[Senate Hearing 112-621]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 112-621

         OVERSIGHT OF THE U.S. DEPARTMENT OF HOMELAND SECURITY

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 25, 2012

                               __________

                          Serial No. J-112-73

                               __________

         Printed for the use of the Committee on the Judiciary







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                       COMMITTEE ON THE JUDICIARY

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















                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

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

                              ----------                              


                       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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