not had a problem with it at all. I think it is a great 
thing because it goes faster. But could you discuss this new 
software and give your assessment of how it has been working?
    Secretary Napolitano. Yes. We have begun installing 
software that, rather than the smudged photo-like image, is 
just a stick figure, and it identifies where there may be an 
anomaly that requires something needs to be checked. They may 
have forgotten to take something out of their pocket. Initially 
when this was being deployed in, I think it was, Schiphol 
Airport in Amsterdam, there were a lot of false positives. But 
those problems have been rectified, and so we are now in the 
process of installing that type of software throughout the 
    Senator Klobuchar. Good. And what is happening with the 
Pre-Check pilot, which is, I think, implemented to--it is, 
again, some pilots that are going on to speed things along.
    Secretary Napolitano. That is right. ``Pre-Check'' is the 
name for the program. That is the domestic version of Global 
Entry. It is the process by which people can voluntarily 
provide information and biometrics, and then that will help 
speed them through the check-in or the security lines. 
Obviously, one of the issues with the pilots is going to be 
scalability given the number of passengers we have on a daily 
basis. But my initial reports are the pilot is very popular, 
and people really like it.
    Senator Klobuchar. OK. Senator Coons mentioned the tourism 
work. I chair that Subcommittee of Commerce along with Roy 
Blunt, and we just introduced the International Tourism 
Facilitation Act, which we worked with the State Department on 
those issues to make sure that we were doing something that had 
a chance of passing. We have also seen some improvements. We 
are waiting to get the exact numbers in the consulate offices 
on the State Department side and processing some of those.
    As you know, since 9/11 we have lost 16 percent of the 
international tourism market, which is about 467,000 jobs, and 
so while we want to keep all those security measures in place, 
as my colleagues have discussed, we also want to see if there 
are ways, while keeping them in place, that we can make them 
more efficient. Even if we had one more point of that 
international tourism market, it is 167,000 jobs in this 
country, and they are going nowhere else. They are jobs in the 
    And so my question was about the background checks for 
tourist visas. They are performed by the State Department, but 
DHS does play a role in running background checks when a 
tourism B-1 or B-2 visa holder applies for an extension. Are 
you familiar with that? And how can we make that run more 
    Secretary Napolitano. Let me, if I might, Senator, check 
into that and perhaps have someone meet with you. When you say 
``more smoothly,'' that suggests that there are some problems. 
Let us figure that out and see what is going on.
    Senator Klobuchar. Senator Blunt and I view this whole 
thing as workable. We do not want to change your security, but 
we really believe--and it is mostly consulate officers on the 
State Department side--that you can process these faster, and 
this is one issue that has come up with the DHS side. So we 
would love to work with you on it.
    Secretary Napolitano. Right, and as the former Governor of 
a State that was heavily dependent on tourism, I appreciate the 
fact that this is a jobs issue.
    Senator Klobuchar. Yes, it is really a big jobs issue, and 
we are actually excited about the new efforts going on, which 
we have just had no change for the last 2 years, and suddenly 
there seems to be a lot of interest in making some changes. So 
we are excited about that.
    The last thing I just want to follow up on was the 
cybersecurity issue. I share Senator Coons' view that this has 
got to be a public-private partnership. When you look at the 
fact that the private sector owns more than 80 percent of the 
networks, the cyber system networks, what more do you think we 
can do to encourage businesses and institutions to work with 
the Government on cybersecurity challenges?
    Secretary Napolitano. Well, I think this is one of the key 
issues that the Congress will have to take up when it takes up, 
hopefully, cybersecurity legislation. But the extent to which 
particularly private business that is controlling critical 
infrastructure of the country should give notice if there has 
been an intrusion or an attack, what kind of notice, how is it 
shared, what is the Government's role, is this an incentive, is 
it a mandate, these are all things, I think, that are 
appropriate for Congressional resolution.
    Senator Klobuchar. I think people were kind of shocked a 
few weeks ago, months ago, when that one worker working on the 
power grid--was that in Arizona?
    Secretary Napolitano. It was in southwest Arizona, yes.
    Senator Klobuchar. OK, not to mention Arizona in that 
light, but that the power grid had gone down, affecting the 
power for people in Southern California and other places. And I 
do think more has to be done to protect the power grid and what 
should our priorities be there, and I am looking at this from a 
cybersecurity issue. Obviously, that was an accident, but it 
does highlight that we should be doing more.
    Secretary Napolitano. Right. That was a situation where I 
think 2 million people were without power for 6 hours because 
of the accident of one worker. So I have asked my staff to look 
into what actually happened and why there were not redundant or 
fail-safe systems in place to deal with that.
    Senator Klobuchar. OK. Thank you very much. And I also 
have--I noted Senator Schumer discussing his Buffalo bridge. I 
have a few questions that I do not know that the other Senators 
would really care to hear about with northern Minnesota, and so 
I will put those on the record and ask that you answer them at 
a later time. Thank you.
    Secretary Napolitano. I would be happy to. Thank you, 
    Senator Klobuchar. Very good.
    Senator Klobuchar. Thank you.
    Chairman Leahy. I would note to the distinguished Senator 
from Minnesota that it is not without precedent that questions 
that may appear to be parochial have been asked here.
    Senator Klobuchar. Well, I think I have asked a few of 
them, Mr. Chairman.
    Chairman Leahy. Note the one about maple syrup earlier.
    Senator Klobuchar. I think I have asked a few, but I really 
appreciated the earlier answers, and I know my colleague 
Senator Whitehouse is here, so I will ask those on the record.
    Chairman Leahy. I would also note that there has not been a 
single time that I have called the Secretary that I have not 
been able to get a response. So this is not a Department where 
we have a difficult time getting answers. She has always been 
    Secretary Napolitano. Thank you, sir.
    Chairman Leahy. Senator Whitehouse.
    Senator Whitehouse. Thank you, Chairman.
    Madam Secretary, your remarks about the cybersecurity 
legislation that we ought to be and shall be undertaking fairly 
soon make a good segue into my questioning. Let me first ask 
you what level of urgency and dispatch would you advise that we 
proceed to this legislation with.
    Secretary Napolitano. I would hope that you proceed 
quickly. This is an area that is evolving very rapidly. I think 
having a basis in statute for jurisdiction, authorizations, and 
the like is very important. Work has been done on the Senate 
side. Work has been done on the House side. I would hope that 
Congress can move very quickly to resolve this and give us a 
    Senator Whitehouse. And you hope that we can do it quickly 
because what?
    Secretary Napolitano. Well, because this is an area that 
deserves some foundation in statute. Right now we are moving 
administratively, and things are moving, and they are moving 
expeditiously. But it does seem to me that there is a lot 
happening here, which ultimately needs to be established not 
just jurisdictionally but fiscally as well. And so this is 
something that Congress is going to have to take up.
    Senator Whitehouse. Do you think that the legislation that 
has been proposed, the ideas that have been proposed, 
particularly for allowing more protection, more Government 
support for protection of our critical infrastructure can be 
implemented quickly and will make a real difference in terms of 
the safety and security of the American people?
    Secretary Napolitano. I believe so. But I want to be frank 
with you, Senator. One of the areas where the Department of 
Homeland Security needs to keep expanding its capacity and 
capability is in cyber. It is very difficult to hire 
professionals in this area. There is a lot of competition for 
these individuals. It is one of the reasons we initially made 
the decision that we would not try to replicate a civilian NSA 
with a military NCS, that there would be arrangements made to 
share some of that technological expertise. But this is an 
area, even in a period of restrained fiscal resources, that 
needs a focus.
    Senator Whitehouse. At the moment, if our NSA folks were 
aware of an attack that was targeting, say, an American bank, a 
financial processing center, an electric utility network, would 
they need, would you need the kind of authorities that this 
legislation can provide in order to be able to intervene and 
protect that civilian infrastructure?
    Secretary Napolitano. Senator, it is hard for me to answer 
that hypothetical as posed. What I can say is right now, 
particularly with the financial institution sector, we have a 
lot of cooperation. Whether we have the authority of command 
and control ultimately in the event of an attack, no, that 
would be something that needs to be looked at legislatively.
    Senator Whitehouse. So, hypothetically, the Government 
could be aware of an attack that was taking place, but be 
unable to do anything as the Government to respond and head off 
    Secretary Napolitano. Again, Senator, I am reluctant to 
answer the hypothetical as posed because in those extreme 
events, my experience now over the last years as Secretary is 
that, statute or no statute, we work things out. But the world 
would definitely be a better, more clear and focused place if 
we had a basic cyber statute to work from.
    Senator Whitehouse. Well, I will leave it at that.
    Thank you, Chairman.
    Chairman Leahy. Well, thank you. Senator Whitehouse has 
worked a great deal on this, and we are actually having a 
meeting, I think this afternoon, with some of us on 
cybersecurity. We passed a bill out of this Committee. There 
are other committees--Intelligence and Commerce and others--
that are involved. I think we have to do it.
    I am not as concerned now that somebody is going to try to 
hijack the passenger plane as much as I am that in the middle 
of the winter, when it ranges from 10 above to 30 below zero 
throughout the Northeast, and all the power grids get shut off 
through a cyber attack. You are talking about hundreds of 
thousands of people could die if it lasted any period of time.
    What happens if our air traffic control is turned off? Not 
only the image it would give to the rest of the world, but the 
huge, huge commercial disruption, plus the very real 
possibility of loss of life, depending upon where the planes 
are and what the weather is.
    These are things we have to look at. Communications, for 
example. What if all the phones all go dead? We move trillions 
of dollars worth of commercial activities each day in this 
country and overseas. If commercial transactions are closed 
down here or closed down overseas, these are things that we 
have to worry about.
    Secretary Napolitano. That is true.
    Senator Whitehouse. If I could add, Mr. Chairman, it is not 
only the risk of cyber sabotage to our critical infrastructure 
in finance and the electronic grid and communications, the 
places that you mentioned; it is also the question of the 
private sector's intellectual property being stolen and 
siphoned out through the Internet by some of our major 
international competitors in order to avoid either having to 
pay licensing fees to Americans who design stuff or to do their 
own research and development. How much more easy it is to hack 
into an American corporation's database and simply siphon out 
their trade secrets and rebuild a factory of your own. And it 
is being done by the terabyte. I contend that we are on the 
losing end of the single greatest transfer of wealth through 
piracy and illicit behavior in the history of humankind, and we 
are doing awfully little about it. Frankly, I had hoped to hear 
a little bit stronger clarion call from the Secretary about the 
urgency of passing this legislation and the kind of change that 
it can make if we get it passed.
    Secretary Napolitano. Well, if I might----
    Chairman Leahy. And, remember, a lot of these attacks are 
state-sponsored. Everybody wants to dance around that, and we 
will not go into it more, but some of it is state-sponsored. 
And that is a form of warfare, one way of looking at it.
    You wanted to say something, Madam Secretary?
    Secretary Napolitano. I just wanted to clarify, Senator, I 
hope my answer did not suggest to you at all that we do not 
view this as urgent legislation. We do. The Department has 
participated, I think, in 80-some-odd briefings about the need 
for the legislation. We have testified 20 different times about 
the need for the legislation. We have participated heavily in 
the drafting of the legislation. We obviously believe there is 
an urgent need for the legislation.
    I was interpreting your question as what are you doing now 
and how are you getting by, but the plain fact of the matter is 
that our authorities, our jurisdiction, and moving forward the 
path would be much more clear, and there is an urgent need for 
legislation in this regard. And I am hopeful now that both 
chambers have been addressing this. That this is one area where 
the Congress is able to move.
    Senator Whitehouse. Good. It did sound a bit tepid, so I am 
glad you clarified your remarks, and I appreciate it.
    Secretary Napolitano. You bet.
    Chairman Leahy. Well, thank you. I understand that we are 
going to have votes here very soon, so I will wrap this up. I 
am going to have questions for you about the Secure Communities 
Task Force. I want to have a written response on that, and I 
have asked you previously about how DHS handles cases of U.S. 
citizens arrested and detained by ICE. I would like statistics 
on all U.S. citizens arrested under Secure Communities, the 
duration of their custody, and the resolution of these cases.
    [The information referred appears under questions and 
    Chairman Leahy. I thank you very much. Do you want to add 
anything else?
    Secretary Napolitano. No, Mr. Chairman. I have enjoyed 
being the witness here today.
    Chairman Leahy. Yes, I am sure.
    Chairman Leahy. Thank you. That would fall under ``a New 
England understatement.'' Thank you very much.
    Secretary Napolitano. Thank you very much, Mr. Chairman.
    [Whereupon, at 12:07 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record