[Senate Hearing 112-621]
[From the U.S. Government Publishing Office]
S. Hrg. 112-621
OVERSIGHT OF THE U.S. DEPARTMENT OF HOMELAND SECURITY
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HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
APRIL 25, 2012
__________
Serial No. J-112-73
__________
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York JON KYL, Arizona
DICK DURBIN, Illinois JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
AL FRANKEN, Minnesota MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 217
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa,
prepared statement............................................. 209
WITNESSES
Napolitano, Janet, Secretary, U.S. Department of Homeland
Security....................................................... 4
QUESTIONS AND ANSWERS
Responses of Janet Napolitano to questions submitted by Senators
Whitehouse, Sessions, Franken, Grassley, and Leahy............. 44
Question 12, December 15, 2011, Final Report................. 116
Question 27, Memorandum of Understanding..................... 200
Question 31, I-765 Application for Employment Authorization.. 202
SUBMISSIONS FOR THE RECORD
Napolitano, Janet, Secretary, U.S. Department of Homeland
Security, statement............................................ 219
Peacock, Nelson, Assistant Secretary for Legislative Affairs,
Homeland Security, Washington, DC, April 24, 2012, letter...... 243
OVERSIGHT OF THE U.S. DEPARTMENT OF HOMELAND SECURITY
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WEDNESDAY, APRIL 25, 2012
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 9:33 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, Franken, Coons, Blumenthal, Grassley,
Sessions, Kyl, Graham, Cornyn, and Lee.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning. We will let the photographers
get all their shots, but then I am going to ask you, once you
have done that, to step back so we can get started.
OK. I think we can get started. Senator Graham is here. I
know Senator Schumer dropped in briefly before from the Rules
Committee and will be back. Senator Grassley has told me he is
over on the House side--is that correct?--and will be joining
us. Senator Kyl is here. Senator Grassley said to go ahead, and
we will.
Secretary, you know Senator Kyl is from the State of
Arizona, I believe.
Secretary Napolitano. I think we know he is.
[Laughter.]
Chairman Leahy. Yes, I suspect you do.
I want to welcome Secretary Napolitano back to the
Judiciary Committee. We are continuing our important oversight
of the Department of Homeland Security. She has testified here
before, and I think I can speak for every member of the
Committee that she has also been responsive if we have called
with questions in between the testimony.
This is our oversight of the Department of Homeland
Security and the work that the women and men of the agencies
within the Department do every day to keep Americans safe.
Now, much attention has been focused on an incident prior
to President Obama's attendance at the recent Summit of the
Americas in Cartagena, Colombia. I have spoken a number of
times with Secret Service Director Sullivan about this. In
fact, we met privately for about an hour yesterday, and we
probably have been on the phone half a dozen or a dozen times.
I have known the Director from the time when he was an agent. I
knew him when President Bush appointed him as Director of the
Secret Service and when President Obama reappointed him. I know
that he shares my view that the alleged conduct was
unacceptable. I think he is doing all he can to ensure a timely
and thorough investigation and accountability for behavior that
failed to meet the standards he expects and certainly the
standards that the President of the United States and the
American people deserve. He has taken action on 12 agents who
it is claimed have been involved in misconduct.
Last week, I arranged for a bipartisan briefing for
Judiciary Committee staff, Republican and Democratic, with the
Secret Service and officials of the Department of Homeland
Security's Office of Inspector General. I have asked the
Director to be sure he is available to members of this
Committee as the investigation continues. He assured me he will
be and that he will make sure that we know exactly when they
finish the investigation and everything they have found.
Now, I have no doubt you are treating this situation with
equal seriousness. Certainly in my conversations with you, you
have talked a great deal with the Director during this time.
Nobody wants to see the President's security compromised;
nobody wants to see America embarrassed.
I pointed out to the Director that not only does the Secret
Service protect the President of the United States, but they
are also going to be and are protecting the man who is going to
be the Republican nominee for President, Governor Romney. I
cannot think of anything, aside from the personal tragedy, that
would look worse to the rest of the world if something happened
either to President Obama or Governor Romney, especially during
a Presidential election. I think everybody here would agree
with that.
Now, you told us at your first appearance as Secretary you
would focus on using limited Federal law enforcement resources
in a smarter, more effective manner when enforcing our
immigration laws. You and Immigration and Customs Enforcement
Director John Morton are following through. The implementation
of ICE's prosecutorial discretion policy is a positive step
forward. If this new policy has the effect of apprehending more
individuals who are legitimate threats to public safety and
providing some measure of relief to those who pose no threat,
then that is an improvement. And you are standing by your
commitment to focus first and foremost on the most dangerous
among the undocumented population. Mr. Morton was in Vermont,
and we discussed that then, too.
And I think you are doing the best you can in the absence
of Congress taking up meaningful and comprehensive immigration
reform. As you know, I supported President Bush's efforts for
meaningful and comprehensive immigration reform, and I still
would like to see that. Even though that has very little impact
on my State of Vermont, it has an enormous impact on the rest
of the country.
In fact, as we hold this hearing today, the Supreme Court
is hearing argument on the constitutionality of an Arizona
immigration enforcement law. The Constitution of the U.S.
declares that Congress and the Federal Government shall have
the power to establish a uniform ``Rule of Naturalization. ``So
national immigration policy is properly a subject we should act
upon. It should not be left to a hodgepodge of conflicting
State laws. I hope we can get back to where we can do good,
strong, comprehensive, bipartisan immigration policy.
In 2010, we passed an emergency appropriations measure to
provide $600 million for border security enhancements. You have
reported that we have made significant strides there. I
understand that illegal border crossings on the southern border
have declined, and we have seen steady increases in the numbers
of Border Patrol and Customs and Border Protection officers
monitoring our borders. And I take special notice as well that
you are working with Canadian officials on the Beyond the
Border Initiative, coordinating on our shared northern border,
and I am impressed with that.
If I can be parochial--and it is very rare that somebody is
parochial in any one of these committees, but in Vermont, many
people look forward to our friends from Canada visiting and
enjoying all that Vermont has to offer. And at least when I was
a youngster, if you just felt like going to a different--
another State, it is that easy going back and forth across the
border. We take that for granted, and I hope that we can work
on that--to protect our security but keep that border as open
as possible.
I was pleased to see that the EB-5 Regional Center Program
was among your recommendations and those of the President's
Council on Jobs and Competitiveness. We have worked with that
in Vermont. I look forward to working for reauthorization of
this program. Senator Grassley and I have been working together
to get this and other expiring visa programs reauthorized in a
bipartisan manner. I will continue to work with you and with
USCIS Director Mayorkas to strengthen and improve the EB-5
program.
I have raised the issue of screening procedures and
technology in our airports. I continue to have questions about
these policies, their impact on the privacy and health of
Americans, and whether this technology is the most effective
use of resources. Obviously, when you see an elderly person in
a wheelchair going through all kinds of screening, I am not
quite sure how that is keeping us safer, but we can talk about
it.
I want to make sure that as we go to national cybersecurity
we protect our rights and civil liberties. And, finally, I want
to commend the women and men who work in the agencies of your
Department. I have met so many of them, all different branches.
I know they work very, very hard and care about our country.
Many are Vermonters who are working hard to adjudicate
immigration benefits at the Vermont Service Center, but that
can be said of all our States. We will expand the workforce in
St. Albans, Vermont, the Vermont Service Center, but I just am
constantly impressed every time I see the men and women that
work there.
In the absence of Senator Grassley, Senator Kyl, did you
wish to make an opening statement before we go to the
Secretary?
Senator Kyl. No, Mr. Chairman. I think we want to hear from
the Secretary, and then we will all have questions, but thank
you.
Chairman Leahy. Well, Madam Secretary, the floor is open to
you, and then we will go to 7-minute rounds. We will rotate in
the usual manner from side and side in the order in which
people arrived.
Secretary Napolitano, please go ahead.
STATEMENT OF HON. JANET S. NAPOLITANO, SECRETARY, U.S.
DEPARTMENT OF HOMELAND SECURITY
Secretary Napolitano. Thank you, Chairman Leahy and members
of the Committee. I am pleased to be with you today, and I
thank the Committee for your support of the Department over
these past 3 years and, indeed, since the Department was
founded more than 9 years ago.
Before I begin, I want to address the allegations of
misconduct by Secret Service agents in Colombia. The
allegations are inexcusable, and we take them very seriously.
Since the allegations first surfaced, I have been in close
touch with Director Sullivan. The Director took immediate
action to remove the agents involved, and a full and thorough
investigation is underway to determine exactly what transpired
and actions we need to take to ensure that this kind of conduct
does not happen again.
Director Sullivan has the President's and my full
confidence as this investigation proceeds. The investigation
will be complete and thorough, and we will leave no stone
unturned.
Thus far, the investigation has implicated 12 Secret
Service personnel. Eight individuals are now separated from the
agency. The Secret Service is moving to permanently revoke the
security clearance of another, and three of the employees
involved have been cleared of serious misconduct but will face
appropriate administration action. At this time, therefore, all
12 Secret Service personnel identified in the investigation
have either faced personnel action or been cleared of serious
misconduct.
Let me be clear. We will not allow the actions of a few to
tarnish the proud legacy of the Secret Service, an agency that
has served numerous Presidents and whose men and women execute
their mission with great professionalism, honor, and integrity
every single day. I have nothing but respect for these men and
women, many of whom put their own lives at risk for the
President and many other public leaders.
We expect all DHS employees, in the Secret Service and
throughout the Department, to adhere to the highest
professional and ethical standards, and we will continue to
update the Committee as the investigation proceeds and more
information becomes available.
Let me now move to the Department's progress since 9/11.
Ten years after the terrorist attacks of September 11, America
is stronger and more secure today thanks to the support of the
Congress, the work of the men and women of the DHS, and our
Federal, State, and local, partners who work across the
homeland security enterprise.
As I have said many times, homeland security begins with
hometown security. As part of our commitment to strengthening
hometown security, we have worked to get information, tools,
and resources out of Washington, D.C., and into the hands of
State and local officials and first responders.
This has led to significant advances. For example, we have
made great progress in improving our domestic capabilities to
detect and prevent terrorist attacks against our people, our
communities, and our critical infrastructure. We have increased
our ability to analyze and distribute threat information at all
levels through fusion centers, the Nationwide Suspicious
Activity Reporting Initiative, the National Terrorism Advisory
System, and other means.
We have invested in training for local law enforcement and
first responders in order to increase expertise and capacity at
the local level. We have supported preparedness and response
across our country through approximately $35 billion in
homeland security grants since 2002. And we have proposed
important adjustments to our grant programs for fiscal year
2013 to continue to develop, sustain, and leverage these core
capabilities.
Our experience over the past several years has made us
smarter about the terrorist threats we face and how best to
deal with them. We have learned that an engaged, vigilant
public is essential to efforts to prevent acts of terrorism,
which is why we have continued to expand the ``If You See
Something, Say Something'' campaign nationally.
We have also expanded our risk-based, intelligence-driven
security efforts across the transportation sector, the global
supply chain, and critical infrastructure. By sharing and
leveraging information with our many partners, we can make
better informed decisions about how to best mitigate risk.
Over the past several years, we also have deployed
unprecedented levels of personnel, technology, and resources to
protect our Nation's borders. These efforts, too, have achieved
significant results, including historic decreases in illegal
immigration as measured by total apprehensions and increases in
seizures of illegal drugs, weapons, cash, and other contraband.
In fact, illegal immigration attempts are at their lowest
levels since 1971 while violent crime in U.S. border
communities has remained flat or has fallen over the past
decade.
We also have focused on smart and effective enforcement of
immigration laws while streamlining and facilitating the legal
immigration process. Last year, ICE removed record numbers of
illegal aliens from the country, 90 percent of whom fell within
our priority categories of criminal aliens and repeat
immigration law violators, recent border entrants, and
immigration fugitives. We have focused on identifying and
sanctioning employers who knowingly hire workers not authorized
to work in the United States.
We have made important reforms in our immigration detention
system so that every individual in custody is treated in a
fair, safe, and humane manner consistent with ICE detention
standards. And we have worked to reduce bureaucratic
inefficiencies in visa programs, streamlined the path for
entrepreneurs who wish to bring business to the United States,
and improved systems for immigration benefits and services.
In the critical area of cybersecurity, we also continue to
lead the Federal Government's efforts to secure civilian
government networks while working with industry, State, and
local governments to secure critical infrastructure and
information systems. We are deploying the latest tools across
the Federal Government to protect critical civilian systems
while sharing timely and actionable security information with
public and private sector partners to help them protect their
own operations. With these partners, we are also protecting the
systems and networks that support the financial services
industry, the electric power industry, and the
telecommunications industry, to name just a few.
We stand ready to work with the Congress to pass
legislation that will further enhance our ability to combat
threats in the cyber domain. Specifically, we support
legislation that would, among other things, establish baseline
performance standards for the Nation's critical core
infrastructure; remove barriers to information sharing between
Government and industry so that we can more quickly respond to
and mitigate cyber threats or intrusions; ensure robust privacy
oversight to ensure that voluntarily shared information does
not impinge on individual privacy and civil liberties,
including criminal penalties for misuse; and provide DHS with
the hiring flexibility to attract and retain the cybersecurity
professionals we need to execute our complex and challenging
mission.
Mr. Chairman, threats against our Nation, whether from
terrorists, criminals, or cyber adversaries, continue to
evolve. And DHS must continue to evolve as well. I look forward
to working with you and members of the Committee to build on
the progress we have achieved across these and many other
mission areas. We remain ever vigilant to threats as we
continue to promote the free movement of goods and peoples
essential to our economy and protect our essential rights and
liberties.
Thank you, Mr. Chairman.
[The prepared statement of Secretary Napolitano appears as
a submission for the record]
Chairman Leahy. Thank you, and, of course, we will put your
full statement in the record.
As I told you, with our jurisdiction over the U. S. Secret
Service, we did want to ask you some questions there. I am, of
course, like all Americans, concerned about the safety of our
President, whether it could have been jeopardized by this kind
of behavior, just as I am concerned about the safety of any of
the protectees. I mentioned Governor Romney, but there are
several others.
The misconduct we have heard about, did that pose any risk
to the President's security when in Colombia or to national
security?
Secretary Napolitano. Mr. Chairman, that was my first
question to Director Sullivan when he called me, and the answer
is no, there was no risk to the President.
Chairman Leahy. And you made that assessment?
Secretary Napolitano. Yes, based on the information
supplied to me by the Director.
Chairman Leahy. And is the Secret Service coordinating its
internal investigation with the Department of Defense or any
other U.S. agency that might have been involved in Cartagena
preparing for the President's arrival?
Secretary Napolitano. Mr. Chairman, we are coordinating the
investigation with the Inspector General. We have an existing
MOA with the IG, between the Secret Service and the IG, so they
are, in effect, supervising the investigation even though it is
being done by Secret Service agents.
Chairman Leahy. And was there any evidence that the
President's advance team was involved in this misconduct?
Secretary Napolitano. I have not been informed of any such
evidence.
Chairman Leahy. And as we continue to look at this, we know
the agents are trained as to what is acceptable and what is
unacceptable. Are there standards in place governing
appropriate conduct for agents on foreign trips and how they
may interact with locals when they are on foreign assignments?
And if there are such standards, how are they conveyed to the
agents?
Secretary Napolitano. There are standards. They are
conveyed through training and through supervision. But one of
the things we are doing, Mr. Chairman, is looking at the
standards, the training, the supervision to see what, if
anything, needs to be tightened up, because, again, we do not
want this to be repeated.
Chairman Leahy. Well, is there training given to agents
relating to private or intimate contact with foreign nationals
when traveling for security work?
Secretary Napolitano. The training is focused on
professionalism, on conduct consistent with the highest moral
values and standards, and I think that would include your
question.
Chairman Leahy. Well, Madam Secretary, I know that when we
travel, when Members of Congress travel to different countries
we go to, we are given security and foreign intelligence threat
advisories. I have been in some countries where, for example,
we will leave all our communication gear dismantled with U.S.
security officers and so forth. Are agents given training in
security and foreign intelligence threats for a particular
country they might go into?
Secretary Napolitano. I think that is part of the advance
process, Mr. Chairman.
Chairman Leahy. So if they thought there was an
intelligence threat in a particular country, they would be
advised of that?
Secretary Napolitano. Yes.
Chairman Leahy. And I began my career here during the cold
war period. Some of the assessments we were given then are
somewhat different than they are today, but then some of the
assessments today because of our increased types of
communication gear and electronic gear are different. I assume
that is geared based on today's real threats?
Secretary Napolitano. Yes. You mean how to secure our
communications equipment and the other types----
Chairman Leahy. I mean what things an individual must look
for. Is this a country that--are they going to be a threat from
agents of another country?
Secretary Napolitano. The agents are informed as to what
the intel is, what country-specific measures need to be taken.
And, again, in this instance, Mr. Chairman, there was no
impinging on the security of the President and no access to any
secure information by the people involved.
Chairman Leahy. You know, like you, I have been in many
occasions where the Secret Service is around. I have watched
very professional men and women. I have traveled with several
different Presidents over the course of my career and have
watched the Secret Service, again, with very professional men
and women there. So when I heard the number of the agents
involved in this, I found it particularly alarming when I got
my first call at home from the Director and then as my staff
looked into it and the bipartisan staff of the Committee looked
into it. I found the numbers shocking.
Do you know, is this the first time something like this has
happened, or have you had reports of similar incidences in the
past?
Secretary Napolitano. Mr. Chairman, I asked the same
question, and over the past 2\1/2\ years, the Secret Service
Office of Professional Responsibility has not received any such
complaint. Over that same period, the Secret Service has
provided protection to over 900 foreign trips and over 13,000
domestic trips. So from that standpoint, there was nothing in
the record to suggest that this behavior would happen, and it
really was, I think, a huge disappointment to the men and women
of the Secret Service to begin with who uphold very high
standards and who feel their own reputations are now besmirched
by the actions of a few.
Chairman Leahy. Well, and to the extent that any of them
are listening to this hearing, I would hope they will not be
distracted from their jobs, those who are protecting Governor
Romney and those who are protecting President Obama, and all
the other protectees. That is going to be their first
responsibility.
But then you and the Director have the job of seeing where
we go from here. Can you assure us that it will be made very
clear to Secret Service agents in their training elsewhere that
this kind of conduct will not be condoned?
Secretary Napolitano. That is our goal, Mr. Chairman. There
are really three things that I immediately discussed with the
Director: one was to make sure the President's security was
never at risk; two was to make sure that we instituted a prompt
and thorough investigation into the actual allegations in
Colombia; and, three, what other steps we need to take for the
future to make sure this behavior is not repeated.
Chairman Leahy. On a different matter, we are going to turn
to the reauthorization of VAWA, the Violence Against Women Act.
A provision in this year's reauthorization would modestly
increase the number of U-visas, the temporary visas available
to immigrant victims who have cooperated with law enforcement
officers in the prosecution of criminal offenses. Sometimes
they are our best sources of information, including domestic
violence and sexual assault cases. I have heard from law
enforcement all over the country saying they support this.
Does the Department of Homeland Security support this
provision of this increase of U-visas for the purpose of
cooperating in criminal cases?
Secretary Napolitano. Absolutely.
Chairman Leahy. Thank you. And I have told you--and I
realize I have gone over my time, but we have the question I
have raised with you before about the technology used for
screening. I was very concerned about the earlier ones that the
X-ray type machines that, in effect--my words, not yours--did a
virtual strip search of people with very graphic images of the
people going through.
Now, those first machines, how much did DHS spend on
acquiring them?
Secretary Napolitano. Well, Mr. Chairman, the machines
themselves are at a unit cost of approximately $175,000.00 and
we can get you the exact number, but I think the expenditure is
probably total, with some installation and other things, about
$130 million.
Chairman Leahy. And then the changes, I am told the
changes, after the reaction on the original ones, the
retrofits, that upgrades cost about $12 million?
Secretary Napolitano. Well, I am not sure they cost that
much because part of the criteria with the vendor was as the
software changed, the hardware would be able to accept the
software. But I will verify if it was $12 million or not.
Chairman Leahy. What companies were awarded contracts to
provide this?
Secretary Napolitano. Rapiscan and L-3 are the two major
vendors.
Chairman Leahy. Senator Graham, I apologize for taking the
extra time. Please go ahead, sir.
Senator Graham. Welcome, Madam Secretary. I have really
enjoyed working with your office on things unique to South
Carolina and the country's security issues as a whole. My
experience with the Secret Service is very similar to what
Senator Leahy said. Really, it is basically the time I traveled
with Senator McCain during the last Presidential election, and
I was very impressed by the people, very hard-working, a lot of
time away from families and long hours. So anytime you have
military discipline problems, you do not want to paint with a
broad brush the 99 percent, and let us start with that
baseline.
Secretary Napolitano. I concur, yes.
Senator Graham. But just like in the military, Abu Ghraib
and other situations, systems obviously fell then, and
obviously there is a system failure here. The likelihood that
this was the first and only time that such behavior occurred,
do you think that is great or not so great?
Secretary Napolitano. Well, I think part of our
investigation is confirming that this was an aberration or not.
But I agree with you, Senator. The Secret Service does a
marvelous job. I have worked closely with them and----
Senator Graham. The only reason I suggest that we need to
maybe look at little harder is because we are lucky to have
found out about this. If there had not been an argument between
one of the agents and, I guess, a prostitute, for lack of a
better word, about money, we would probably have never known
about this. So the point is that I think you have got a good
order and discipline problem.
Do you believe the agent were confused that their conduct
was wrong?
Secretary Napolitano. They should not have been.
Senator Graham. No, I do not think it is a lack of
training. I do not think anybody----
Secretary Napolitano. You know, I think the conduct was
unacceptable, it was unprofessional.
Senator Graham. Right.
Secretary Napolitano. And as I said in my statement, I
think that the people who are most disappointed are the other
men and women of the Secret Service.
Senator Graham. I could not agree more, but, you know,
human beings being human beings, we all make mistakes, and
sometimes organizations can get loose. Being a military lawyer
for 30 years, one of the first things that we would advise new
commanders, a new squadron commander, is: You have got a bunch
of young people in the military for the first time away from
home. Go to the barracks 1 day they least expect you to go.
Show up at 3 in the morning with the first sergeant, and word
will get out pretty quick you have got to watch what you do in
the barracks because you never know when the commander is going
to show up.
Is there any similar program where supervisors from the
home duty station would go out and visit people in the field on
a random basis?
Secretary Napolitano. You know, I am not aware of that,
which is not to say there is not one. I just do not know the
answer. That is one of the reasons that we are continuing our
work and want to continue to brief the Committee.
Senator Graham. Could I suggest that you may look at a
program very similar to what the military does where people
from the command, the central body, would show up on an
unannounced basis throughout the world and just let people know
that somebody back home is watching. It might do some good in
the future.
Is there any exit interviews done for people who are
leaving the organization when you ask them, ``Does anything
bother you, have you seen anything during your time that
bothers you? '' Because we do that in the military trying to
find out how the unit actually works when people are leaving.
Secretary Napolitano. Right, in a civilian agency. Senator,
I know there are exit interviews done. Whether that specific
question is asked or something like it, again, I do not know
the answer, but I can find the answer out for you.
Senator Graham. I would just suggest that maybe we look at
changing the system a bit so that people who are away from home
never really believe they are away from home, that somebody is
always watching.
Secretary Napolitano. Senator, we are looking at this from
the aspect of, as I said earlier: one, was the President's
security impinged; two, discipline for the agents involved;
and, three, what do we need to do to tighten any standards that
need to be tightened. So I take your suggestions very
seriously.
Senator Graham. Right, and I think this is a bipartisan--
you, know, Mr. Sullivan, I have never met the MA, but everybody
who knows him seems to have nothing but good things to say
about him, and we want to get this behind us and not have the
problem emerge again.
Homegrown terrorism, you mentioned that in your opening
statement. Would you agree that probably the idea of homegrown
terrorism and attack from within is greater today than it was,
say, maybe 5 years ago, the radicalization?
Secretary Napolitano. I think that is right. I think we
have seen--when I say terrorism continues to evolve, that is
one of the evolutions that we are seeing, radicalization--
radicalization to the point of terrorist violence--and we have
seen several episodes across the United States in the past
several years.
Senator Graham. Let us go to the recent tragedy in France
where you had a young French citizen, a Muslim, who went to, I
think, Pakistan to study at a madrassa there, came back to
France and engaged in horrific acts of terrorism. Do you worry
about that happening here in the United States?
Secretary Napolitano. One of the things we did in the wake
of the Merah incident in Toulouse was to analyze what happened
in that case and were there any early signs, indicators,
anything that would give us an early tripwire that somebody in
the United States was getting ready to do the same thing.
Senator Graham. Well, I think some of these terrorist
organizations are actually trying to come to our country and
recruit within our own. Is that a fair statement?
Secretary Napolitano. I think there is recruitment. It does
not really require a visit. You can do it online.
Senator Graham. That is exactly right. You do not have to
come here. But you can talk to our people through the Internet
and through the cyber world to try to recruit them to their
cause. And, unfortunately, there are some takers, and we need
to be vigilant about that.
Now, immigration is--we have got a case before the Supreme
Court today. Each person can make their own mind up about, you
know, South Carolina, Arizona, and the laws and what we need to
be doing. But President Obama in his campaign in 2008 promised
comprehensive immigration reform in his first year. Do you
believe there was a real genuine effort to make that happen?
Secretary Napolitano. As someone who spent a lot of hours
visiting Members of Congress on the Hill to see if there was
any room for negotiation of a comprehensive bill, I would say,
yes, there was a serious effort.
Senator Graham. So it is Congress' fault?
Secretary Napolitano. Senator, I think all of us have a
responsibility to deal in a bipartisan way with a national
problem.
Senator Graham. Well, we did not deal in a bipartisan way
with health care. Not one Republican in the Senate voted for
the health care bill. You had 60 U.S. Senators on the
Democratic side. You had a huge majority in the House. So I
guess my point is that I do not believe there was much of an
effort to deliver comprehensive immigration reform in the first
year, and I do not think it is Congress' fault. I think the
President failed the country by not making this a priority. He
had a large majority he could have worked with, and he chose
health care over immigration. And here we are. So not to say
that my party is blameless. We are not. But I just want to
understand that when people talk about this issue that we
remember exactly what happened--60 Democratic Senators, a large
majority in the House. Do you remember any bills coming out of
the House of Representatives dealing with immigration reform?
Secretary Napolitano. You know, Senator, I am not familiar
with any, and I obviously disagree with kind of how you are
putting the issue, but I think we can both agree that at some
point we are going to have to deal with comprehensive
immigration reform.
Senator Graham. Thank you very much for your service.
Chairman Leahy. Thank you. I would just note
parenthetically, I sat in on the meetings with former President
Bush on immigration reform. I strongly supported his efforts. I
sat in on the bipartisan meetings that President Obama had with
some of the same people who were at the President Bush ones in
the follow-up, and I recall being told, ``Do not bring it up
because it is not going to go anywhere. ``But I hope, and I
still hope, at least while I am still in the Senate, that we
will have comprehensive immigration policy. We need it.
Senator Feinstein.
Senator Feinstein. Thank you very much.
Madam Secretary, I am one that thinks you are doing a very
good job.
Secretary Napolitano. Thank you.
Senator Feinstein. In an agency that is perhaps too large.
I think it is 22 departments and over a couple hundred thousand
people. It is a very big job.
I wanted to concentrate my questioning on three areas. The
first is student visa and fraud, and earlier last year, I
joined in a letter with Senator Schumer on this program, and I
am concerned that ICE is not adequately certifying each
educational institution. In May of 2011, we have a case of Tri-
Valley University in Pleasanton, a sham school certified for 30
students, bringing 1,555 students in, making $4 million. The
head is now being prosecuted.
To make a long story short, the United States Immigration
and Customs Enforcement, known around here as ICE, wrote an
interesting letter on May 3, 2011, saying this: ``The student
SEVP does not have the statutory authority to close
noncompliant schools immediately, nor does it have the
authority to restrict DSO access to SEVIS.'' And it goes on to
say they have done a risk analysis of the 6,487 SEVP-certified
schools with active records, and they had schools fitting into
low-, medium-, or high-risk categories.
Here is the breakdown: Low risk, 4,794, 74 percent; medium
risk, 1,276 schools, 20 percent; and then there is high risk,
417 schools, or 6 percent of all the schools examined.
Now, here is what they say: ``Many of the noncompliant
schools are already the subject of criminal investigations,
forestalling any administrative action to limit access to SEVIS
to issue the Form I-20. Please know that SEVP can begin
immediately such assessments and site reviews once cleared to
do so.'' Can't they be cleared to do this early on?
Secretary Napolitano. I think----
Senator Feinstein. Let me just say one other--I think we
have to remember the 9/11 hijackers came in on student visas,
went to schools that taught them how to fly but not to land,
and nobody thought it was unusual.
So I am really concerned about sham schools and that we
have a good sense of who is coming in under a foreign student
visa, whether they are attending the school at all. I have been
at this, Madam Secretary, for about 12 years, and, you know,
initially everybody objected to it. Then they began to do it.
Now I see it easing up. And so I wanted to bring it to your
attention.
Secretary Napolitano. I share that concern. These sham
schools should not be allowed to operate. We have increased our
efforts against them. That particular letter I suspect is that
we are coordinating with U.S. Attorney offices in the relevant
districts, and they have asked us to postpone administrative
action until their criminal case was ready to go. But I will
follow up on that.
Senator Feinstein. Can you take a look at it?
Secretary Napolitano. Absolutely.
Senator Feinstein. And let me know.
Secretary Napolitano. Yes.
Senator Feinstein. OK. The second thing is agriculture
enforcement audits. Obviously, I have a bias. We have 81,000
farms in California. Virtually all of the labor is
undocumented. What happens is in harvest season, canning
season, ICE swoops in. We have got a problem. I have tried for
10 years to get an ag jobs bill through, and I cannot get it
through. The fact of the matter is that if we want American
produce, the labor is generally undocumented, and we have to
find a solution to this.
So I am hopeful--and I know that you are doing aggressive
I-9 audits of ag employers. I am very concerned that these are
going to decimate on-farm and farm-dependent jobs. Do you have
any thoughts?
Secretary Napolitano. Yes. I think the base of the problem
is that there is no provision under the current immigration law
that enables more agricultural workers to be documented. And so
we have some employers--and we try to pick those who are really
knowingly and intentionally violating the law when they have
other options. We are trying to focus on them through the audit
process. But the underlying issue goes back to the immigration
law itself.
Senator Feinstein. Senator Schumer just murmured to me that
most do not have any other options. California is a State that
cannot use the H-2A program, the visitor program. So it depends
on a large, skilled, rotating, generally undocumented coterie
of about 600,000 workers for 81,000 farms. If ICE swoops in,
farmers cannot plant, they cannot harvest, they cannot can. And
this has been happening. I want to bring it to your attention.
You know, it is a hard problem. But if this body will not take
action, we are going to put ag out of business, and I am really
concerned about it. So if there are any thoughts you might
have, I would very much appreciate them.
And the last point I wanted to raise with you is another
longstanding issue of mine, and it is the Visa Waiver Program
and biometric exit. For many years I have been trying to get
data on visa overstays for each country, to no avail thus far.
Last month, DHS Assistant Secretary David Heyman informed me
that by June of this year, DHS will have a fully operational
biographic exit system in place. It is going to provide real-
time information on those who exit United States airports. This
new exit system is expected to allow you to calculate overstays
per country by May of this year. Here is the question. I think
this is very important because we have got 15 million people
that come in every year, and we do not know whether they leave
or not on a visa waiver. Is DHS on track to have a fully
operational biographic exit system by June of 2012?
Secretary Napolitano. Senator, I believe we are. The final
plan is in the clearance process with OMB, but that is our
intent.
Senator Feinstein. Good. Will DHS be able to provide
overstay rates per country by May of 2012?
Secretary Napolitano. We should be able to provide some of
that information, if not all.
Senator Feinstein. Good. Thank you.
Chairman Leahy. Thank you, and what we will do now, we will
go to Senator Grassley. Senator Kyl would have been next, but--
no, we will go to Senator Kyl next. Senator Grassley would have
been next, but he is yielding to Senator Kyl, which is fine
with me, and then we will go to Senator Schumer.
Senator Kyl. Thank you, Mr. Chairman. Thank you, Senator
Grassley.
This is not the first time that Senator Feinstein and I
seem to have been thinking about exactly the same thing, so let
me just quickly touch on the three things that she mentioned,
which were also of concern to me.
On student visas, I think it is not just a matter of the
sham schools but also the failure of ICE to follow up with
students who have overstayed their visas and the very poor
record of schools providing information to ICE.
Second, on the ag workers, the H-2A regs could be reformed.
It is not just a matter of our failure to pass legislation
here. H-2A regulations were reformed toward the end of the Bush
administration. They were more workable, I am told. That was
then changed with the Obama administration. If we could work
more toward the kind of regs that existed toward the end of the
Bush administration, I think that might be at least a help for
some.
And on the visa overstays and the exit system, I was going
to ask about that. I think your budget actually was denied $30
million by the Appropriations Committee because of its
frustration with the lack of a plan. We need to get that plan
implemented as well as up here.
Let me go on to----
Secretary Napolitano. If I might, Senator.
Senator Kyl. Yes, sure.
Secretary Napolitano. Can I talk about the visa overstay
issue with you a bit?
Senator Kyl. Sure.
Secretary Napolitano. One of the things that we have done
over the last few years is we have added data bases and been
able to link them so that before visas are issued, there is a
check against our data, NCTC's data, and certain NSA data. We
have done now the same thing. We have gone backwards to find
visa overstays, and we have looked at and prioritized those
that provide any kind of public safety or security risk. And we
have now looked at the entire backlog, and I will give you the
inventory of what we have found, and we are prioritizing those
visa overstays within ICE.
Senator Kyl. I understand that. What is your estimate now,
just approximately, of the number of the visa overstayers as a
percentage of the total of illegal immigrants in the country
today as opposed to those who have crossed the border
illegally? The number you usually hear is around 40 percent. Is
that----
Secretary Napolitano. That may be a high number because
what we have found is a lot of people who were marked as visa
overstays had, in fact, left.
Senator Kyl. So 40 percent might be too high an estimate?
That is the number that is usually given when we complain about
the lack of security at the border. They say, well, remember,
40 percent of the people here illegally is actually overstayed
visas. You think that number is a little high.
Secretary Napolitano. It may be a little high.
Senator Kyl. All right. In either event, it is a big
problem, and it is fine to prioritize for criminals, but that
is a very small percentage of the people who have overstay
visas.
Secretary Napolitano. Senator, what we have done is say,
look, we have to make the best use of those ICE resources we
have and pick up----
Senator Kyl. Well, that is fine, Madam Secretary. Excuse me
for interrupting, but every year I say if you need more
resources, ask for them. ``No, we have got everything we
need.'' And then the excuse of not moving forward on something
is, ``We do not have enough resources.'' You cannot have it
both ways. If you need more resources, ask for them.
Secretary Napolitano. Senator, thank you. As you know, we
are all working under the constraints of the Budget Control
Act. That is the deal that was struck. But to your point, yes,
and to Senator Feinstein's point, yes, we believe visa
overstays are a keen interest.
Senator Kyl. So do we, and we appreciate that.
Another very parochial but very important point, and I know
you appreciate this. Every time I go to the border, the first
thing people talk about is not illegal immigration. It is the
incredible delays at the ports of entry. We need a lot of
things, including more officials at the border on the American
side. That is not the total solution to the problem. A lot has
to do with the inadequate link-up on the Mexican side of the
border. But at the Mariposa point of entry and San Luis, both
of which I know you are intimately familiar with, we need more
agents. That is what they tell us down there. And yet that was
not in the budget request.
I would just ask you to please either ask for the agents
that we need there--and this is just to facilitate commerce
between the two countries.
Secretary Napolitano. Yes.
Senator Kyl. And to make life a little bit easier for
people that have to cross every day. Either ask for it in the
budget or find some other place where we can get it or make a
recommendation to us as to how we can move money around to
provide for those additional agents. The estimate at Mariposa,
for example, is about 250. It does not seem like that many. We
ought to be able to find the money for that. Would you agree to
help try to work with us on that?
Secretary Napolitano. We will definitely work with you on
that, Senator.
Senator Kyl. I appreciate it, because I know you know the
problem.
Secretary Napolitano. Very well.
Senator Kyl. And it is not a partisan problem. We all agree
we need to resolve it.
Secretary Napolitano. Well, and we want to facilitate that
trade and commerce.
Senator Kyl. Absolutely.
Secretary Napolitano. There are a lot of jobs depending on
it.
Senator Kyl. Absolutely. Now, the last point that I wanted
to make, 6 months ago you were written a letter, and then
another 3 months ago, about the lack of enforcement of Federal
detainers, specifically, for example, in Cook County. Last
night, at 6:30, we finally received a response to our letter,
and it certainly is a good response in terms of pointing out
the problem. Where I fail to see the response is in what you
are doing about it other than writing letters.
This letter, dated April 24th, from Nelson Peacock, I will
ask unanimous consent to put in the record because, as I said,
I think it lays out the problem from ICE's perspective and your
perspective very well.
[The letter appears as a submission for the record.]
Senator Kyl. Cook County is simply not abiding by Federal
law in detaining officials who have criminal records that you
have asked them to detain. For example, since the ordinance was
enacted, ICE has, according to this letter, lodged detainers
against more than 432 removable aliens in Cook County's custody
who have been charged or convicted of crime, including serious
and violent offenses. Cook County has not honored any of these
432 detainers, and they point out a case of particular gravity
recently reported in the Chicago Tribune. And Mr. Peacock notes
that this probably violates Federal law.
The only action that I can see taken here is that two
letters have been written, and Cook County has been encouraged
to change its policy and has been advised that if it continues
this policy, it may result in denial of reimbursement to the
State of costs under the SCAP program.
You know, the Federal Government has been very aggressive
in filing lawsuits against States that are trying to actually
do something about illegal immigration, but it does not look to
me like the Government is doing that much to enforce the law
that currently exists with respect to detainers. What more do
you plan to do with entities like Cook County who are obviously
flouting Federal law and jeopardizing American security in the
process.
Secretary Napolitano. Yes, I agree. I think Cook County's
ordinance is terribly misguided. It is a public safety issue.
We are evaluating a lot of options right now. You know, we
always start off trying to work with the local authorities and
work things out. We to date have had no success there, so we
are evaluating all options.
Senator Kyl. And I hope more than evaluating, you will take
some action pretty soon. Will you report to us as soon as you
have decided what kind of action to take, just kind of keep us
advised rather than waiting for correspondence from us?
Secretary Napolitano. We will keep the Committee staff--I
think that is probably the best way to do it--advised of how we
are proceeding there.
Senator Kyl. I appreciate that very much.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Kyl.
I would also note that today is Senator Kyl's birthday.
Senator Schumer. Oh, happy birthday.
Chairman Leahy. Happy birthday to you. Please do not sing.
[Laughter.]
Senator Kyl. That is one thing you and I can agree on.
Senator Schumer. Last birthday as a Senator.
Chairman Leahy. It is his birthday, and I appreciate him
being here.
Senator Schumer.
Senator Schumer. Thank you, Mr. Chairman. I wish Senator
Kyl a happy birthday. I guess it will be the last one as
Senator, so your next birthday may be even happier than this
one.
[Laughter.]
Senator Kyl. But I will miss you.
Senator Schumer. Thank you. Mutually, seriously. Senator
Feinstein and I were just mentioning that a second ago.
First, two points of housekeeping. Good news for you. I am
not going to ask you any questions on the Secret Service. I
have a lot of faith in your ability to get to the bottom of
this. All of us are shocked and terribly troubled by it, but I
think the kind of investigation you and your Department will do
I have a lot of faith in.
Secretary Napolitano. Thank you.
Senator Schumer. Second, Senator Feinstein mentioned the
student visa issue, and I believe she mentioned--I came in in
the middle of her testimony, unfortunately. She and I have
asked for a GAO report, which is coming out in about a month,
and our Subcommittee on Immigration with the Chairman's
permission will have hearings on that GAO report when it comes
out. So I will let you know about that.
I have two questions here on other issues in your vast
jurisdiction. The first relates to passenger advocates. Over
the past several months, there have been an increasing number
of news stories about passenger complaints over TSA screening
procedures, and these complaints include, for instance, a
female passenger being told she could not carry her breast pump
on board the plane while the milk bottles were empty, imagine
how her child is that way; asking female passengers to submit
to repeated inspections through body scanner machines for non-
security reasons; asking elderly and disabled passengers to
remove critical medical equipment and undergo strip searches
prior to clearing security.
I like the TSA, and I think they do a good job, and I was
involved in setting them up. It is a hard job to balance
security and commerce, but you can always make it better
without one impeding the other. TSA's original response at the
lower levels here was to first deny wrongdoing and then issue
apologies. So in light of these incidences, Senator Collins and
I decided to introduce legislation called the Rights Act, and
the Rights Act will help curb abuses in the TSA screening
simply by requiring the TSA ombudsman office to establish a
Passenger Advocate Program to resolve public complaints and
conduct training of TSA officers to resolve frequently
occurring passenger complaints. It would also require that
every Category X airport--is that Category X or 10? Big
airport. Let us strike Category X. It is a funny category. What
are A through V? We do not know.
Anyway, every Category X airport to at least have one TSA
passenger advocate on duty at all times. So if somebody is
faced with the choice, they are lined up, they are asked for an
intrusive exam, they think that is uncalled for. I do not
expect every TSA agent to be schooled in each thing, but if,
you know, at Kennedy Airport, a large airport that handles tens
of thousands a week, there is someone who is trained who can
just come over within 10 minutes--just one, no new people, no
new cost, one of the existing employees who knows about how to
do this and can resolve a sticky situation. It avoids the
passenger the choice of undergoing an examination that they
think is intrusive or humiliating or not going on the flight.
So do you support the creation of passenger advocates at
airports? And will you work to roll those out at airports
without the need for an act of Congress?
Secretary Napolitano. Absolutely. And if I might, just to
go through, first, as you know, TSA I think does a very good
job, and it is a very difficult job.
Senator Schumer. Right.
Secretary Napolitano. You know, every morning I start my
morning with a threat brief of what is facing us in the
evolving world of terrorism, and aviation security still
remains the No. 1 threat. But we have taken steps to try to
make it less onerous. We have taken those over 75, children
under 12 out of the routine lines. The breast pump incident you
mentioned was not in accord with how we do that, and the
employee received appropriate retraining. So we keep trying to
do that.
But the idea of having cross-trained advocates among our
TSA personnel in the Category X airports is something we
support and TSA is already moving toward that goal.
Senator Schumer. That is great news. Thank you, and it will
avoid Senator Collins and I having to pass legislation, which
is good.
Secretary Napolitano. Well, we are happy to keep you
informed of----
Senator Schumer. Since legislation moves so quickly these
days through the Senate.
OK. Second is a parochial issue but of great importance to
western New York. It is the Niagara Air Force Base, air base. I
want to ask you about the possibility of constructing a new
Border Patrol station at Niagara Air Base to replace the
existing Niagara Falls Border Patrol station. As you know, the
existing station is insufficient for your current needs. We all
agree to that given all the new security. We have had
terrorists cross over the Buffalo border. It lacks the capacity
needed to accommodate the number of agents now housed at the
station. It does not have the space and resources your agents
need to do the job.
A new station at Niagara Air Base can comfortably
accommodate 50 agents, could be modified to accommodate even
75. It will also include critical items that the Border Patrol
needs, such as the main administration building will be suited
for mustering and training, will include an armory and
necessary storage space, ancillary buildings that will house
vehicle maintenance, enclosed parking, and kennels. Obviously,
we have the dogs at the border, too. This new station would be
a win for the Border Patrol and the Niagara Air Force Base,
whose mission is being curtailed because of the cutbacks in the
military.
Would you support the creation of a new Border Patrol
station at the Niagara Air Base?
Secretary Napolitano. Niagara is very much under
consideration, Senator. The issue is money for construction of
a new facility, but certainly Niagara is under consideration.
Senator Schumer. OK. So, in other words, you think it is a
good idea to have it there, and we have to find the funds for
it.
Secretary Napolitano. That is one way to put it, yes, sir.
Senator Schumer. Yes. I like the ``yes'' part of that
answer. Thank you.
Mr. Chairman, I am finished with my--I would yield back my
remaining time.
Chairman Leahy. Senator Grassley.
Senator Grassley. Thank you, Mr. Chairman.
First, just a statement. I wanted to give you an update on
some of the--well, first of all, I want to put a statement in
the record. I was going to have a long statement.
Chairman Leahy. Without objection, so ordered.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Secretary Napolitano. Senator, I do not know that your
microphone is on.
Senator Grassley. I am not talking into it. That is the
problem.
Secretary Napolitano. Thank you.
Senator Grassley. I an surprised you want to hear me, but
thank you.
[Laughter.]
Senator Grassley. First, an update. About 99 percent of the
time when I write you, I do not get a response directly from
you. The response comes Leg. Affairs.
Second, and more frustrating, many times my questions are
rarely, if ever, answered.
Third, the delays are unacceptable, and just last night, I
received a response from the Department about Cook County 6
months after my initial letter of inquiry. And, also, you just
responded to questions we posed at the last Judiciary Committee
oversight hearing, which took place last October. That is just
to bring you up to date. That is not a question. I do not want
a response to that.
Both the Chairman and I want to get to the bottom of this
Secret Service matter, and I know the Chairman has covered a
lot of the issues I wanted to cover, so I am not going to go
back over that, and I thank the Chairman for asking those
questions.
I was briefed by the Secret Service Director, and he
responded about the Inspector General being involved, and I
have asked for that involvement. But he said he was already
involved before I asked for it, so I compliment Director
Sullivan on that.
Director Sullivan has included the Inspector General in the
investigation up to this point, but I want to know if the
Inspector General is truly conducting an independent and
impartial investigation. I think the same independent
investigation is necessary from the Inspector General in
Defense and from the White House to get to the bottom of the
story for all the advance team staff that was in Colombia.
In previous answers to questions, you mentioned that the IG
is supervising the investigation. Do you agree that the
Inspector General should conduct a full-scope investigation to
determine if this is a cultural problem routinely occurring in
additional cities instead of just reviewing what occurred in
Colombia? Question No. 1.
Question No. 2: Do you have any reason to believe that the
Inspector General is not receiving full and complete access to
the Secret Service investigation?
And, three, you referred to previous answers that, as far
as you know, in the last 2\1/2\ years this has not been a
cultural issue. Why do you keep saying just 2\1/2\ years? And
don't you think we ought to make sure before 2\1/2\ years that
it was not a problem as much as not being in the last 2\1/2\
years?
Secretary Napolitano. Yes, Senator. Let me address that. I
use that timeframe because, you know, we are going back now
through all of the records, and we have gone back that far,
probably even further at this point.
Senator Grassley. OK.
Secretary Napolitano. In terms of the IG's involvement and
supervision of the investigation, I am sure the IG would be
willing to answer those questions. But we have an MOA, a
Memorandum of Agreement, with the IG and the Secret Service
that they are--in these kinds of cases where there is alleged
misconduct, they actually--``they'' meaning the IG supervising
the investigation, but they use the investigatory resources of
the Secret Service. That is how we are managing this one, and I
believe the IG has been with the Director during the
Congressional briefings to confirm that point. So we expect the
IG to be conducting a full investigation.
Senator Grassley. OK. On another matter dealing with
cybersecurity, specifically one cybersecurity proposal would
place at your Department the lead agency in overseeing
regulations for covered critical infrastructure. I have
concerns about this proposal because it creates a new
regulatory bureaucracy. I am also concerned that this new
regulatory power giving DHS background on overseeing the
chemical facilities security, CFATS program. Congress gave your
Department regulatory power over chemical facilities.
Regulations were issued in 2007. Five years later, nearly 4,200
chemical facilities have complied with the regulations, but
your Department has yet to approve a single security plan, so
far spending half a billion dollars and not getting anything
approved.
I have obtained a copy of an internal review by Under
Secretary Rand Beers by two subordinates that details the
problems DHS faces in implementing CFATS. This memorandum is
the most candid review of a failed Federal Government program I
have seen. This memorandum details failures at an unprecedented
level, poor hiring, hiring people not skilled, poor staff
morale, management leadership failures, lack of subject matter
expertise, union problems, and ``catastrophic failure to ensure
personal and professional accountability.''
The memorandum also states that inspectors lacked expertise
to effectively evaluate site compliance with cybersecurity
requirements. On top of this memorandum, the Department has
failed to implement ten outstanding GAO recommendations.
So taken together, these reports paint an agency that
cannot control costs, manage employees, and effectively
implement the mission. If it costs DHS $480 million to
effectively regulate zero chemical facilities, how much can we
expect that it costs the taxpayers for the Department to
regulate cybersecurity among thousands of private businesses?
Secretary Napolitano. Senator, let me take those issues,
both of them. First, the CFATS, or chemical facilities, yes, we
did a candid internal review because we were not satisfied that
we were achieving the results that we need to achieve, which is
the safety and security of our chemical facilities and the
possible security issues with them. We now have a very
aggressive corrective plan in place. I would be happy to brief
you or your staff on that. We have been approving site-specific
plans. If they are not at final approval, they just about are.
But that process is really moving forward with great alacrity.
So we have learned a lot from CFATS, and we are fixing those
problems. We have put new people in charge, done all the things
one needs to do to make sure that a program moves forward
effectively.
With respect to cyber, this is an area where our deep
concern is that the Nation's core critical infrastructure on
which farmers depend and small business depend and everyone
depends is very susceptible to attack, and the attacks can
occur in a variety of ways. And we are seeking some means to,
A, have basic performance standards by that core critical
infrastructure, have real-time information sharing so that we
can swiftly move in to help mitigate and share information if
need be, and we are actually asking the Congress to give us
some hiring authority so it is easier for us to hire people who
are experts in the cyber field.
So as the Congress begins to consider and the Senate begins
to consider this legislation, we hope they do it in the sense
of what the risk posed is really to the country right now.
Senator Grassley. OK. Thank you.
Chairman Leahy. Next, Senator Klobuchar.
Senator Klobuchar. Well, thank you very much, Mr. Chairman,
and thank you, Secretary Napolitano, for being here and the
good work that you have done. I share in Senator Feinstein's
views that you have done a good job with very difficult
challenges.
I also wanted to thank you for being here to answer
questions about what happened in Colombia. In my old job as a
prosecutor, I had very positive interactions with the Secret
Service, and I am hopeful that the actions of a few will not
overshadow all of the good work that they do every single day.
Secretary Napolitano. Indeed.
Senator Klobuchar. But I do want to ask some questions
about that because I think it really shook the trust of a lot
of people, and I think the way you make sure that the actions
of a few do not overshadow the actions of many, the good
actions and how they sacrifice their lives every day and put
them on the line, is by making sure that we clear up what
happened, but also make sure that it does not happen again, and
that we have a clear understanding of what is going on.
I know one of the Senators asked about this, but there was
a Washington Post report recently that talked about the fact
that this may have been going on before. In fact, one of the--
the person is not identified, but one agent that was not
implicated in the matter remarked that, ``Of course it has
happened before. This is not the first time. It really only
blew up in this case because the U.S. embassy was alerted.''
And I just wondered if you could comment on that, how you think
we need to move forward, and how--to me, this does seem to
create a risk when you are in a country like Colombia and you
have people doing things where they could potentially be
bribed. If you could just generally comment about that.
Secretary Napolitano. Right. Well, again, the actions were
unacceptable, and they were unacceptable taken by themselves. I
think every mother of a teenager knows that a common defense
is, ``Well, everybody else was doing it, you know, so I get to
do it. ``First, not everybody else was doing it. And, second,
this behavior is not part of the Secret Service way of doing
business. They are very professional.
But we are going to get to the bottom of this. We are going
to make sure that standards and training, if they need to be
tightened up, are tightened. And we have moved with great speed
to deal in a disciplinary fashion with the 12 agents involved.
Senator Klobuchar. I do not expect you to reveal things
that are not public, but have there been other incidences where
people have tried to bribe or blackmail agents because they
believed or they had some kind of interaction with prostitutes
or someone with some kind of illegal activity?
Secretary Napolitano. Senator, I am not aware of any. As I
said before, the Office of Professional Responsibility in the
Secret Service went back 2\1/2\ years. That covers 900 foreign
trips and 13,000 domestic trips and did not have in that period
any kind of a complaint. That does not, obviously, include the
IG. That is an independent entity. But we are looking to see
and make sure this was not some kind of systemic problem and,
most importantly, to fix it.
Senator Klobuchar. And there was one agent that was in the
President's hotel. Is that correct? That was also--that was
just identified?
Secretary Napolitano. I believe that is correct.
Senator Klobuchar. OK. Another question on a completely
different incident, and I think every employer has had
incidences of people posting things on the Internet and
pictures of them, like maybe in their boss' chair drinking a
beer. That happened to me 5 years ago with an intern. It was
innocent, but--I think he never thought we would see it. But
these are things that happen. But when they happen with law
enforcement, it seems a step above and I think much more of a
security risk.
I know that recently one of the Secret Service agents has
reportedly posted photos on Facebook depicting himself on duty
protecting--I think it was then Vice Presidential candidate
Sarah Palin. Could you talk about the Secret Service rules
regarding agents sharing details of their assignments, online
or otherwise? And does the Secret Service have policies
regarding agents' use of Facebook and other social media
websites?
Secretary Napolitano. Yes, we do have a social media
policy, and we would be happy to provide you with a copy of
that. And, yes, to the extent there was such a posting,
unprofessional and unacceptable.
Senator Klobuchar. OK. Very good.
I wanted to ask you a little bit about, you know, we are
working very hard on cybersecurity initiatives here going
forward, and can you talk about how Homeland Security is
currently working with State and local law enforcement to
prevent and mitigate cyber threats and discuss the Stop, Think,
Connect campaign and your efforts to educate the public on the
role that they have to play in this important fight?
Secretary Napolitano. Right. We are trying, just as we have
the See Something, Say Something campaign, Stop, Think, Connect
is one of our efforts to educate the public about everyone's
shared responsibility who is on the Internet. Everyone has a
responsibility to have good cyber habits. Just like when you
get in a car, you should buckle your seat belt, it should be
reflexive above anything else. So we continue to push on that.
With respect to our coordination with State and local
governments, we do that quite a bit, Senator. We have the NCIC
out of Northern Virginia. We actually have representatives on
the floor. That is our 24/7 watch center where cyber is
concerned. So we are working with them very extensively on
that.
Senator Klobuchar. Very good. And now turning to our
borders, I am Chair, as you know, of the U.S.-Canadian
Interparliamentarian Group. They are actually coming to
Washington next month, and I know you have been working on some
cross-border crime issues. But I did want to thank you for an
issue that I have been raising for a few years, and that is the
issue of the Canadian baggage screening, which has finally been
resolved as part of the Beyond the Border Action Plan. So thank
you for working on that.
And then I wanted to ask--I know Senator Schumer asked some
things about the TSA. Again, I understand that there are always
incidences that need to be resolved and new things come up. But
overall I think they also, like yourself, have a very
challenging job, and I have been proud of the work that they
do, at least in the Minneapolis airport where I work with them.
You just brought in the PreCheck Pilot Program in our State. Do
you know how that has been going?
Secretary Napolitano. The PreCheck Pilot Programs are very
popular. This is the domestic branch of the kind of Trusted
Traveler programs that we began with the Global Entry Program
internationally. So we are expanding that PreCheck Program as
rapidly as we can.
Senator Klobuchar. Very good. And then, last, the JOLT Act,
I would just call your attention to that. This is bipartisan
legislation that we have introduced with Senators Schumer,
Rubio, Blunt, Mikulski, Kirk, and Lee, and I think it is very
important to move ahead with that. We have appreciated some of
the work you have done on tourism, and as you know, we are
working with the State Department to improve the visa wait
times. But there are also other things that we can do that are
contained in this Act, so we would love to have your help and
support with that bill.
Secretary Napolitano. I would be happy to take a look at
it.
Senator Klobuchar. Thank you.
Chairman Leahy. Thank you.
Senator Cornyn.
Senator Cornyn. Thank you. Madam Secretary, good morning.
Secretary Napolitano. Good morning.
Senator Cornyn. Good to see you. We can all stipulate you
have an extraordinarily challenging job. I want to ask you a
question about DNA testing of detainees, and I know you are a
former Federal prosecutor and Attorney General, so you know how
powerful a tool DNA can be in a law enforcement investigation.
As a matter of fact, to digress a moment, we are going to
have an important Violence Against Women reauthorization on the
bill probably this afternoon or tomorrow, and I am offering a
bipartisan amendment that will address the 400,000 estimated
untested rape kits that currently are sitting in police lockers
and elsewhere, which, as we all know, is a powerful tool to
help identify what in many instances are serial perpetrators of
sexual assault. But let me bring you back to 2005. Senator Kyl
and I sponsored the DNA Fingerprint Act during the last
reauthorization of the Violence Against Women Act. This
legislation gave Federal law enforcement authority to collect
small DNA samples from all Federal arrestees and detainees,
just like we take fingerprints but, as you know more accurate.
These DNA samples, again as you know, can be checked
against the FBI's nationwide DNA data base, CODIS, to determine
whether the arrestee or detainee has committed other crimes
perhaps in other jurisdictions. So far, CODIS, we are told, has
assisted law enforcement officials with more than 169,000
investigations, including 10,000 in my State of Texas. So we
have seen it to be a powerful tool.
At your 2009 confirmation hearing, I asked if you would see
to it that the alien deportee DNA testing regulations were
fully and promptly implemented by the Department, and you
replied, appropriately, that DHS will fully comply with the
applicable statutory and regulatory framework.
Nearly 3 years after the hearing, how do you feel like that
is going?
Secretary Napolitano. Well, I think, Senator, we have
deported a record number of individuals, as you know. I will be
happy to go back and look at all the regulations governing that
to make sure we are in compliance. But we have had a very
aggressive plan to deport those who should be removed from the
country.
Senator Cornyn. And my question is a little more narrow
because what we want to do is identify whether these detainees
have perhaps committed other crimes and aid those law
enforcement agencies in the course of those other
investigations, not just enforce the immigration laws, which is
important but is not the complete rationale.
Would you be willing to on a voluntary basis submit to the
Committee sort of the Department's evaluation of how it has
complied and handled this requirement of 2005 into the DNA
Fingerprint Act?
Secretary Napolitano. I would be happy to supply that.
Senator Cornyn. That would be very helpful.
[The information referred to appears as a submission for
the record.]
Senator Cornyn. Let me tell you the reason for my concern.
Of course, we know the FBI has used a great deal of taxpayer
money and crime lab resources to prepare for hundreds of
thousands of DNA samples as a result of the passage of this Act
in 2005. We are told that the FBI is prepared for and expected
to receive between 120,000 and 240,000 samples from the
Department of Homeland Security in the year 2012. To date, they
report only having received 4,000 samples. So I hope you will
help us----
Secretary Napolitano. Yes, let us get to the bottom of
that.
Senator Cornyn.--identify what the disparity is between the
number of samples and the number anticipated by the FBI as a
result of this, because while I am aware that, for example, in
Afghanistan and Iraq, when our military captures high-value
detainees, they do get biometric identifiers from them that
could be used, can be used by law enforcement agencies and the
Department in the United States when identifying people coming
across, let us say, the southwestern border without the
appropriate visas to make sure that they are not coming in to
commit acts of terrorism and other violence. It----
Secretary Napolitano. Senator, if I might, that is a
somewhat different question.
Senator Cornyn. It strikes me that this DNA evidence--and I
will be glad to let you answer.
Secretary Napolitano. Sure.
Senator Cornyn. That this DNA information would be vitally
important and enormously useful not only in assisting your
Department in terms of border security and immigration
enforcement, but also to help law enforcement, writ large, in
terms of identifying people who come into the country and
commit crimes that currently are unsolved. Please go ahead.
Secretary Napolitano. Thank you, Senator, and I did not
mean to interrupt. But we do run illegal immigrants against a
variety of data bases, and I think I should supply you with
that information. And then I will look specifically into the
issue of DNA with the FBI.
Senator Cornyn. To my knowledge--and I will look forward to
your report--that is more in the nature of fingerprint and
other biometric identifiers and does not extend--did not extend
to DNA testing of detainees until Congress passed the DNA
fingerprint law in 2005. So you understand, I know, the issue,
and I would very much welcome your response to me and the
Committee so we can help get to the bottom of that.
Secretary Napolitano. Good.
[The information referred to appears as a submission for
the record.]
Senator Cornyn. Mr. Chairman, I will yield back my
remaining time. Thank you.
Chairman Leahy. Thank you very much, Senator.
Senator Whitehouse.
Senator Whitehouse. Thank you, Mr. Chairman. Welcome,
Secretary Napolitano.
Secretary Napolitano. Thank you.
Senator Whitehouse. Just one question on the Secret Service
episode. What opportunities did this behavior create for
compromise of the President's security, for instance, had the
prostitutes had connections with Colombian criminal networks or
foreign intelligence services? I am not saying that it did, but
it seems like it is the kind of behavior that would render an
agent vulnerable to blackmail and influence if criminal
networks and foreign intelligence services were aware of it and
that is a potential avenue for compromise of the President's
security.
Secretary Napolitano. Senator, we are still completing the
entire investigation, and there are still interviews to be
conducted. But I think we have planned to keep the Committee
briefed on what we find and whether there could on a future
basis be that kind of risk. But as I testified earlier, the
first question I posed to the Director was: Was there any
breach to the President's security in this instance? And the
answer was no.
Senator Whitehouse. But there was a risk of breach along
those lines if those connections existed, correct?
Secretary Napolitano. There may be a risk, and that is why
this behavior cannot be tolerated.
Senator Whitehouse. Yes. Let me switch to cyber, and let me
thank you for your energetic work and persistence on this issue
as we in Congress try to pass the legislation that we need.
There are a variety of different approaches that are being
looked at here. Let me ask you this: If we were to pass a bill
that failed to protect American critical infrastructure in
private hands, like our electric grid, our financial processing
systems, our communications networks, and so forth; and,
indeed, if that bill even failed to define critical
infrastructure or provide a process for defining critical
infrastructure so we actually knew what it was and what it was
not, how well would that bill have met the threat that you see
us facing in this realm?
Secretary Napolitano. Well, it would leave a significant
gap given the kinds of attacks we already see. That is why we
think the Nation's core critical infrastructure should have
some basic performance standards to meet. That is why we think
a bill needs to have real-time information sharing in it and
incentivize that information sharing. And so those are the
kinds of things that really should go into a comprehensive
cyber bill.
Senator Whitehouse. And would you be able to say that the
national security needs of the United States had been met by a
bill that did not include any protection for our critical
infrastructure?
Secretary Napolitano. Senator, I would say based on what we
know now and the risks that we already see now and the kinds of
attacks that we already see now, the failure to address core
critical infrastructure would be a significant gap in any
legislation.
Senator Whitehouse. Thank you.
My last question on this same subject, but switching from
the national security and public safety side of cyber attack to
the intellectual property and economic competitiveness side of
our cyber vulnerability, I said about 2 years ago that I
thought we were on the losing end of the biggest transfer of
wealth in the history of humankind through theft and piracy
because of the attacks on our industrial base and our
technological base from overseas for the purpose of industrial
espionage and stealing intellectual property. Since then,
General Alexander has used virtually the same language. McAfee
has issued a report that uses virtually the same language. Mike
McConnell has used virtually the same language. This is a very
big deal for us from the point of view of economic
competitiveness, and you have been an Attorney General--in
fact, we were Attorneys General together. You have been a U.S.
Attorney. In fact, we were U.S. Attorneys together. You have
had a lot of experience with law enforcement, also as Governor
and in your role as Secretary of Homeland Security.
I do not yet believe that we are resourced adequately in
law enforcement to address that aspect of our cyber liability.
And I hear from companies in all sorts of industries that when
they can get, for instance, the FBI's attention, they are very
impressed with the capabilities that are involved. But it is
very rare that you can turn over a case of intellectual
property theft to the FBI and say go. They simply do not have
the staff. They simply do not have the resources, as much as
this part of law enforcement has grown both in U.S. Attorney's
Offices and at the FBI.
So I would like to ask that you participate in discussions
that we are going to be having around the cybersecurity
legislation about how we should better organize our cyber
resources. It is both criminal and civil because a lot of what
gets done is done through civil law. The Coreflood botnet was
taken down by a civil case. A lot of the cleanup on the Net of
crooked websites can be done through civil proceedings. But it
is a law enforcement function because you are getting rid of
very bad actors on the Net who are attacking American
businesses and the American economy.
So that was a little bit more of a speech than a question,
but what I would like to do is to invite you to, based on your
experience, participate in that discussion. I do not know if we
need the equivalent of a cyber DEA or ATF, an entire
organization, or if we need the equivalent of a cyber OCDETF, a
different way of organizing law enforcement activity, or
whether we need the cyber equivalent of an Organized Crime
Strike Force. Those were set up many, many years ago, and there
are a variety of different structures, but I do not think the
private sector is getting the support it needs from law
enforcement because of lack of resources, and there is an awful
lot of money going out the door. We are standing by one of the
biggest robberies in history, and I would love to have your
support in pursuing that concern.
Secretary Napolitano. Senator, first of all, I agree with
your statement of the scope of the problem. It is severe, it is
endemic, and it is a transfer of wealth, as you put it. We work
with the FBI, Secret Service and ICE all have cybersecurity and
do criminal cases in that area as well as some others. So I
would be happy to participate as we--I think in the context of
comprehensively looking at the protection of the country in
cyber, how we organize our law enforcement resources and make
sure particularly the FBI has what it needs to handle some of
this work is a good question, and I would be happy to
participate.
Senator Whitehouse. I appreciate it.
Chairman, thank you very much.
Chairman Leahy. Thank you.
Madam Secretary, as you have noticed, we have had Senators
on both sides of the aisle that have come in and have left
during this hearing because most of us have about three
different Committee meetings going on. You do not get that
luxury, and I do want to applaud you, one, for keeping your
answers as brief and to the point and, I might say, as accurate
as you have, which is typical of your appearance, and I
appreciate that.
I am going to have to leave. I would just note that Senator
Lee will go next. I am going to turn the gavel over to Senator
Coons. I am doing this so that we are trying to keep similar
hairlines----
[Laughter.]
Chairman Leahy. Sorry about that. But Senator Coons has
worked very, very hard on this subject, and I have asked him to
take over as Chair. We will go to Senator Lee next, but I do
appreciate what you said.
I would add--and I think I can speak for Senator Grassley
and others here--we would want to keep in touch with you and
the Director of the Secret Service as this whole matter goes
on, not just on what has happened now, but what is happening in
the future and what will happen in the future. We will do it
because of our obvious oversight interests and the need to do
it, the protection of key people, in this case in a
Presidential election year, both the President and the
Republican nominee, but also because we have so many good men
and women in the Secret Service that I hope we will be able to
demonstrate that if there are a few bad apples, they are weeded
out so that the others who are extraordinarily dedicated,
highly trained professionals can continue on the work they do.
Secretary Napolitano. Absolutely.
Chairman Leahy. Senator Lee, thank you for that. Please go
ahead, sir.
Senator Lee. Thank you, Mr. Chairman, and thank you,
Secretary Napolitano, for joining us.
In March of this year, John Cohen, who I believe is your
Principal Deputy Coordinator for Counterterrorism, testified
before a House Subcommittee that the Department should have a
biometric exit system designed and ready to go--at least ready
to roll out, and announced and described some time within the
next few weeks, in the coming weeks. In your written testimony
today, I believe you said that a biometric exit system should
be ready for deployment and use within 4 years. How confident
are you about that timeframe?
Secretary Napolitano. What we are planning--and, Senator,
the actual plan is in final clearance with OMB so it should be
out shortly. But given our ability now to do enhanced
biographic exit, immediately moving and deploying that, and
then we will move and use that as the platform for adding on
the biometric. But the plan is done from our standpoint. We are
just working through the final nuts and bolts with OMB.
Senator Lee. And why does it take so long to get it
deployed? Is it just the development of a technology? In other
words, the fact that it takes 4 years to get it going, is
that----
Secretary Napolitano. Well, it is cost, it is the scope of
the issue. We have so many ways that people can exit the United
States. We are very different from other countries in that
regard. And manpower and other resources, yes.
Senator Lee. What kind of an impact do you think this will
have on visa overstays once you get it deployed?
Secretary Napolitano. I think it will help us, although we
have already used our enhanced biographic to go backwards to
identify overstays and to prioritize those that we want ICE to
really focus on finding and removing.
Senator Lee. Can you give us any sort of brief specifics, a
brief thumbnail sketch on how the system will work?
Secretary Napolitano. I would prefer to do that in a
classified setting, Senator, and we would be able to do that,
yes.
Senator Lee. Understood. Understood.
Now, on a different topic, last year John Morton, the
Director of U.S. Immigration and Customs Enforcement, issued a
couple of memoranda that between them set out certain
priorities that would govern the use of--the exercise of
prosecutorial discretion within ICE. And within that
memorandum, there were a number of considerations outlined
which ended up mirroring to a very significant degree the same
factors that were outlined in the DREAM Act, the same version
of the DREAM Act that the Senate refused to pass a couple years
ago. It came up for a vote and did not get the necessary number
of votes to pass.
Among those factors that the agents were instructed to
consider in exercising prosecutorial discretion included the
alien's length of presence in the United States, which mirrored
the factor in Section 3(b)(1)(A) of the DREAM Act; the
circumstances of the alien's arrival in the United States,
particularly if it happened at a time when the alien was a
young child, which mirrors what can be found in 3(b)(1)(B) of
the DREAM Act; the alien's criminal history, mirroring the
factor in 3(b)(1)(D) of the DREAM Act; the alien's pursuit of
education in the United States with particular consideration
given to those who have graduated from a U.S. high school or
who have successfully pursued or are pursuing college or
advanced degrees at a legitimate institution of higher
education in the United States, and that, of course, mirrors
Section 3(b)(1)(E) of the DREAM Act; the alien's age with
particular consideration given for minors, mirroring Section
3(b)(1)(F) of the DREAM Act; and whether the alien has served
in the military of the United States, mirroring Section
5(a)(1)(D)(ii) of the DREAM Act.
So given these prosecutorial discretion standards which
match up somewhat closely to the same factors put forth in the
DREAM Act, and given the fact that the DREAM Act was not passed
into law, what assurances can you give us or what assurances
can I give to my constituents when they approach me and suggest
that perhaps there might be an effort under way to back-door
these same factors in through regulatory channels that could
not be passed through Congress?
Secretary Napolitano. Senator, first let me begin by
saying, having worked in this field for decades now, we
strongly need overall reform, and we strongly support the DREAM
Act as a legislative enactment. You are right it failed by four
or five votes to get cloture here. It was passed by the House.
That being said, what we have the capacity or only
jurisdiction to do is to administratively close a case. That
does not give the person involved any kind of a green card or
anything of that sort. It simply means their case is
effectively suspended and they can remain in the United States.
That is very different from the DREAM Act, which would allow an
actual pathway to citizenship, and, you know, one of the things
I think we should be doing is really focusing our enforcement
resources on those who are real risks to the public safety of
the United States. And those who meet the standards of the
DREAM Act, if they really meet those standards, are not.
Senator Lee. OK. So the overlap between them is
coincidental, and your response to that is essentially that
these are two different layers of analysis. One in the DREAM
Act would be focusing on a pathway toward citizenship. This is
focused on how to allocate scarce prosecutorial and law
enforcement resources.
Secretary Napolitano. I think that is an accurate
statement.
Senator Lee. OK. And you are not concerned or convinced
that these could spill over into something larger?
Secretary Napolitano. We are in the process of looking at
all of the cases on the immigration docket to see which, if
any, should be administratively closed, and those that meet the
criteria you just named are those that we would consider for
administrative closure.
Senator Lee. OK. Finally, is there any chance that in my
lifetime we will see a time when passengers before boarding a
plane do not have to remove their shoes going through TSA?
Secretary Napolitano. Well, Senator, we have already--you
know, we are looking at everything from what is the threat and
what is the risk, and we have already made changes for
passengers over the age of 75 and children under the age of 12
where, except for on a random basis--and we always have to have
some unpredictability in the system--they can be expedited
through the lines without their shoes being taken off.
From a technology standpoint, the technology still does not
exist that allows us to easily identify non-metallic matter in
shoes or in liquids, which is why we are doing some of the
things we are doing. And it is all based on the intelligence we
have about the terrorist threats we face.
Senator Lee. I see my time has expired. Thank you.
Secretary Napolitano. Thank you, Senator.
Senator Lee. Thank you, Chairman.
Senator Coons [presiding.] Thank you, Senator Lee.
Senator Franken.
Senator Franken. Thank you, Mr. Chairman.
Madam Secretary, this week the House of Representatives is
considering several cybersecurity proposals, but this morning I
want to talk with you about the cybersecurity proposals that
are here in the Senate, because while there has been a lot of
talk about privacy and civil liberties implications of the
House proposals, and rightly so, fewer people are talking about
the two bills here in the Senate. The fact is that, as they are
currently drafted, both of the cybersecurity proposals here in
the Senate present very serious threats to our privacy and
civil liberties. Both bills allow companies the near unfettered
ability to monitor the e-mails and files of their customers.
Both bills may allow companies to share that information
directly with the military. Both bills generally allow the
Federal Government to freely share that information with law
enforcement. And both bills immunize companies against grossly
negligent and knowing violations of the few privacy protections
that apply to this process.
In doing all of this, both of these bills sweep aside
decades of privacy laws, many of which this Committee wrote, in
many cases with Chairman Leahy at the helm. I am talking about
the Wiretap Act, the Stored Communications Act, and the pen
register statute.
Now, I have been working together with Senator Durbin and
with the sponsors of the Cybersecurity Act of 2012, and they
have been working with us in good faith, and I sincerely hope
that we can fix these problems before the bill even gets to the
floor. But I think it is really important that everyone knows
that we have real civil liberties problems not just in the
House but also here in the Senate bills.
I am saying all of this to you, Madam Secretary, because
the administration's cybersecurity proposal from last May does
not have many of these problems. It is in several ways more
protective of our privacy than either proposal here in the
Senate, and I want to use the remaining time I have here to
tease out those differences and, frankly, just make the case
that we should pay attention to what the administration did in
its proposal.
First of all, Madam Secretary, as I mentioned, both the
Cybersecurity Act and the Secure IT Act would allow the
military to be the initial recipient of any information being
shared by a private company, but it is my understanding that it
is the official position of this administration that a civilian
entity, not a military entity, should always be in the initial
recipient of cybersecurity data from the private sector.
Can you explain why this is the administration's position?
Secretary Napolitano. Well, the administration's position
mirrors how we have actually organized ourselves in the absence
of cyber legislation, and the way we have organized ourselves
is that DOD has responsibility for military networks, but DHS
has responsibility for civilian and for the intersection with
the private sector. We both use the technology resources of the
NSA, but we use them under different authorities and with more
restrictions, particularly on the privacy side, than you would
in an international military sort of context. So the position
that we have is to make sure that the statute mirrors what
actually is happening on the ground.
Senator Franken. Well, thank you.
Second, Madam Secretary, both of the bills in the Senate
give private companies a new authority to freely monitor the
communications and files on their systems, many of which would
be private. These bills create this new sweeping authority
despite existing provisions in the Wiretap Act that allow
companies to perform monitoring to protect their systems.
The administration's proposal does not contain that broad
new authority. Can you tell us why it does not?
Secretary Napolitano. What we are looking for and part of
the protection of critical infrastructure, we are looking for
the code, we are looking for the fact of the attack, the
methodology used, the code or signatures that were employed, so
that we can then check and see whether that is being done
elsewhere and also mitigate and also communicate with other
companies about this type of attack. So we are not looking at
content. We are looking at the how.
Senator Franken. Great. Thank you.
Why does the administration--let me back up. Third, the
administration's proposal only allows the Federal Cybersecurity
Center to share the information it receives from private
companies with law enforcement authorities if the information
constitutes actual evidence of a crime, which I think is good.
In comparison, one of the Senate bills allows the
disclosure of information received by the Federal Government to
law enforcement if it ``appears to relate to a crime.'' Why
does the administration have a heightened standard for
disclosures to law enforcement? Was this done to protect civil
liberties?
Secretary Napolitano. Senator, I do not know the reason for
the difference in the language between those two things. I
think what both are getting at is use of information for a non-
law enforcement purpose would not be immunized or would not be
permitted. But I would have to follow up with you on why the
difference between the two phrases.
Senator Franken. OK. Thank you. Let us do that.
I want to thank you, Madam Secretary. Before I finish, I do
want to say that I agree with my colleagues who say that we
need to do something about cybersecurity. There is no question
about that. I just think we need to get the legislation right
such that the bill does not unnecessarily sacrifice civil
liberties, and I thank you so much for your service and for
being here and for your answers.
Secretary Napolitano. Thank you.
Senator Franken. Thank you.
Senator Coons. Thank you, Senator Franken.
Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman. Your meteoric
rise to the chairmanship exceeds even Senator Franken's.
Senator Franken. Mine was, actually, if you remember, more
meteoric.
[Laughter.]
Senator Franken. But that is neither here nor there for the
purposes of this hearing. We have the Secretary, and I do not
think we should squabble over that.
Senator Sessions. We are glad to have both of you fine
Senators here.
Madam Secretary, Homeland Security is a big operation. I
guess it is the third largest personnel operation, or second,
in our Government.
Secretary Napolitano. I think it is the third largest, yes,
sir.
Senator Sessions. Third? Over 200,000 people. It is cobbled
together, and I have got to say I was uneasy about that bill.
As I recall, the Democrats said we should consolidate, and
President Bush said no, and then he finally said yes and did
it, and we passed it without a whole lot of consideration, in
my view. So you have a lot of agencies.You have got the Coast
Guard, Secret Service, TSA, all sorts of agencies with
different histories and cultures. So I know the challenge is
hard. I just truly believe you have not--I do not think that it
is completely together yet. Do you agree that there is still
cultural and bureaucratic efficiencies that could be obtained
if focused on today?
Secretary Napolitano. Senator, we continue to--we operate
under the caption ``One DHS,'' and we continue to excavate
differences in systems, in cultures, in protocols and
procedures. There has been a lot accomplished over the past 9
years by my two predecessors and over the past 3-plus years now
that I have been Secretary. But given the size and scope of the
merger that is underway, it does take time. The Department of
Defense took by most accounts 40 years to really become unified
as a Department. My goal is to substantially beat that record.
Senator Sessions. Well, I think so. I just would say every
dollar the taxpayers send us, they need and have a right to
expect is wisely spent. And when we have got duplication,
mismanagement, and competition unwisely within departments and
agencies, it just needs to be confronted, and strong
leadership. I will just throw that out. I would suggest that
you focus on that.
Senator Kyl I believe raised the question of Chicago and
their refusal to honor detainers placed on prisoners, which I
find, Cook County's policy at least, is unacceptable. You have
written letters about it. I hope that you will follow through
on it. They are, I believe, on track to obtain their Secure
Communities money and program through 2013. But Alabama, who
has been sued by the administration for trying to have laws
that help America enforce its immigration laws, not block the
enforcement of immigration laws, has had its Secure Communities
money stopped or not continued for counties that have asked for
it.
Can you tell us where you stand on that? And when can
Alabama expect that they would be able to have their Secure
Communities funding?
Secretary Napolitano. Well, as I shared with Senator Kyl, I
believe the Cook County ordinance is unwise, it is overbroad.
We are evaluating all options there. We have been trying to
work with the county to see if there is a resolution.
With respect to Alabama, given the litigation and what was
enjoined and not enjoined, what we did was simply to stop the
expansion of Secure Communities to the final--I think we cover
now 75 percent of the foreign-born population, so it is the
final quarter. But our plan, Senator, is to complete
implementation of Secure Communities nationwide by the end of
2013.
Senator Sessions. And that would include Alabama?
Secretary Napolitano. That would include Alabama.
Senator Sessions. Well, that is a problem for me, and maybe
I will file some written questions to make sure we are clear
about where that is heading. I am uneasy about it. It seems to
me that the State was targeted because their law was not
popular with the Department, with the President; whereas, you
have not taken to date any firm action against Cook County,
which clearly endangers, I think, the people of Cook County and
the country.
But with regard to the visa exit program, this is a plan
that was designed and required by law in 1996. I have observed
it and have seen it since I have been in the Senate and the
difficulties that have occurred. We have the Visa Waiver
Program up and working, the entry program up and working. I do
not believe it is that difficult to implement an exit program.
I said that when the Bush administration was in office, and I
will say it again. I think reports from the Government
Accountability Office, GAO, validate that, and I hope that we
can make some progress on it.
First, you indicated earlier that you have a biographic
plan that has some capabilities. But is it not true that
biometric--fingerprint, DNA, or some other such system,
fingerprint clearly being the most logical from my
perspective--that a fingerprint or other biometric exit system
is what is needed to have this system up and working?
Otherwise, somebody could walk out without a card that has
their name on it and their biographical data, but there would
be no way to verify the person holding that card is the person
actually exiting?
Secretary Napolitano. Senator, let me offer to have our
staff come and brief you personally. It is enhanced biographic.
It is not simply a card. But I will make sure that you get
briefed on that.
With the biometric, the issue is going to be whether the
Congress wants to appropriate the money for whatever margin is
left after the enhanced biographic. Our plan, our plan to use
enhanced biographic as a platform for that, is in final
clearance, and we will share that with you as well.
Senator Sessions. Well, I had a long--a year or more--
intense discussion on this subject with Secretary Ridge, and
they met with international stakeholders, and it went on months
and months and months. And I insisted that the only system that
really works based on your experience as a Federal and State
prosecutor, as I have had that same experience, it is the
fingerprints that are in every police officer's file. It is the
fingerprint that is taken when a person is arrested somewhere
in the United States and becomes a fugitive. And the
fingerprint is the basic basis for identifying fugitives.
So when he left, after refusing to commit, he left one bit
of advice. He said we should have a biographic system that
should be--the biometric system should be the fingerprint, to
his successors. And I do believe that that is the system that
works.
Is there any plan not to have that?
Secretary Napolitano. No. What we are planning is to go in
phases. The first phase is the enhanced biographic, which we
are a long way toward implementing right now, and then use that
as a platform for the biometric.
Senator Sessions. Well, I would just say that in my view it
should have been the biometric all along. You should have been
working on that, and we would have had that done a lot sooner
than 4 years. Otherwise, when you indicate you are not going to
look for people who have overstayed, then you basically are
saying we do not intend to take any effort to enforce really an
entry-exit system in the United States. And that allows the
countries that are approved for visa waiver, I think, to have
an unfair, unlimited entry to the United States.
Secretary Napolitano. Senator, we have gone back and looked
at visa overstays, and we have racked and stacked them
according to biographic information we have about the
overstays, turning that information over to ICE to prioritize
its enforcement operations. And that work is already underway.
The problem or the logistical--the reason why there is no
biometric system at exit, quite frankly, is it is not easy. The
lanes and the ports have never--they have always been designed
for entry. The architecture has never really been designed for
exit. So that is an issue. And then cost and manpower are
issues.
Senator Sessions. Maybe a briefing from your staff would be
helpful to me.
Secretary Napolitano. We would be happy to provide that.
Senator Sessions. Thank you, Mr. Chairman. I am over my
time.
Senator Coons. Thank you, Senator Sessions.
Senator Blumenthal, I will defer to you.
Senator Blumenthal. Thank you. Thank you, Madam Secretary,
for your service and for your very steadfast and effective work
on behalf of our national security and your words earlier on
behalf of the Secret Service. I think all of us share your view
that they do, to use your word, a ``marvelous'' job of
protecting the President and many other law enforcement
functions.
I want to follow up on a line of questioning that Senator
Graham began in terms of looking forward, the kinds of systems,
maybe analogizing the Secret Service to the military, that are
used in that context. And I wonder if you have given any
thought to additional steps that can be taken to safeguard
against but also monitor the kinds of abuses that obviously
occurred--or allegedly occurred here.
Secretary Napolitano. We are intent, Senator, on doing a
thorough examination of how we do it now and what we need to do
to improve, to make sure this never happens again. So all those
kinds of options are on the table.
Senator Blumenthal. Thank you.
Switching to a different subject, I was recently approached
by a couple, a same-sex couple who are married under
Connecticut law. One of them is a citizen of the United States;
the other is not. And I wrote to you, and I want to thank you
for your assistance in connection with their application for a
green card to be held in abeyance. You are probably familiar
with the problems that arise under these circumstances. But,
eventually, we need a solution like the Uniting Families in
America Act that can provide some longer-term solution to this
problem.
But I wonder whether we can establish a policy of not
deporting or, in other words, holding green cards for same-sex
couples, one of whom is here, the other seeking a green card.
Secretary Napolitano. Senator, the legal advice we have
been given is that unless and until the law is overturned by
the court--and I am talking as to DOMA--which the Department of
Justice has urged be done, but until that happens, we cannot
unilaterally give green cards based on that. What we have done,
however, is when we have same-sex couples, if they fall within
the other criteria of our priority memo, our prosecutorial
discretion memo, that allows us to intercede with removal and
some of the other actions.
Senator Blumenthal. I am a strong supporter, as are other
members of this Committee, of repealing DOMA, the respect for
marriage act, which would provide a comprehensive solution. I
have been approached by other similar couples who have enormous
contributions to make to this country and whose families are
every bit deserving of the kind of recognition that we accord
to heterosexual couples. And so I hope that I can work with you
on this area of trying to devise solutions in the meantime that
will enable those couples to continue to be families here, as
we need and they deserve. Thank you.
Secretary Napolitano. Yes, absolutely.
Senator Blumenthal. Thank you, Madam Secretary.
Thank you, Mr. Chairman.
Senator Coons. Thank you, Senator Blumenthal.
Senator Durbin, I will defer to you.
Senator Durbin. Madam Secretary, thank you. I have been
trying to juggle schedules, and you have been very patient
waiting here. Thank you for your service. I would like to ask
you a few questions about the DREAM Act, which you and I have
talked about from time to time.
Secretary Napolitano. Yes.
Senator Durbin. Yesterday Senator Schumer and I held a
hearing on Senate bill 1070, the controversial Arizona law, and
I talked about seven Arizona residents who would qualify for
the DREAM Act, but also would be the targets of the Arizona
law. It is beyond reasonable suspicion that they are
undocumented. They have stated it publicly. All of them are
either attending college or are graduates of Arizona State
University with degrees in engineering as an example.
You were asked by a bipartisan group of Senators to suspend
deportations of DREAM Act students, and in response, you and
the President have established a new deportation policy. And
under this policy, as I understand it, it is a high priority to
deport those who have committed serious crimes or are a threat
to the public while it is a low priority to deport individuals
who have been in the United States since childhood, like those
who are eligible for the DREAM Act.
Last night, we received updated statistics I requested on
the review of deportations that DHS is conducting under your
policy. There are currently more than 300,000 pending
deportation cases. Of these, ICE has reviewed 219,554.
Approximately 16,544 cases--7.5 percent--have been identified
as eligible for administrative closure. Of these cases, 2,722,
or 1.2 percent, have actually been closed.
Please explain the difference between the 7.5 percent of
deportation cases eligible to be closed and the 1.2 percent of
cases actually closed. When do you expect the percentage of
cases being closed to rise--or do you expect it to rise as the
review progresses? And when do you expect the review to be
complete?
Secretary Napolitano. Right, I think the difference is
primarily attributable to time. You know, we have been doing
this case-by-case review. We just started the pilots right
after Christmas, and we have moved now to go across the country
since then. So that is part of it. And part of it is that, as
we offer administrative closure, oftentimes the recipient of
the offer will ask for time to think about it.
So I think that will catch up, and I think we will be
closed with the case review by the end of the calendar year,
and then we will see what the numbers show.
Senator Durbin. You and I had another conversation about
work authorization, and this to me is a very basic issue which
would should discuss in this hearing. Historically, by
interpretation of the Department and under the previous
President, George W. Bush, in cases where there was deferred
action, these individuals were allowed to work, given a work
authorization. Now under the new policy, these individuals are
offered administrative closure, and your Department has taken
the position that individuals whose cases are administratively
closed cannot apply for work authorization. It creates a real
problem. You are saying to qualified individuals they will not
be deported, but they cannot work to support themselves or
their families. Many are going to end up in the underground
economy, which puts them at risk of exploitation and undercuts
the labor market. Only a few thousand people have had their
deportations halted so far, so I cannot imagine this will have
any significant impact on employment in America.
I ask you then why we are not at least making certain that
if we have deferred action or administrative closure that a
person is allowed to work.
Secretary Napolitano. Well, first, just to make sure we
have a common understanding of the record, we have continued
deferred actions and do that before cases get into the
administrative system. The administrative closure are cases
that are already on the docket and most of which are on the
non-detained docket, but a certain number are on the detained
docket. And those are the ones we are going through in addition
to evaluating new cases as they come in to see that they meet
the priorities that we have set.
So with respect to the work authorization, we are going
back now, in light of your concerns, and in light of the fact
that we now have some numbers to look at as opposed to when we
started this whole process, to see if we should make some
adjustments. So I would be willing to keep you apprised of our
efforts in that regard, but I thought about your concerns after
we spoke, and I thought they were serious concerns, and we are
exploring how best to address them.
Senator Durbin. Thank you, Madam Secretary. You and I both
know that the President is committed to the DREAM Act. He was a
cosponsor when he served in the U.S. Senate, and he has made
some important decisions to help these DREAM Act students. So I
hope that we can find a way to go further when it comes to
giving them an opportunity to work.
I also asked you about the Special Registration Program
that was created after 9/11. Arab Americans, American Muslims,
and South Asian Americans faced national origin and religious
profiling. At least that is what was suggested at a recent
hearing I held in this same room 2 weeks ago. The Special
Registration Program targeted Arab and Muslim visitors,
requiring them to promptly register with the INS or face
deportation. At the time I called for the program to be
terminated because there were serious doubts it would even help
combat terrorism.
We heard testimony that terrorism experts have concluded
that special registration wasted Homeland Security resources
and ended up alienating Arab Americans and some Muslims. More
than 80,000 people registered, more than 13,000 placed in
deportation. How many terrorists were identified by special
registration? None.
So last year, DHS terminated all special registration
requirements. However, because of special registration, many
innocent Arabs and Muslims still face deportation or are barred
from applying for citizenship. Last week, you issued a memo to
address the situation with these individuals. It provides the
individuals who failed to comply that they would not be
penalized if their noncompliance was involuntary,
unintentional, or otherwise reasonably excusable.
Will you ensure that the standards for noncompliance with
special registration are going to be applied fairly and
generously?
Secretary Napolitano. Yes, I will, and I will make sure
that ICE reports to me how that is being implemented.
Senator Durbin. I visited an immigration detention facility
in my State, the Tri-County Detention Center in deep southern
Illinois, and I applaud ICE for issuing its revised detention
standards recently. I am in the process of looking those over.
I am still concerned about some of the conditions I noted. Some
of them will take a deep investigation before I can say with
any certainty that there are violations that need to be
addressed.
But there was one thing that was very basic that caught my
attention, and that was lack of access to the telephone. It
turns out many of these people who are being detained, not
charged with a crime but being detained, are basically 200 or
300 miles away from family. It may seem like a small issue, but
to these immigration detainees, it is not. Currently, these
immigration detainees do not have the right to an appointed
attorney, and approximately 80 percent go forward without one.
And basically none of them have access to e-mail, unlike
Federal prisoners. And many of them are in remote facilities
such as the one I visited.
They repeatedly raised with me the concern about their
inability to communicate with the outside world, including
their family. They said they could not afford the phone calls
that cost well upwards of $1 or $2 a minute that they are being
charged. These are not wealthy people, you can imagine. They
are very poor.
We tried to use the phones, local phones, just to see how
they would work, and they did not. So there was spotty service
and high cost. A large number of county jails with which ICE
contracts actually profit by taking a cut of the exorbitant
fees that phone companies charge detainees, commissions of 30
to 60 percent on phone call charges. My office has been working
with your staff to come up with a solution. Do you have any
report of progress on this issue?
Secretary Napolitano. Not as I sit here, but I will follow
up. You are right to raise the concern, so let me follow up
with our staff, and I will be happy to get back to you.
Senator Durbin. Thank you. Thanks for appearing today, and
thank you, Mr. Chairman.
Senator Coons. Thank you, Senator Durbin.
Madam Secretary, I think I have the honor of the last
questions of the oversight hearing today, and I appreciate your
patience and your diligence before the Committee today. I was
reminded in your opening testimony just how challenging your
job is by the fact that you casually referenced that you have a
daily threat brief. You supervise the third largest Federal
agency. You have a scope of responsibility that I think is
awesome. And the challenge that you and your leadership team
face of striking an appropriate balance between security,
privacy, and commerce is a very difficult and delicate balance,
and I just want to start by thanking you for your service. I
have known you since you were an Attorney General and have
always been impressed with your record of service.
First, just on the Secret Service scandal, if I might,
there has been some suggestion in the press today, I think in
the Washington Post, that this is actually part of a
longstanding pattern or practice. In my previous role, I had
the honor of supervising a local law enforcement agency, and I
know how devastating to morale and even to operations such
incidents can be. This particular incident is very troubling,
and I know that there is an aggressive and far-reaching
investigation underway.
But have there been allegations of comparably serious
misconduct related to the Office of Professional Responsibility
in the past? And what steps specifically have you directed
Secret Service Director Sullivan to take to ensure that this
particular type of misconduct does not occur again?
Secretary Napolitano. To my knowledge, there have been no
similar type incidents reported to the Office of Professional
Responsibility. I cannot speak to the Inspector General, that
is a separate department, but not as to OPR.
What the Director is doing is really reviewing training,
supervision, going back, talking to other agents, really trying
to ferret out whether this is a systemic problem. If it is,
that would be a surprise to me. I must say, as someone who has
been the Service Secretary for 3-1/2 years now, I have found
the men and women I work with to be extremely professional and
the men and women I come into contact with to be extremely
professional.
But we want to make sure that we get to the bottom of this,
that we deal strongly with those who committed the misconduct
and gave the report--that has already been dealt with quite a
lot of speed--and that we ferret out any other problems,
because, you know, the men and women of the Secret Service do
not deserve to have their reputations besmirched.
Senator Coons. I want to commend you for how swiftly the
investigations proceeded. I just wanted to reassert what I
think we share, which is a conviction that it needs to be not
just this incident but a far-reaching investigation that can
reassure the American public that this is not somehow an agency
where this was routinely tolerated or broadly practiced, that
this truly is an outlier incident.
I also at the outset just want to thank you. The last time
you were before us, I asked a question about Customs and Border
Patrol and the interdiction of counterfeit or allegedly
counterfeit materials. You have just implemented a new
administration policy that allows CBP agents, when they seize
goods at the border that are believed to be possibly
counterfeit, to share that information with the rights holders.
And I think that is a good and strong advance. I had introduced
legislation, but given how swiftly legislation is moving here,
I am glad that the administration has embraced that change in
practice and policy.
I wanted to dedicate most of our time to cybersecurity. I
share Senator Franken's deep concerns about privacy and how we
strike an appropriate balance, but also Senator Whitehouse's
grave concerns that if we fail to effectively legislate in this
field, we leave our critical national infrastructure gravely
vulnerable and at risk. I note that in your fiscal year 2013
budget, cybersecurity gets a nearly 75-percent increase in
funding while the rest of the Department overall stays flat, so
I just want to commend that you are, in fact, prioritizing
delivering appropriate resources.
First, if I could, we talked about partnerships, fusion
centers. US-CERT is an impressive DHS cyber resource, and I
wondered how you see State and local resources in the law
enforcement community, in the National Guard. As we have
discussed before, Delaware and Rhode Island have network
warfare squadrons in the National Guard that I think can and
should play a positive role here.
What sorts of resource constraints do we have in terms of
effectively responding in the law enforcement community and in
the first responder community? My concern about a cyber threat
is that it will emerge--well, A, it is very broad and a very
serious threat today, but, second, a critical infrastructure
threat will emerge very quickly and require very rapid
response.
Secretary Napolitano. I think a couple of things, Senator.
I think obviously I share your concern. Working with State and
locals who are on the floor at the NCIC, the 24/7 watch center,
but it is helping with training, it is providing lots of
information. I think we provided 5,000 actionable bulletins
last year. CERT responded to 106,000 incidents itself. And so
training, information sharing, and then across the country in
certain locations we have Centers of Excellence, which are
helping us refine what we are doing, but also think ahead, what
is the next thing that is going to happen in the cyber world.
Senator Coons. I also am familiar with the CFATS program,
which has had some challenges. I think it has been successful
in promoting site safety at those sites that deal with
dangerous chemicals but really has significantly
underperformed, particularly in cybersecurity, and I just
wanted to encourage attention on that particular area that was
brought up in previous questioning by Senator Grassley.
Given the evolving cyber attack risk to our Nation's
critical infrastructure and given the debated provisions in
different bills, please just, if you would, explain for us the
particular strengths that DHS has regarding its capability and
capacity to administer potential regulations and protect our
infrastructure. Are you confident that DHS has the capacity, as
opposed to NSA or DOD, required to handle this critical
national threat?
Secretary Napolitano. Yes, and, in fact, as you noted, the
budget increase has been requested. We have had multiple
additions in the cyber area over the last 3 years. We already
are the Department that deals primarily with the private sector
and with critical infrastructure, and those mechanisms with
which to do that are already in place. And so on the civilian
side and on the dotcom side, as it were, DHS already has that
systemic protection role.
I think General Alexander testified to that several times.
DOD has it, of course, as to the dotmil environment.
So the resources are there. The experience is there,
meaning at DHS. We do have lessons learned from CFATS, no
doubt, but those lessons have been learned, and those lessons
learned give us greater confidence that we can administer this
properly.
Senator Coons. Last, if I could, some concerns about
privacy and then about bringing the public into this
conversation. I think it was Senator Lee who previously asked
about future attribute screening technology and its
development, something I would be happy to get a briefing on
about its trajectory. Recognizing that a lot of what is going
on in the dialog between the administration and Congress about
the cyber threat is occurring in secure briefings and that a
lot of the information that at least I, and I think many other
Senators, have received that makes it clear to us just how big
a threat this is and just how much loss there is here of
intellectual property and how much potential risk there is,
most of that critical information is shared with us in a secure
setting.
My concern is that this Committee previously legislated on
intellectual property theft through the PROTECT IP Act and a
comparable committee in the House legislated, some would argue
overreached, in the Stop Online Piracy Act. And there was a
very broad and unexpectedly strong national response to that by
engaged and motivated citizens who were deeply concerned, with
some legitimacy, that there was some real threat to their
privacy and to the vibrancy of the Internet.
My real concern here is that if we are not sufficiently
bringing the public along in striking an appropriate balance
here between privacy, security, and commerce, we may face a
comparable unexpected, abrupt national backlash against these
legislative efforts. And given how rarely we legislate on
issues this critical, I am deeply concerned that we not then
lose a moment, that we not create a moment of real
vulnerability when you have worked so hard to craft a structure
that works.
Senator Franken asked you previously about how the
administration in its proposals maybe has done a stronger job
of recognizing and validating privacy concerns. Any advice for
me about how we can, while recognizing the limitations of
information that must be held secure, more effectively engage
the public in this dialog on the balance between security and
liberty?
Secretary Napolitano. Well, we have tried to do it by
sharing information with the public through a variety of means.
I think it is significant that when there have been briefings
in a classified setting, you had sitting there the head of the
Joint Chiefs, the head of the NSA, the head of the FBI, the
second in charge of the DNI, the second in charge of the DOJ,
and myself, all saying the same thing: This is a big risk, it
is on us. We need some way to protect the Nation's core
critical infrastructure. We need some way to have information
sharing. We need to update and streamline some of the statutes
that exist now.
In terms of privacy, I think that was built into
particularly the Collins-Lieberman bill, the bipartisan bill in
this chamber, providing for privacy, for independent privacy
oversight, limitations on how information can be used, and the
like. I think we just need to continue to emphasize the
differences between that and some of the other approaches.
Senator Coons. I agree with you. Those secure briefings
have been successful. They have been in my case hair raising,
at times alarming. But the unified and broad engagement by this
administration in ensuring that the Senate is briefed is
commendable. I just am concerned that when I go and talk in my
home State of Delaware, I do not hear the same level of broadly
shared understanding of just how real, just how constant, and
just how present a threat this is to our intellectual property,
to our critical infrastructure, and to the vibrancy of our
Nation.
Let me just ask a last question or area, and that would be
immigration. I was struck--there was a recent Pew report that
came out, I believe, saying that for the first time in 30 years
there are more illegal immigrants returning to Mexico from the
United States than coming here, and I think that is in part due
to strengthening of the economy there, but it is also, I think,
the unprecedented action of this administration to hire more
border guards, deport more undocumented workers than ever
before, and really bear down and engage in strong, smart, and
effective border security and enforcement. And I wondered if
you had any comment on that.
Secretary Napolitano. I do. In fact, I looked at the Pew
study yesterday, and what it is talking about are long-term
migration trends, and what it identifies is exactly what you
said: that the trend now is more out-migration than in-
migration. And it attributes at least part of that to the
record amount of personnel and technology infrastructure put on
the border, in part because there was bipartisan agreement by
the Congress to appropriate an additional $600 million to let
us do that job.
Our efforts now are sustaining that and making sure we stay
ahead of any surge or movement in illegal traffic along that
border and keep that border as safe and secure as we can.
Senator Coons. I think you have done a commendable job on
this, and it is, I think, important that the general public
realize that my side of the aisle, which is sometimes
mischaracterized as not being sufficiently vigorous in our
support of enforcement, shares that, that this was a bipartisan
effort. I hope you will make real progress in the enhanced
biographic exit program, and there was some real dialog about
that, but I do think I am cautiously optimistic we will find a
new common ground on a host of immigration issues, whether the
DREAM Act--I am a cosponsor along with Senator Durbin--H-1B
reform, STEM immigration, or uniting families.
Last, just a question on FEMA response. I think that
retaining airlift capacity in local National Guards and State
National Guards was critical in the State of Vermont,
represented by the real Chairman of this Committee, as well as
my State in the past when there were hurricanes or flooding or
other issues. I wondered if you had any comment about how the
President's funding request might affect the ability of State
National Guards to play an active, supportive role in disaster
response.
Secretary Napolitano. Senator, let me get back to you on
that because--are you asking about how our request with respect
to reforming the grants overall would affect first responders?
Are you asking specific to the National Guard?
Senator Coons. I think this is more a National Guard
capacity within the branch issue. So I may have asked a
question that is not directly in your----
Secretary Napolitano. Yes, I think that is probably more
appropriately addressed to the Department of Defense. But I
will say our entire work with FEMA has been to be a team with
local and State responders as opposed to the Feds being in
charge. And I think that teamwork approach has been well
received and has worked very effectively.
Senator Coons. I would agree, and I hear all the time from
our first responder community in Delaware how grateful they
have been for the shared training, the equipment, the grants
programs. I actually helped one of our local volunteer fire
companies write their annual grant in a memorable all-nighter,
and I just wanted to close by thanking you for your strong
leadership of the Department and for the Department's sustained
and significant contribution to the security and liberty of the
people of the United States.
Thank you very much for your testimony, Madam Secretary. We
will leave the record open for a week for members of the
Committee who were not able to join us but might want to submit
additional questions for the record.
Secretary Napolitano. Thank you, Chairman.
Senator Coons. This hearing is adjourned.
[Whereupon, at 11:59 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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