[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
TERRORISM AND THE VISA WAIVER PROGRAM
=======================================================================
JOINT HEARING
BEFORE THE
SUBCOMMITTEE ON NATIONAL SECURITY
AND THE
SUBCOMMITTEE ON HEALTH CARE, BENEFITS, AND ADMINISTRATIVE RULES
OF THE
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
DECEMBER 10, 2015
__________
Serial No. 114-145
__________
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
JASON CHAFFETZ, Utah, Chairman
JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland,
MICHAEL R. TURNER, Ohio Ranking Minority Member
JOHN J. DUNCAN, Jr., Tennessee CAROLYN B. MALONEY, New York
JIM JORDAN, Ohio ELEANOR HOLMES NORTON, District of
TIM WALBERG, Michigan Columbia
JUSTIN AMASH, Michigan WM. LACY CLAY, Missouri
PAUL A. GOSAR, Arizona STEPHEN F. LYNCH, Massachusetts
SCOTT DesJARLAIS, Tennessee JIM COOPER, Tennessee
TREY GOWDY, South Carolina GERALD E. CONNOLLY, Virginia
BLAKE FARENTHOLD, Texas MATT CARTWRIGHT, Pennsylvania
CYNTHIA M. LUMMIS, Wyoming TAMMY DUCKWORTH, Illinois
THOMAS MASSIE, Kentucky ROBIN L. KELLY, Illinois
MARK MEADOWS, North Carolina BRENDA L. LAWRENCE, Michigan
RON DeSANTIS, Florida TED LIEU, California
MICK MULVANEY, South Carolina BONNIE WATSON COLEMAN, New Jersey
KEN BUCK, Colorado STACEY E. PLASKETT, Virgin Islands
MARK WALKER, North Carolina MARK DeSAULNIER, California
ROD BLUM, Iowa BRENDAN F. BOYLE, Pennsylvania
JODY B. HICE, Georgia PETER WELCH, Vermont
STEVE RUSSELL, Oklahoma MICHELLE LUJAN GRISHAM, New Mexico
EARL L. ``BUDDY'' CARTER, Georgia
GLENN GROTHMAN, Wisconsin
WILL HURD, Texas
GARY J. PALMER, Alabama
Sean McLaughlin, Majority Staff Director
Dimple Shah, Deputy Counsel, National Security Subcommittee
William Marx, Clerk
David Rapallo, Minority Staff Director
Subcommittee on National Security
RON DeSANTIS, Florida, Chairman
JOHN L. MICA, Florida STEPHEN F. LYNCH, Massachusetts,
JOHN J. DUNCAN, JR., Tennessee Ranking Member
JODY B. HICE, Georgia ROBIN KELLY, Illinois
STEVE RUSSELL, Oklahoma, Vice Chair BRENDA L. LAWRENCE, Michigan
WILL HURD, Texas TED LIEU, California
------
Subcommittee on Health Care, Benefits and Administrative Rules
JIM JORDAN, Ohio, Chairman
TIM WALBERG, Michigan MATT CARTWRIGHT, Pennsylvania,
SCOTT DesJARLAIS, Tennessee Ranking Member
TREY GOWDY, South Carolina ELEANOR HOLMES NORTON, District of
CYNTHIA M. LUMMIS, Wyoming Columbia
MARK MEADOWS, North Carolina BONNIE WATSON COLEMAN, New Jersey
RON DeSANTIS, Florida MARK DeSAULNIER, California
MICK MULVANEY, South Carolina, Vice BRENDAN F. BOYLE, Pennsylvania
Chair JIM COOPER, Tennessee
MARK WALKER, North Carolina MICHELLE LUJAN GRISHAM, New Mexico
JODY B, HICE, Georgia Vacancy
EARL L. ``BUDDY'' CARTER, Georgia
C O N T E N T S
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Page
Hearing held on December 10, 2015................................ 1
WITNESSES
Ms. Kelli Ann Burriesci, Deputy Assistant Secretary, Screening
Coordination, Office of Policy, Department of Homeland Security
Oral Statement............................................... 7
Written Statement............................................ 10
Ms. Janice Kephart, Director, Homeland Security Solutions,
Morphotrak LLC
Oral Statement............................................... 17
Written Statement............................................ 19
Mr. Brian Michael Jenkins, Senior Advisor and President, Rand
Corporation
Oral Statement............................................... 40
Written Statement............................................ 42
Mr. Ken Gude, Senior Fellow, National Security Team, Center for
American Progress
Oral Statement............................................... 59
Written Statement............................................ 61
APPENDIX
March 6, 2015, GAO letter regarding Update on Firearm and
Explosives Background Checks Involving Terrorist Watchlist
Records, submitted by Ms. Lawrence............................. 116
TERRORISM AND THE VISA WAIVER PROGRAM
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Thursday, December 10, 2015
House of Representatives,
Subcommittee on National Security, joint with the
Subcommittee on Health Care, Benefits and
Administrative Rules,
Committee on Oversight and Government Reform,
Washington, D.C.
The subcommittees met, pursuant to call, at 10:09 a.m., in
Room 2154, Rayburn House Office Building, Hon. Ron DeSantis
[chairman of the Subcommittee on National Security] presiding.
Present: Representatives DeSantis, Jordan, Russell,
Mulvaney, Mica, Walberg, Hice, Gowdy, Meadows, Walker, Carter,
Chaffetz, Lynch, Cartwright, Norton, Lawrence, Lieu, Watson
Coleman, DeSaulnier, Cooper, Lujan Grisham, and Cummings.
Mr. DeSantis. This Subcommittee on National Security and
the Subcommittee on Health Care, Benefits, and Administrative
Rules will come to order.
Without objection, the chair is authorized to declare a
recess at any time.
The United States, our Western allies, and, indeed, the
civilized world are facing a global jihad that is dedicated to
the destruction of our way of life. While certain terrorist
groups, such as ISIS, receive understandable attention, the
global jihadist movement is not limited to members of ISIS.
Indeed, the terrorists who massacred 13 Americans in California
were dedicated to jihad before ISIS even rose to prominence.
To protect the American people, terrorists cannot be
allowed to gain access to the United States. To gain entry into
the United States, citizens of most countries must obtain visas
issued at overseas embassies and consulates by the State
Department following an in-person interview with the Department
of State consular officer. An exception to this rule is the
Visa Waiver Program. Established in 1986, the program allows
foreign nationals of 38 countries to enter the United States as
temporary, non-immigrant visitors for up to 90 days without
having to obtain a visa or undergo an in-person interview at a
U.S. consulate.
The terrorist attacks in Paris on November 13 demonstrated
that the Visa Waiver Program represents a potential
vulnerability for our country. Those terrorists killed nearly
130 people and caused over 350 injuries. At least five of the
attackers were French nationals, two of whom were living in
Belgium, and one was a Belgium national. Nationals of both
France and Belgium are able to enter the United States under
the Visa Waiver Program.
Accordingly, at least six of the Paris attackers could have
attempted to enter this country under the program. The Belgium
neighborhood of Molenbeek, for example, is notorious for being
a hotbed of Islamic jihadists. Known as jihad central,
Molenbeek is a hellhole that is filled with Belgian national
Islamic radicals who qualify to travel to the U.S. without a
visa under the Visa Waiver Program.
And, of course, many Islamic jihadists in places such as
Syria are actually Western passport holders who could then come
to this country with those Western passports after fighting
jihad in Syria and Iraq. This exposes the American people to
the possibility that these militants, after receiving training
and undergoing further radicalization in the hotbed of the
jihad, could exploit the Visa Waiver Program to enter our
country.
With this in mind, the U.S. must ensure that all
appropriate safeguards are in place to ensure that the program
cannot be exploited. A properly functioning biometric exit
system is one of those safeguards. Biometric exit and overstay
reporting was required as part of the Visa Waiver Permanent
Program Act in 2007. Despite this, the U.S. does not have an
exit system at our air, sea, and land ports of entry to track
overstays as required as part of the Visa Waiver Program.
In 2011, the former Commissioners of the 9/11 Commission
concluded, quote, ``The Department of Homeland Security
properly supported by the Congress should complete as quickly
as possible a biometric entry-exit screening system.'' As
important as it is to know when foreign nationals arrive, it is
also important to know when they leave. Full deployment of the
biometric exit should be a high priority. Such a capability
would have assisted law enforcement and intelligence officials
in August and September of 2001 in conducting a search for two
of the 9/11 hijackers that were in the United States on expired
visas.
Instead of a biometric exit system, DHS has moved to
implement a biographic exit system, despite the fact that
former DHS Secretary Janet Napolitano told the GAO that she has
no confidence in the current system. Even if a biometric exit
system were implemented tomorrow, it is doubtful, though, that
the administration would take the necessary action against the
vast majority of visa violators. The Obama administration has
circumvented duly-enacted immigration laws through memoranda
and executive action. Under current law, overstaying a visa or
violating its terms is sufficient to render a foreign national
deportable. But now, pursuant to the administration's so-called
priorities, only aliens who are found to have significantly
abused the visa or Visa Waiver Programs are deportable. All too
often, however, such offenders are only found after they have
committed crimes in this country. The administration has taken
steps to water down the terrorism bars that render aliens
inadmissible or deportable by broadening the exemption
authorities and redefining what constitutes material support.
Finally, although the government may argue that even aliens
entering under the Visa Waiver Program are subject to some
level of background check, more stringent checks than the Visa
Waiver Program applicants are subject to have their
limitations. For example, they failed to prevent Tashfeen
Malik, who, along with her husband, Syed Farook, killed 14
people in San Bernardino, California, last week before she
entered the United States on a fiance(e) visa in July 2014. And
this was supposed to be a rigorous examination.
This is not to say that Congress should attempt to protect
the American people--this is to say that Congress should
attempt to protect American people from those who would come
here to do us harm. In fact, the House has just passed
legislation to address concerns related to the exploitation of
both our refugee admission process and the Visa Waiver Program.
We will continue to review other immigration vulnerabilities
that impact our security. Today, as the House has passed the
visa waiver legislation, we assess the mechanisms in place
within the Visa Waiver Program that protect our national
security and help identify returning foreign fighters and
identify further steps that can be made to strengthen the Visa
Waiver Program.
I thank our witnesses for their testimony today and look
forward to examining issues related to the impact of terrorism
on the Visa Waiver Program and potential improvements to the
program.
And, with that, I yield to the ranking member, Mr. Lynch.
Mr. Lynch. Thank you, Mr. Chairman.
I would also like to thank the witnesses for your
willingness to appear before this committee and help us with
our work. As recently noted by William McCants of the Brookings
Institution and author of ``The ISIS Apocalypse,'' the horrific
terrorist attacks in Paris on November 13 evidenced a marked
shift in the strategy of the Islamic State, also known as
Daesh. By perpetrating a series of centrally planned and
coordinated terrorist attacks against civilian targets in the
West, the Islamic State has crossed some kind of Rubicon in the
words of Mr. McCants and definitely shifted in their thinking
about targeting their enemies.
This shift in strategy is even more concerning given the
continued terrorist threat posed by foreign fighters returning
from Iraq and Syria. According to the bipartisan report on
foreign fighters released by the House Homeland Security
Committee in September of this year, approximately 10 percent
of so-called returnees seek to engage in terrorist activity and
recruitment upon their return from conflict zones. This
statistic took form in the United States in 2015 with the
arrest of several American returnees on terrorist-related
charges. These dangers are exponentially greater given the
Islamic State's widespread use of social media as a global
recruitment and radicalization tool.
The Islamic State has more than demonstrated its savagery
and willingness to expand its terrorist activities beyond its
controlled territories in Iraq and Syria. And it is imperative
that we continue to work together and take effective steps to
enhance our national security against the threat of a homegrown
terrorist attack.
Of course, just last week, we witnessed the tragic mass
shooting in San Bernardino, California, the most devastating
terrorist attack on U.S. soil since September 11 and one that
the Islamic State has since praised in its daily online
broadcast. So while we offer our prayers for the victims and
their families, we also must take reasonable measures promptly
to prevent this from happening again.
One area where we do have significant bipartisan agreement
is the subject of today's hearing, the Visa Waiver Program,
administered by the Department of Homeland Security in
consultation with the State Department. Beginning in 1986, back
in 1986, during the Reagan administration, the Visa Waiver
Program was allowed--has allowed foreign citizens from
specified countries to enter the United States for the purpose
of business or tourism for up to 90 days without a visa. The
program reflects a security partnership between the U.S. and 38
participating countries.
By establishing minimum standards for acceptable travel,
including machine-readable passport use, information sharing on
lost or stolen passports via INTERPOL, the Visa Waiver Program
has also served to promote commerce and tourism in the United
States. According to the Department of Homeland Security, in
fiscal year 2014, the U.S. accepted more than 20 million Visa
Waiver Program travelers, who spent an estimated $84 billion on
goods and services.
However, despite the economic benefits and security
standards that stem from the Visa Waiver Program, its sheer
size, traveler volume, and the continued threat of terrorist
activity worldwide demand that we make every effort to
strengthen that program. As reported by the Government
Accountability Office in 2012, approximately 364,000
individuals traveled under the program in 2010 without verified
approval from the program Electronic System for Travel
Authorization. I would also note that the attacks on Paris
involved the participation of several individuals with French
and Belgian citizenship, and that Belgian federal prosecutors
have indicated that coordination of the Paris plot may have
extended to Budapest, Hungary. France, Belgium, and Hungary are
all Visa Waiver Program countries.
The Department of Homeland Security has taken steps to
enhance Visa Waiver Program security since November of 2014.
Most recently, this month, the Obama administration announced
that the Department of Homeland Security will modify the
program's electronic travel authorization database to collect
applicant information regarding past travel to conflict zones
or terrorist safe-haven countries.
However, the administration itself has noted that more
robust program security measures will require congressional
authorization and approval. To this end, the House passed H.R.
158, the Visa Waiver Program Improvement Act, by a 407-to-19
vote on Tuesday. This bipartisan legislation, which I
cosponsored, seeks to reform the Visa Waiver Program through
stringent security and oversight requirements. Among various
program enhancements, the bill would prohibit individuals who
have traveled to Iraq, Syria, Iran and other specified nations
since March 1 of 2011 from entering the U.S., unless they first
undergo biometric screening and interviews by U.S. officials
and obtain a regular travel visa. The bill would also require
the Department of Homeland Security to remove a country from
the program if it does not fully vet or share information on
citizens traveling to the U.S. who could pose a threat to
national security.
Beginning of April 1, 2016, H.R. 158 would further mandate
that all passports from Visa Waiver Program countries be
machine-readable, electronic passports that are fraud-resistant
and contain comprehensive biographic and biometric information
as determined by the Department of Homeland Security. We must
continue to work in a bipartisan manner to ensure that these
and other program reforms become law.
Mr. Chairman, I look forward to the further discussion of
this Visa Waiver Program with our witnesses as we examine any
additional security measures proposed by Congress and the
administration to enhance program security.
I want to thank you. And I yield back the balance of my
time.
Mr. DeSantis. The gentleman yields back.
The chair now recognizes Mr. Jordan, the chairman of the
Health Care, Benefits, and Administrative Rules Subcommittee.
Mr. Jordan. I thank the chairman. And I would just thank
you for putting together this hearing today and would yield
back. I just want to get to the witnesses' testimony and get on
with the hearing. So thank you so much for this important
hearing.
Mr. DeSantis. Well, it is one of many things, I think,
that, if you look, we have really three facets. One is dealing
with terrorists overseas who are creating caliphate and have
territory that they are in charge of. They can recruit. They
can train. They can obviously cause a lot of damage there.
The second part is preventing people like that from coming
into our country. This is just one part of that. I mean, the
fact that Tashfeen Malik received a visa, she should not have
been allowed into this country. And we have to figure out a way
to deal with that.
And the third, which we will probably be dealing with on
this committee at some point, is how to deal with people who
are radicalized here at home.
With that, I will yield to Mr. Cartwright for 5 minutes.
Mr. Cartwright. Thank you, Mr. Chairman.
And I also want to thank our witnesses for being here
today. I think this is an important topic. We ought to engage
in a bipartisan dry-eyed review of the situation.
And I want to start by clearing up a few misconceptions
that some people may have about the Visa Waiver Program. The
Visa Waiver Program permits citizens of 38 countries in Western
Europe and other nations to travel in the U.S. without first
obtaining a visa. But some have described the Visa Waiver
Program as visa-free travel. And that is not quite correct. For
example, a German citizen cannot grab their passport, arrive at
a major airport in Germany, buy a ticket, and hop a flight to
Washington, D.C. It doesn't work that way. And we have an
illustration that actually the Heritage Foundation created to
show the extensive counterterrorism screening that every
prospective Visa Waiver Program traveler has to undergo before
successfully entering the U.S. You can see it up on the screen.
You can see it is a very simple process.
You can follow along as I talk about it. A perspective Visa
Waiver Program traveler has to go through a vetting process by
the Department of Homeland Security. Travelers are required to
complete an online security screening form prior to departing
their country. The screening form includes biographic
information, criminal background information, and any previous
visa revocations. This information is continuously vetted
against U.S. law enforcement and intelligence agency watch
lists to determine if the traveler poses a risk. DHS also
conducts extensive preflight screenings for air travelers, and
it includes checking passenger airline reservation data against
terrorist watch lists. In addition, DHS conducts pre-arrival
screenings to vet passenger manifest data indicating who is on
board against, again, the terrorist watch list. Once a Visa
Waiver Program traveler arrives in the U.S., he or she must
undergo an additional level of screening in the form of an in-
person inspection at the port of entry by CBP, Customs and
Border Patrol. The first inspection includes a validation of
travel and identification documents and the collection of
biometric data, such as fingerprints and a photograph for
first-time Visa Waiver Program travelers. Following this
primary inspection, the VWP traveler must then submit to a
thorough inspection of their physical self, their bags, their
documents, and their electronics.
No VWP traveler can be admitted to the U.S. without
completing all security checks. And according to DHS, since
2008, almost 6,000 travelers have been denied travel to the
U.S. under this program because of national security hits to
one of the terror watch lists. In addition, nearly 166,000 more
have been denied traveling here for using lost or stolen
passports. So, as far as we know, terrorists are always looking
for new ways to skirt antiterror measures. And that makes
sense. That is why we have to be ready to respond, to alter
measure as new threats arise. That is why I commend the
administration for taking steps to close security gaps that we
find in the Visa Waiver Program.
On Sunday night, the President called on us here in
Congress to provide the legal authority for the administration
to implement these changes as soon as possible. And just 2 days
ago, the House voted on and passed a bipartisan bill to tighten
restrictions and enhance security under this Visa Waiver
Program.
Now, in light of the terrorist attacks in Paris and San
Bernardino, the administration and Congress should evaluate
what additional measures are needed to tighten security while
still preserving American values of inclusiveness and
nondiscrimination. It is crucial we don't make rash policy
decisions without thinking about the consequences and the
implications and certainly the prices of our actions.
I caution my fellow Members of Congress to avoid knee-jerk
reactions based on fear and focus on a more measured,
comprehensive approach to national security. That approach
should include addressing terrorist radicalization and
recruitment; the Islamic State's operation capacity and
community resilience; and, an often overlooked issue,
combatting homegrown terrorist threats posed by our own
sovereign citizens, militias, and other antigovernment
terrorists. We also ought to find ways to unite with other
countries to defeat ISIS.
Importantly, this approach should include Congress passing
legislation that will finally close the terrorist gun loophole
and prevent known or suspected terrorists from purchasing
firearms or explosives at any gun shop in America. Congress can
play a key role in defeating terrorist groups like ISIS and
protecting the American people. And that is why I am happy we
are having this hearing today.
And I yield back, Mr. Chairman.
Mr. DeSantis. Thank you.
I will hold the record open for 5 legislative days for any
members who would like to submit a written statement.
We will now recognize our witnesses. I am pleased to
welcome Ms. Kelli Ann Burriesci, Deputy Assistant Secretary for
Screening Coordination at the Office of Policy, Department of
Homeland Security; Ms. Janet Kephart, director of Homeland
Security Solutions at MorphoTrak, LLC; Mr. Brian Michael
Jenkins, senior adviser and president of the RAND Corporation;
and Mr. Ken Gude, senior fellow on the National Security Team
at the Center for American Progress.
Welcome all.
Pursuant to committee rules, all witnesses will be sworn in
before they testify. If you would please rise and raise your
right hand. Do you solemnly swear the testimony you are about
to give will be the truth, the whole truth, and nothing but the
truth, so help you God?
All right. Thank you. Please be seated.
All witnesses answered in the affirmative.
In order to allow time for discussion, please limit your
oral testimony to 5 minutes. Your entire written statement will
be made part of the record.
Ms. Burriesci, you are up for 5 minutes.
WITNESS STATEMENTS
STATEMENT OF KELLI ANN BURRIESCI
Ms. Burriesci. Thank you, Chairman DeSantis, Chairman
Jordan, Ranking Member Lynch, Ranking Member Cartwright, and
distinguished members of the subcommittee. Thank you for the
opportunity to testify on behalf of DHS on the U.S. Visa Waiver
Program.
The Visa Waiver Program permits citizens of 38 countries to
travel to the United States for business or tourism stays for
up to 90 days without a visa. That does not mean travelers are
able to board a plane with no security checks. ``Waiver'' does
not mean waiving security. There are a host of checks conducted
as a result of each applicant being required to have an
approved Electronic System for Travel Authorization, or ESTA.
In addition, countries are required to meet security standards.
And they are reviewed every 2 years to ensure these standards
are maintained. DHS has and will continue to adapt the VWP to
meet the challenges of the modern threat environment.
Let me walk through three security pillars that are
required of VWP countries but not of countries whose citizens
must obtain visas. First, countries are required to meet
multiple statutory and policy requirements. These include,
among others, entering into agreements with the United States
to share information about known and suspected terrorists,
reporting to the Stolen and Lost Travel Documents database, and
issuing new passports. As a result of the information-sharing
arrangements, VWP countries have provided information on 9,000
known or suspected terrorists to the United States. And VWP
countries are responsible for nearly 70 percent of the records
in INTERPOL's Stolen and Lost Travel Documents database.
The second pillar is screening of the travelers. All
travelers coming to the United States are screened, regardless
of whether they were an ESTA or a visa. ESTA applicants are
vetted against the same biographic databases as visa travelers.
This includes DHS holdings, the FBI's Terrorist Screening
Database, State Department's CLASS system, and INTERPOL
databases.
ESTA applications are also vetted by the National
Counterterrorism Center. This screening occurs before travelers
depart for the United States. DHS also recurrently vets ESTA
data on a daily basis, which means that even though an
applicant has an approved authorization for travel, an ESTA is
continuously reviewed throughout its validity period for new
derogatory information. If someone is a national security
concern, their ESTA application is not approved. Since ESTA's
inception, CBP has denied over 6,000 ESTA applications on
national security grounds. And, of course, DHS is vetting all
travelers before they depart for the United States and upon
arrival at a port of entry.
The third security pillar is the statutory requirement to
conduct an assessment at least every 2 years on each VWP
country to ensure security standards are maintained. DHS
conducts 19 VWP reviews annually, each review supplemented by
an intelligence assessment. Following the conclusion of every
review, DHS, in consultation with the State Department,
provides a report to Congress regarding the results and
designation determination. During our review, which takes
approximately 6 to 9 months, DHS assesses each country's
counterterrorism, law enforcement, immigration enforcement,
passport security, and border management capabilities. We
collect information from the government of the VWP country, the
U.S. diplomatic missions in that country, the Department of
State, Justice, and the intelligence community. Many reviews
also include thorough inspections of airports, seaports, land
borders, and passport issuance facilities. No other program
enables the U.S. Government to conduct such consequential
assessments of foreign partner security standards and
operations.
Those three pillars are important. But we cannot be
successful if we don't adapt to the evolving threat
environment. In November 2014, Secretary Johnson introduced new
data fields on the ESTA application. These new fields have
enabled CBP and NCTC to identify a large number of applicants
with potential connections to terrorism whose connections would
not have otherwise been known. Per the November 30 White House
announcement, we will make additional improvements to the
application that will grant us greater insight into prospective
VWP travelers who have been to Syria, Iraq, other conflict
zones.
In August 2015, the Secretary added further security
measures. These included full implementation of the required
information sharing arrangements, collection and analysis of
travel data, vetting against INTERPOL's Stolen and Lost Travel
Documents database, and making sure all VWP travelers use
secure e-Passports when traveling to the United States. The e-
Passport measure will be implemented very shortly. CBP is
already notifying ESTA applicants that they may not be able to
board a plane to the United States without an e-Passport.
The recent tragic events in Paris underscore the need for
the United States and its partners to swiftly implement these
VWP enhancements. In conclusion, and keeping in mind the VWP
program requires countries to meet strong security standards,
vets all VWP travelers against the same databases as a visa and
on a recurrent basis, and reviews each country to ensure
standards are maintained, the VWP provides significant security
benefits to the United States and its citizens.
I look forward to responding to your questions. And I've
submitted written testimony for the record. Thank you.
[Prepared statement of Ms. Burriesci follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. DeSantis. Thank you.
The chair now recognizes Ms. Kephart for 5 minutes.
STATEMENT OF JANICE KEPHART
Ms. Kephart. Good morning.
Chairmen DeSantis and Jordan, Ranking Members Lynch and
Cartwright, as well as esteemed members of this committee,
thank you for the opportunity to testify on terrorism and the
Visa Waiver Program.
I come before you today in my personal capacity as a former
9/11 Commission border counsel to augment the good work
conducted by the White House, DHS, and Congress since the
tragic November 13 terrorist attacks and, before that, the 14
years since 9/11. Enclosed in my written testimony you will
find 18 recommendations intended to address the terrorist
traveler threat from radicalized individuals in Europe who seek
to abuse the visa-free benefits of the VWP.
These recommendations include, first, how to secure the
overall Visa Waiver Program; second, how to improve individual
vetting of these travelers; and, third, how to further secure
our ports of entry against terrorists entry.
To be clear, the benefits of not having to obtain a visa
before entering the U.S. are beyond convenience. Visa-free
travel enables the terrorist to avoid biometric screening until
arrival in the U.S., investigations by ICE HSI visa security
units, security reviews by counterterrorism intelligence
officers at the National Counterterrorism Center, and
interviews conducted by consular officers trained in behavioral
anomalies.
But, first, before reviewing these recommendations, let's
make sure that the effort to revamp the VWP actually matches
the terrorist threat of VWP travel to America. I think we can
all agree that the threat evidence is pretty substantial and
includes outright direct threats from Daesh against the U.S.;
the ramped-up attacks against civilians we are seeing in Texas
and now in California; the guidebooks that are in my testimony
that Daesh itself are putting out, emphasizing faking identity
and passports to assure border crossing; and reports of Daesh
seeking to embed in the Syrian refugee populations in Europe.
Yet perhaps the most obvious evidence of the threat of
terrorist travel from European countries is that France, the
U.K., and Germany are all in the top 10 of producing ISIS
foreign fighters in the world, with numbers now in the
thousands. And these individuals have direct, legal, visa-free
access to our shores.
So what do we do? First, in regards to the VWP program, we
must require that all VW countries, as you all just passed in
legislation, replace all their passports with those that hold
biometric information that can be verified by our border
personnel. But replacing paper booklet passports with e-
Passports is not quite enough. Our ports of entry must be able
to read those passports to verify that the bearer of that
passport is the right one by conducting facial recognition
between the passport and the person standing in front of them.
Not only do we not do that for foreign nationals today, but DHS
has no capability right now to conduct facial recognition. They
can only match fingerprints because the Office of Biometric
Identity Management has yet to become fully multimodal in its
biometric matching capability.
Another serious issue, on a completely different topic, are
countries, like Malta and Cyprus, that put up their passports
for sale with no residency requirement. VWP countries that sell
citizenship outright to a potential terrorist should be made
ineligible for the program.
Moving on to the individual traveler, the online ESTA
application Kelli Ann has spoken of in-depth does add a layer
of security by requiring passport and other information from
the traveler in a timely manner so watch lists can be checked.
However, the form, as DHS knows well, depends upon the
applicant's veracity, which is not something that is usually in
a terrorist's toolbox. Despite the ESTA form's inherent
vulnerabilities, biographic information remains essential to
processing. But biometrics do need to be added to the mix. One
such opportunity for adding biometrics into the vetting of all
travelers is requiring all VWP countries to establish CBP
preclearance operations to remain in the program. Preclearance
authorities would encompass full admission procedures,
including authenticating the passport is valid; checking to
make sure the holder of the passport is the passport owner and
that their name, face, fingerprint, or iris biometrics do not
match any watch list. Preclearance would also be a win for
legitimate travelers who can arrive in the U.S. with minimal
cues and hassle. And the program itself would be stronger,
individual application processing more secure, and the U.S.
port of entry processing streamlined.
One last point I think we cannot overlook. The VWP tourist
overstay issue remains. The GAO tells us that 43 percent--43
percent--of VWP tourists make up the overstay population in the
U.S. Yet, as of 2013, there were over a million unmatched
records in our biographic arrival/departure system. Who knows
who amongst this group may be hiding in plain sight on U.S.
soil because we simply haven't the means to know who is here
and who is not and who may pose a threat amongst those
overstays.
I encourage Congress to continue oversight of the VWP
program, augment the good work that DHS is doing, improve
biometric immigration processing, including full biometric exit
implementation. Thank you. And I look forward to having further
discussions with you.
[Prepared statement of Ms. Kephart follows:]
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Mr. DeSantis. Thank you.
The chair now recognizes Mr. Jenkins for 5 minutes.
STATEMENT OF BRIAN MICHAEL JENKINS
Mr. Jenkins. Chairman DeSantis, Chairman Jordan, Ranking
Member Lynch, Ranking Member Cartwright, members of the
committee, thank you very much for inviting me to testify on
this important issue. There are two ways a foreign terrorist
organization can carry out attacks in the United States. One is
by persuading followers here to carry out attacks on their
behalf. And certainly both Al Qaeda and more recently ISIL have
exhorted their supporters here to do that. Both have had
limited success in persuading some individuals here to carry
out some attacks, in some cases with lethal consequences as we
have seen. Their greater success is limited by the lack of
traction that their ideology is having in the community here
and by the remarkably effective efforts of domestic
intelligence in uncovering and thwarting a number of these
threats.
The second way is by recruiting operatives abroad and then
sending them into the United States to carry out attacks. If we
look at the recent history, we see that the threat has been
mainly from homegrown terrorists. Of the 134 persons who since
9/11 have carried out or plotted terrorist attacks here on
behalf of jihadist ideology, 96 of them were U.S. citizens, 19
were legal permanent residents. In other words, 86 percent of
these individuals were radicalized while they were living here.
Eight more came into the country on various kinds of visas. One
came in or attempted to come in on the Visa Waiver Program.
That was Richard Reid, the so-called shoe bomber. Three had
earlier crossed the Mexican border illegally. The remaining
seven were asylum seekers, refugees, or others. That is not to
say that all of those came here with the intent of carrying out
terrorist attacks.
Now, the good news is that these numbers are small. There's
no obvious hole in the fences. Those who entered used several
paths depending on individual opportunities. The most common
way was simply ordinary visas. And I do want to underscore here
that it's not always clear that the visa interview is going to
be better at picking up some of these people than the system we
have in place for a visa work waiver.
While we may, however, draw some comfort from the fact that
terrorists are not pouring into the country, there's no basis
for complacency here. The threat is dynamic. Circumstances
change. Our security must adjust. And looking ahead, there are
some obvious concerns. The conflicts in Syria and Iraq will
certainly continue for the foreseeable future. It may take
years for the campaign currently directed against the so-called
Islamic State to succeed in scattering it or defeating it.
Meanwhile, ISIL's ideology continues to exert a very powerful
pull. The numbers are not precise, but all estimates of the
number of foreign fighters in Syria keep going up despite the
bombing campaign. There's also a difference here, I think we're
beginning to see between those foreign fighters particularly
from the West who are going to Syria and Iraq and the previous
cohorts of those who went abroad to join other jihadist fronts
in the past. This group is younger. It is attracted by ISIL's
well-advertised violence, certainly not put off by that fact.
It appears to be a more troubled population in Syria and Iraq.
Some of these people are going to be participating in
atrocities. That's going to change them. And while they are
there, they're going to be subject to a continuing bombing
campaign, which may strengthen their commitment and desire for
revenge. So this is certainly going to be a long-term problem.
Our ability to vet and screen entries into this country
depends a great deal on intelligence. And, indeed, it depends,
in part, on our partners' intelligence holdings. And the
problem here is that the European authorities are currently
being overwhelmed simply by the numbers of individuals that
they have to, they have to deal with. Therefore, I think it has
to be our operative presumption that terrorist operatives,
including returning foreign fighters, will continue to look for
ways to penetrate our security and get into the country to
carry out attacks, as well as recruit others already here to
carry out attacks on their behalf. I look forward to your
questions.
[Prepared statement of Mr. Jenkins follows:]
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Mr. DeSantis. Thank you.
Mr. Gude, for 5 minutes, you're recognized.
STATEMENT OF KEN GUDE
Mr. Gude. Thank you, Chairman DeSantis, Chairman Jordan,
Ranking Member Lynch, and Ranking Member Cartwright, and all
the members of the committee. I appreciate the opportunity to
testify before you today on this critical issue.
In the wake of the attacks in San Bernardino and also the
attacks in Paris, it is important that we understand what is
the best way forward to improve national security programs that
protect the American people. In my view, that is to manage and
minimize the risk rather than an attempt to completely
eliminate the risk simply because we cannot eliminate a risk in
the open society in which we live.
What we should be working on is working together to
reassure the American people that the steps that we are taking
to protect them are adequate to manage that risk. And in light
of that, I want to say about the Visa Waiver Program reforms
that were passed earlier this week that, while I don't agree
with every aspect of that bill, I do think it was in keeping
with the working-together aspect and identifying genuine
vulnerabilities and trying to improve those security programs
related to those vulnerabilities without shutting down access
to the United States.
What I think is unacceptable and dangerous in this time is
to try and exploit the understandable and reasonable fears of
the American people for political gain and push a jittery
public towards hatred and prejudice. And I think that not for
partisan reasons but because it is genuinely dangerous to the
American people because it plays right into the hands of ISIS.
Before I get to my specific points about the Visa Waiver
Program and other aspects of how we can protect the homeland, I
want to elaborate on why I think it does play into the hands of
ISIS to engage in rhetoric and actions directed at Muslim
Americans and Muslims in the United States. ISIS has an
explicit strategy--they talk about it in English all the time--
to polarize Western societies as part of their effort to create
a clash of civilizations. Now, their interpretation of a clash
of civilizations is the West versus Islam, with ISIS
representing Islam. Now, that is completely erroneous. ISIS
does not represent Islam. ISIS is not a civilization. We are
making a mistake to play into that framing of the issue and
that ideology.
There can be no justification for joining ISIS. I'm not
trying to rationalize any decision by anyone that they join
ISIS. But we have to understand what motivates people to do so.
And the alienation of Muslim communities in the West is one of
the aspects that increases the capability of ISIS to recruit
members into their ranks. Ignorance of that is not strength.
Ignorance of that is a weakness on the part of our strategy.
And we must do all that we can to eradicate that from our
policy and our rhetoric. Now, specifically on the Visa Waiver
Program, while I think it was important to address these
vulnerabilities, one aspect that I think is necessary should
these changes become law is that Congress now has the
responsibility to fund and resource the consulates in visa
waiver countries to ensure that they can adequately manage what
will likely be a much higher level of visa applications than
they're traditionally used to because if they are visa-waiver
countries, they probably don't have to deal with this very
much. And we would not want to create that as a barrier to
entry into the United States simply from a resource problem.
Getting to another aspect that was addressed or raised
briefly by Chairman DeSantis, which is the refugee question, I
join with Secretary Albright, Secretary Kissinger, many other
former national security leaders, and I urge the Congress to
reconsider the plan that would effectively shut down Syrian
refugees entering the United States. The program is very
rigorous. It is the most rigorous process to enter the United
States of any way that you can enter the United States legally.
I believe that the program adequately manages the risk. And
should that come up before this Chamber again, I urge you to
reconsider.
Lastly, I want to raise a point that Chairman DeSantis
identified in his testimony, which is that we have a challenge
for people who are in the United States and radicalized when
they are here, legally or whether they've always been here. One
of the things that I find hard to reconcile with the demand for
the virtual elimination of the risk from Syrian refugees is an
acceptance and tolerance of risk that individuals who have been
identified as suspected of being tied to terrorism can freely
purchase weapons in the United States. I find that--it's just
hard for me to understand how, on one side, we seek to
eliminate the risk from Syrian refugees; on the other side, we
seek to tolerate risk at a very high level of suspected
terrorists getting their hands on the most dangerous weapons.
With that, I will conclude. And I look forward to your
questions. Thank you.
[Prepared statement of Mr. Gude follows:]
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Mr. DeSantis. Thank you. Thank you.
The chair now recognizes himself for 5 minutes.
Ms. Kephart, given the recent events in Paris, what
improvements could be made to the vetting process for visa
applicants generally in order to protect the security of the
United States? And what lessons are there to be learned with
regard to our immigration system from past terrorist attacks?
Ms. Kephart. I think the visa system itself--do you want
the visa-free system or the visa system?
Mr. DeSantis. Both. Because I think that we have to look at
the visa system in order to evaluate the visa-free system. I
think there's problems with both.
Ms. Kephart. Right. So, on page 14 of my written testimony,
I have a chart there which pulls together the elements that
visa has today and the visa process has today that the ESTA
process for visa-free travel does not. There are a number of
elements there I think in the visa travel that can be brought
into the visa-free. The biggest one I think--without demeaning
the value of the ESTA process itself because it does have
value--is to add the biometric screening to it. I think it's
very difficult to do that necessarily with the individuals
within the Visa Waiver Program. You really have to do that in a
controlled environment, which is why I recommend preclearance
be a mandated requirement for VWP status.
So, for visa-free, I think adding the biometric and the
vetting before they travel to the United States and make that a
complete vetting process, what you're not going to get with
that, which visas do have today, is the interview necessarily,
although you could have secondary inspection available there.
And you're not going to have that time to do what they do at
consular offices now, which is, for those that have it, the
visa security units that do the extra immigration check through
ICE, HSI, or the National Counterterrorism Center intelligence
checks. You're not going to have that ability to do an in-
depth, in-your-own-time check.
The visa process I honestly think has done a really good
job, the State Department, of bettering itself over the course
of time. The one thing that has happened is they've peeled back
a little bit on the interviews. And they made some requirements
there.
Mr. DeSantis.They --missed Tashfeen Malik, who had been
going back and forth----
Ms. Kephart. Yeah. Yeah.
Mr. DeSantis. --from Saudi Arabia to Pakistan and had been
radicalized--now they say--before she came here.
Let me just ask you this. We passed a bill this week. That
does not--that bill may be a first step, but that does not
solve all the problems, correct?
Ms. Kephart. That's correct.
Mr. DeSantis. And we talk about some of these other
countries. But a country like Belgium does not really do a very
good job at providing the type of information that we would
expect in order to be sure that the people who are getting
visa-free travel. So somebody in a place like Molenbeek, they
can basically, even under this bill, they're still going to be
able, if they have a passport, to come to the United States. Is
that your understanding?
Ms. Kephart. Yes.
Mr. DeSantis. Ms. Burriesci, senior DHS officials told the
Government Accountability Office in April of 2013 that the
Department had not reported overstay rates because it did not
have sufficient confidence in the quality of the overstay data.
And so they said that they couldn't reliably report overstay
estimates in accordance with the statute. The GAO went on to
link the lack of confidence in overstay data to current
biographical data system and lack of a biometric system to
verify the identities of alien travelers. Why did DHS officials
tell the GAO that it did not have confidence in the biographic
system in 2013?
Ms. Burriesci. During that time, we were still working to
connect some systems, some biographic systems, to exchange data
between agencies within DHS. And one of the issues, once you
are enhancing your systems, you can't kind of go back and see
the data that, you can't unfix what you, what was in the past.
So we have worked the last several years to improve those data
exchanges and make sure that data is flowing in order to be
able to develop accurate numbers moving forward.
Mr. DeSantis. So you have confidence in it now, unlike
Secretary Napolitano did not have confidence, you think now,
standing here today, that the system is good and trustworthy?
Ms. Burriesci. We have certainly increased confidence since
that time, absolutely.
Mr. DeSantis. But that may not be sufficient.
Let me ask you, Ms. Kephart, to comment on specifically, if
a terrorist it able to come through the Visa Waiver Program,
supposed to be here 90 days, but in point of fact if they come
here and they need a 6-month time period in order to
orchestrate and conduct an attack, is there really a
significant risk to them that they are going to be removed from
this country on the 91st day?
Ms. Kephart. Not unless they come across criminal law
enforcement and there's some connection to a terrorist watch
list, no.
Mr. DeSantis. Exactly.
Let me ask Mr. Jenkins and Ms. Burriesci. Is DHS
currently--well, let me ask Ms. Burriesci this first one--is
DHS currently monitoring individuals who have recently traveled
to countries, such as Syria and Iraq, where radicalization or
training efforts are obviously readily apparent?
Ms. Burriesci. So if there was continuous travel that had a
nexus to the United States, we would certainly have that
information. If there's not a nexus to the United States and,
say, one of our VWP countries are aware of that travel, they
are absolutely reporting foreign fighter information to us.
That's one of the benefits of the VWP program.
In cases if it's unknown to the VWP country, unknown to the
United States, there's no nexus; that is a potential that we
would be unaware of that travel. That's why when individuals
travel to the United States, we also do have algorithms running
in the background for the checks that we do conduct to do our
best to match up what we might term as, like, broken travel
because it doesn't have that nexus.
Mr. DeSantis. Let me ask Mr. Gude, one of the statements in
your report was from a woman who said ISIS wouldn't be here if
there wasn't Islamophobia. Do you believe that that statement
is true? In other words, would you subscribe the motivation for
the World Trade Center bombing in 1993 to a reaction against
Islamophobia?
Mr. Gude. No.
Mr. DeSantis. What about the Khobar Towers in 1996? No,
correct?
Mr. Gude. No. But what I would say----
Mr. DeSantis. The 9/11 attack?
Mr. Gude. I'm sorry?
Mr. DeSantis. The 9/11 attack?
Mr. Gude. No.
Mr. DeSantis. Right. So these people have an ideology
independent of anything, our policies or what we do. I mean, do
you agree with that?
Mr. Gude. I certainly do. But I would say that simply
because they have their own motivations, they certainly don't
need an excuse to attack us. And, again, I'm not trying to
rationalize any decision to do so. But I think our own
ignorance about what does motivate them in some way and what
does alienate populations, particularly in Europe, they have a
much more serious problems with this in Europe than we do here
in the United States, but this, if we create a system or we
create a situation in which Muslims feel like they need to be
separated from society, that makes it much more easy and makes
them--some of them--much more susceptible to the kinds of
sophisticated recruiting techniques that ISIS employs and not--
and we should be making it harder for them, not easier.
Mr. DeSantis. What strikes me is that some of the people
who have been very successful terrorists have been educated,
you know, middle, higher income people that actually had a lot
of opportunities. And so I'm not saying that we don't need to
be sensitive to the broader populace. But I think that it's not
something that is being done necessarily in reaction to our
policies.
And you talked about managing the risk of terrorism rather
than eliminating the risk of terrorism. And you cited the
refugee--you acknowledge that there is risk with the refugee
program, given the FBI Director's statements that they cannot
vet all the people that are coming.
Mr. Gude. Of course, there's risk. And that's why they
established the most rigorous screening system.
Mr. DeSantis. But it's a screening system, as Mr. Jenkins
points out. Some of the people who have come and have committed
terrorist acts have come through the refugee program. I think
the question is, what is your tolerance for risk? I think most
Americans, if they think that there's a chance, even if you're
99 percent accurate out of 10,000 people that you're bringing
over here, and you're talking about 100 people that you'd be
bringing into the country that would potentially do harm. So I
think how you deal with the risk, I think that your testimony
suggests you would have more tolerance than I think most
Americans would be.
I'm out of time. Let me recognize Mr. Lynch for 5 minutes.
Mr. Lynch. Thank you, Mr. Chairman.
I want to thank all the witnesses. You've already been
helpful in some respects. I do want to go over our vetting
process and screening process because there's some statements
out there that are really in conflict. Some of the witnesses
have pointed to the weaknesses. Others have pointed to the
strengths.
In one of our previous hearings, we had the Department of
Homeland Security Inspector General John Roth testify both
before our committee and before Homeland Security. Before the
Homeland Security Committee in June, he pointed out that,
despite rigorous processes, that TSA did not identify 73
individuals with links to terrorism because TSA was not cleared
to receive all the terrorism databases that other agencies had
and did not have access to current interagency watch list
guidance. So the Office of Inspector General did something very
simple, he asked for the TIDE list, the terrorist, you know,
terrorist--T-I-D-E.
Ms. Burriesci. Identities Datamart Environment.
Mr. Lynch. There you go, Terrorist Identities Datamart
Environment. It's basically the terrorist watch list. He took
that list, and then they did a merge with people who were
working in secure locations at our Nation's airports. So they
merged the two lists. And there were 73 individuals who were on
both lists, the TIDE list, and they were working in secure
locations with credentials, you know, they had those
credentials around their necks working at secure locations. So
that makes me worry. That makes me worry that--now, I
originally thought they were DHS employees--and I was wrong--
because DHS was screening them. But they were actually working
for contractors within the airport, airlines, or maintenance
people. But the problem is, you got these people who are on the
terrorist watch list and they're working in secure areas at the
airports; scares the hell out of me.
So now we have this situation going on with the Visa Waiver
Program. And we're screening them. Now, in fairness, OIG, the
Office of Inspector General, Mr. Roth said he did not fault TSA
because they didn't have access to that intel; they weren't
given those lists. So I'm not going to hold their feet to the
fire here, because they didn't have the information. But I damn
well am sure they're going to get it because we can't have that
happening.
So, Secretary Burriesci, have we, because of that
situation, and also DHS said at the time: Okay, we got to
straighten this out. We're going to take steps. We'll do a deep
dive on these 73 people, figure out what the indicia of
terrorist connection is, and take appropriate action.
And I am assuming that that has happened. I hope that's not
a leap of faith. Nevertheless, the vetting process, the
screening, have we got that straightened out so that all the
bad guys are on the lists that all our people see who are
screening?
Ms. Burriesci. I'll start by saying the interagency does
the very best it can to make sure we have the most solid,
consolidated terrorist watch list. And I believe the United
States has the best terrorist watch list. The Terrorist
Screening Database is the United States Government's
consolidated terrorist watch list. That is a different database
than TIDE, the one you mentioned. TSA does screen all airport
workers, as well as all of its other credentialed populations,
against the terrorist watch list.
Mr. Lynch. Okay. Now, just for my own education, was the
National Counterterrorism Center that did this merge that
allowed 73 people with secure, you know, credentials in the
airports that are on the TIDE list, is that list better? Is it
the serious characters? Is it a--I know one of these lists is
900,000 people. I think that's the TIDE list, right? So is the
broader list better? Or is the narrowest list better? What is
the distinction here?
Ms. Burriesci. So the terrorist watch list, the Terrorist
Screening Database, owned and operated by the Terrorist
Screening Center, holds all of the known and suspected
terrorists. That's our bad guy list. That's what we're going to
screen all of our credentialed population----
Mr. Lynch. So the people at the National Counterterrorism
Center, they don't have bad guys?
Ms. Burriesci. The TIDE database, yes, has all the people
in the Terrorist Screening Database in it, as well as other
individuals. And I highly recommend you have a closed session
with NCTC to discuss that because they can go into significant
detail with you.
Mr. Lynch. We've had them in. Just so you know, we had them
in. Just so you know, there are no good guys on that list that
was given to me. Are you saying that there's good guys on that
list?
Ms. Burriesci. On which list? I'm sorry.
Mr. Lynch. The National Counterterrorism Center's TIDE
list.
Ms. Burriesci. I'm saying that there are individuals who
have been cleared and have no nexus to terrorism. And we make
sure that we do not----
Mr. Lynch. While they're on the list or after they've been
cleared from the list?
Ms. Burriesci. I highly recommend that you have a in
detailed session with them because----
Mr. Lynch. As long as you're not putting a fiction out
there that we've got good guys on one list that we're using, as
long as you're not saying that.
Ms. Burriesci. Sir, we recurrently vet all individuals
against the Terrorist Screening Database that have access to
our secure areas of our airports. It's recurrently vetted. TSA
will know in real time----
Mr. Lynch. Just to be clear because if the National
Counterterrorism Center has a list of good guys, then we're in
serious trouble. I need to drag them in here and say: What are
you doing? I wish I had them here now because we have----
Ms. Burriesci. They could go into detail in a closed
session on anything. I'm sure they would be happy to do that.
The OIG report wasn't about individuals though. And I did
want to correct that. It was records. So when TSA did an
additional scrub, it was less than that.
Mr. Lynch. It was 69 instead of 73. Are you going to hang
your reasoning on that argument?
Ms. Burriesci. Absolutely not.
Mr. Lynch. Okay. So it's 69 and not 73. I'll give you that.
Ms. Burriesci. And TSA has access to the TIDE database as
well. What they're seeking, what the OIG's report was alluding
to is giving them automated access. So just to clarify, there
are some nuances.
Mr. Lynch. Yeah. Well, I bristle at the fact that I got
pushback that I was wrong because these were contractors that
were in secured areas with security credentials and they
weren't DHS employees, like that's somehow vitiates the blame
here. The idea is that you have people on the terrorist watch
list working in secure areas at the airports. That's the point
I'm trying to get at. It's the vetting process, the screening
process that we are being told over and over again that is so
robust and impervious. So let's work together here. And let's
not be in denial. Let's just say: Okay, we got some stuff we
need to fix. And let's fix it. I'm with you.
Ms. Burriesci. Sir, I'm always willing to fix anything in
terms of security.
Mr. Lynch. All right.
Ms. Burriesci. DHS' mission is to prevent terrorism. I just
wanted to clarify----
Mr. Lynch. All right.
Ms. Burriesci. --that those individuals were not on the
terrorist watch list.
Mr. Lynch. Wait a minute. Well, I need to go back here
again. They are on the National Counterterrorism Center's list
of people with connections--let me read what the inspector
general said again.
And you missed them. You missed them. You didn't have the
chance to even review what they were guilty of because you
completely missed them. So you didn't vet them. That's why
they're working at the airports.
Let me just go back to what the inspector general did. He
pointed out that, despite rigorous processes, TSA did not
identify 73 individuals with links to terrorism because TSA is
not cleared to receive all terrorism categories.
Hello. So you didn't vet them. How do you know they were
good guys?
Ms. Burriesci. And all I'm clarifying, sir--I'm not
disputing what you read in the OIG report. I'm just saying that
that----
Mr. Lynch. You are. You are. He just said ``links to
terrorism,'' and you're saying no.
Ms. Burriesci. Because NCTC's database is not the terrorist
watch list. The terrorist watch list----
Mr. Lynch. I understand the distinction between the two
lists.
Ms. Burriesci. So TSA----
Mr. Lynch. But you didn't have the other list. TSA did not
have the other list.
Ms. Burriesci. TSA has access to the list but not in an
automated fashion----
Mr. Lynch. This is the problem. Right here, this
discussion, you and I, this is the problem. This is the
problem.
You're saying that because these people have links to
terrorism but they weren't on that list--they were on another
list. So, even though they have links to terrorism, you're
going to let them work in secure areas of the airport, no
problem. Nothing to see here, let's move along.
Are you kidding me? That's why we have--look, there is,
like, 75 percent of the American people who don't believe we
have a plan, that the administration has a plan to deal with
this. This is why. This is why. I'm on your side. I'm trying to
make this safer, and all I'm getting is resistance that they
weren't on that particular list. Give me a break. Come on.
Let's work together here just to make the airports safer.
And if we have a problem, if we have a gap, say, ``We had a
gap, we are going to fix it,'' rather than doing this silly
dance that they are not on the list that you go by.
Ms. Burriesci. Absolutely, sir, I want to work with you.
And I'm happy to go into detail and----
Mr. Lynch. All right. I'll yield back.
Ms. Burriesci. --on all the classified pieces----
Mr. DeSantis. The gentleman's time has expired.
The chair now recognizes Mr. Russell for 5 minutes.
Mr. Russell. Thank you, Mr. Chairman.
We've been struggling with the number of folks that are on
the terror watch list. As Members of Congress, we're trying to
determine what that number is and are having to rely on open
source information.
So, Secretary Burriesci, could you, even in ballpark terms,
tell us what is the size of that list?
Ms. Burriesci. I don't actually have that off the top of my
head, but I can get back to you.
Mr. Russell. Can you give us an estimate where we didn't
have to rely on open press reports? Is it between one and a
million? I mean, what would be your number?
Ms. Burriesci. I really just don't even want to speculate
on a wrong number, but I'm happy to call my----
Mr. Russell. You can't even speculate on the size of the
list.
Ms. Burriesci. --interagency partners and get back to you
on that.
Mr. Russell. Ms. Kephart, would you enlighten us, please?
Ms. Kephart. My information is a few years old. I was about
to meet----
Mr. Russell. A few years old. Yeah.
Ms. Kephart. --with Mr. Healy of the Terrorism Screening
Center a few years ago where he was able to give me information
he said I could make public. At that time, I did so, and, at
that time, there were 10,000 to 20,000 terrorists in the U.S.,
on U.S. soil, that the FBI knew about. That's what I know.
Mr. Russell. People suspected, that were under suspicion.
Ms. Kephart. The folks that were on the terrorist screening
watch list, to have reasonable suspicion that they were indeed
involved with terrorism, that legal level that is a little bit
above, in terms of evidence, of the TIDE list, which is just a
conglomeration of people we think could be involved.
Mr. Russell. Can this committee get a number? I mean, we
have people of all----
Ms. Kephart. That's up to the administration, sir. I'm
private.
Mr. Russell. We have the Nation, you know, on every side of
this issue--407 people on the House floor, I mean, if that's
not darn near unanimity, I don't know what is in this building,
that voted for this visa waiver protection because we feel that
that is where the greater threat lies. We can discuss the other
aspects. But we can't even get good figures in an open hearing
that would be, oh, rounded to the nearest 100,000, say.
Can you give us a number?
Ms. Burriesci. Sir, I just want to make sure that the
number is accurate. And I will----
Mr. Russell. Oh, sure, but we----
Ms. Burriesci. --make sure the Terrorist Screening Center
is responsive to that request.
Mr. Russell. Okay. Thank you. And I guess we'll have to
rely on our First Amendment and reporters that would dig,
because, you know, we're just the Oversight and Government
Reform Committee. What business is it of ours,
constitutionally, to get these numbers?
Could you speak to the passports for sale on Malta,
Secretary Burriesci?
Ms. Burriesci. I don't have information on that.
Mr. Russell. Well, you just gave us some of these concerns
in your testimony today, such as passports that would be for
sale in Malta and not going through a vetting process, and that
caught my attention. So I would like you to comment.
Ms. Burriesci. That was in Ms. Kephart's testimony.
Mr. Russell. Oh, I'm sorry, Ms. Kephart.
My apologies, Madam Secretary.
Ms. Burriesci. That's okay.
Ms. Kephart. So Malta and Cyprus are the two visa waiver
countries right now that sell citizenship for a price, with no
residency requirements and very little vetting. Other
countries, including ourselves, also make long-term residency
and passports available based on investment.
But the countries that absolutely sell it outright with no
vetting procedures in place, I think, are a little bit
dangerous. And, of course, Malta and Cyprus have had serious
financial issues----
Mr. Russell. But these are among the 38, Cyprus and Malta--
--
Ms. Kephart. Yes, they are. They're visa waiver countries
right now.
Mr. Russell. Okay. Thank you so much.
And, Mr. Chairman, I just want to address one thing that
was made in some opening testimonies--or, not testimonies, but
comments of our committee. As probably the only firearms
manufacturer in Congress, there's a lot of very inaccurate
information that's being thrown out there.
One, if you are a nonresident immigrant alien, you cannot
purchase a firearm. If you're on any visa waiver, it is
unlawful, it is against the law to purchase a firearm. And you
certainly can't walk into any facility and purchase explosives.
And I would be happy to educate any member on this committee on
what 18 U.S. Code is on the sale of firearms. We are wasting a
lot of time and effort on that.
Mr. Gude, you said that you didn't totally agree with every
aspect of what 407 Members of Congress voted for this last
week. I would be curious what you didn't agree with.
And then you said that we should not be on the hook to fund
higher standards. Pray tell why other nations should have our
money when we're trying to protect our shores. If they want a
visa waiver, why should we pay for that? Don't you think they
should? I am curious to your logic here, sir. Could you please
enlighten me?
Mr. Gude. On the last part, I'm not sure I follow that
question.
Mr. Russell. Well, let me reiterate it, with the chairman's
indulgence. You said that we would have to--these, you know,
changes in the Visa Waiver Program, that we would have to
allow, you know, funding for these other countries to handle
that.
Mr. Gude. Yeah, our own consulates in those countries. If
you're in a visa waiver--if you're a consulate in a visa waiver
country, you probably do not have a large number of staff there
to process visa applications. So U.S. Government employees in
U.S. embassies and consulates in visa waiver countries. That
was the point that I was making.
Mr. Russell. Well, I think those countries, if they want
this, that they certainly could assist in the expense of that.
And----
Mr. Gude. But excuse me, if I could just--that situation is
analogous, sir, it's exactly the same to what every U.S.
embassy and consulate has in a non-visa-waiver country. It
shouldn't be an additional burden; that we would think that if
we were going to change the rules about how people in visa
waiver countries get into the United States, I think it's
completely reasonable, then, to say that we have to ensure that
our U.S. Government offices are fully resourced in order to
handle that change.
Mr. Russell. Well, sure. And when you look at China, who is
not one of the 38 countries, they send a lot of people here.
They have more people in this country on permanent residencies
of some nature than I have in my whole State, as a population.
And they don't have the visa waiver. And I think that we can
make these accommodations and still protect the United States
of America.
And, with that, Mr. Chairman, thank you for your
indulgence, and my time has expired.
Mr. DeSantis. Thanks. The gentleman's time has expired.
The chair now recognizes Mr. Cartwright for 5 minutes.
Mr. Cartwright. Thank you, Mr. Chairman.
And, again, I thank the witnesses to this joint
subcommittee hearing of the Oversight and Government Reform
committee.
You know, my friend Mr. Russell of Oklahoma just intoned
the phrase, ``We are only the Oversight and Government Reform
Committee,'' and he was saying so quite tongue-in-cheek, and I
want to amplify on that a little bit.
You know, all of us, every single Member of Congress,
regards as our most solemn duty the protection of the American
public. And we all feel that way on this committee. And I must
say that I have some very close and dear friends on the other
side of this dais; we all feel the same way. And we're all
looking for strength and unity. And our common purpose is
protecting the American people. And we're having this hearing
to that end.
Now, you know, we've been talking about vetting processes
and screening processes. And, you know, here on Oversight and
Government Reform, when we take testimony, we have our own
vetting and screening processes. In fact, one of them is a form
that we call the Truth in Testimony form, and all witnesses are
required to fill it out.
Ms. Burriesci, you're with DHS--Secretary Burriesci. Is it
a correct fact that a company called MorphoTrak has a contract
with DHS right now?
Ms. Burriesci. I actually don't know the answer to that,
but I can check. I don't have any contracts in my area.
Mr. Cartwright. Well, as a matter of fact, it does. In
fact, I have a news article here that indicates U.S.
Citizenship and Immigration Services, which is a part of DHS,
recently entered into a $13.6 million contract with MorphoTrak
for a fingerprint scanning system.
And I'd like to enter this into the record, Mr. Chairman.
Mr. Russell. [Presiding.] Without objection.
Mr. Cartwright. And this is about you, Ms. Kephart. I'm
looking at your financial disclosure on the Truth in Testimony
form, and I'm going to read it. There are only three questions
on the form.
``Please list any Federal grants or contracts you have
received since October 1, 2012. Include the source and amount
of any contract.'' You wrote, ``None.'' This is your
handwriting; am I correct in that?
Ms. Kephart. Yes, it is, sir.
Mr. Cartwright. Number two, ``Please list any entity you
are testifying on behalf of and briefly describe your
relationship with those entities.'' You wrote, ``No. However,
to be clear, I'm testifying in personal capacity, although I am
with a leading biometric company, MorphoTrak, as of September
2015.''
And then question number three says, ``Please list any
Federal grants or contracts, including subgrants or
subcontracts, received since October 1, 2012, by the entities
you listed above. Include the source and amount of each grant
or contract.'' And you wrote, ``None,'' although you had listed
MorphoTrak in the immediately proceeding answer.
Ms. Kephart. Correct.
Mr. Cartwright. And I guess the question is, Ms. Kephart,
you knew we would be counting on you to be completly honest in
filling out our Truth in Testimony form, didn't you?
Ms. Kephart. And I was, sir.
Mr. Cartwright. Okay.
Ms. Kephart. This is my 19th time before Congress
testifying on issues of border security, national security,
and----
Mr. Cartwright. Right. So you're not a rookie here. In
fact, you're a lawyer, aren't you, Ms. Kephart?
Ms. Kephart. Yes, I am. And----
Mr. Cartwright. So when you see----
Ms. Kephart. --I was not with MorphoTrak in 2012, sir.
Mr. Cartwright. --a Truth in Testimony form that says list
the entities above that you have contracts with the Federal
Government and you wrote, ``None,'' are you saying that's
correct, even though there's a $13.6 million contract with DHS?
Ms. Kephart. Sir, I am testifying in my personal capacity,
not on behalf of MorphoTrak. So, yes, I filled out the form in
terms of my personal capacity. However, if you would like me to
go back and change the form and list those contracts, I'm happy
to do so. USCIS has nothing to----do with this testimony
Mr. Cartwright. Well, what we're interested in here is that
our forms get filled out correctly and that we have the
complete context. So when we hear from a witness like you--I
mean, part of your testimony is recommending that we
implement----
Ms. Kephart. And my written testimony, sir, includes that
discussion on MorphoTrak. I was completely honest.
Mr. Cartwright. Part of your testimony is that we implement
recommendations; three of them are to implement biometrics.
Ms. Kephart. Which I have testified about many times.
Mr. Cartwright. The company you work for makes and sells
biometrics. Are you saying it's a matter of complete
indifference to you whether your employer----
Ms. Kephart. Yes.
Mr. Cartwright. --gets this business?
Ms. Kephart. Yes, sir, I am.
Mr. Cartwright. You're saying it is. Okay.
Well, here's the point. House Rule 10 requires this form to
give committee members, the public, and the press a more
detailed context within which to view the testimony. And we
expect, Ms. Kephart--listen, you're not a rookie at this.
Ms. Kephart. I am happy to go back and redo it, sir.
Mr. Cartwright. We expect you to fill out the form
correctly so that we on the Oversight and Government Reform
Committee and the American public listening to this testimony
can view your testimony and your recommendations in the
complete context, not a partial context, not a half-truth, the
whole truth.
Will you do that in the future, Ms. Kephart?
Ms. Kephart. I will absolutely--if you would like, sir----
Mr. Cartwright. Thank you.
Ms. Kephart. --I will redo it today.
Mr. Cartwright. I yield back.
Mr. Russell. The gentleman yields back.
The chair now recognizes the gentleman from Ohio, Mr.
Jordan, for 5 minutes.
Mr. Jordan. Thank you, Mr. Chairman.
Ms. Burriesci, earlier this week, the chairman of the
Homeland Security Committee gave an important speech where he
talked about extremist groups, terrorist groups that are trying
to exploit the refugee program. So, like Mr. Russell just a few
minutes ago, I would like to see if you can give us some
numbers just so the committee and the American people have this
information.
How many Syrian refugees have entered the United States in
the last year?
Ms. Burriesci. Sir, I didn't bring any of the refugee
numbers with me because I was prepared to talk about visa
waiver. But I can certainly have us send that to you.
Mr. Jordan. Do you know how many Americans have traveled to
Syria in the last year?
Ms. Burriesci. I don't have that number on me either.
Mr. Jordan. So you wouldn't know how many Americans have
traveled and then returned?
Ms. Burriesci. I don't have that number on me.
Mr. Jordan. How many Visa Waiver Program overstays are
there currently in the United States?
Ms. Burriesci. Sir, I didn't bring that number with me.
Mr. Jordan. Ms. Burriesci, when I look at the witness list,
you've got the longest title, ``Deputy Assistant Secretary,
Screening Coordination, Office of Policy, Department of
Homeland Security.'' You've got the longest title.
And it says ``Screening Coordination.'' Now, what screening
are you coordinating? Is that just intra-agency, or is that
interagency?
Ms. Burriesci. It's both.
Mr. Jordan. It's both. So it's all of that.
Ms. Burriesci. I coordinate across DHS components as well
as----
Mr. Jordan. And the two biggest issues right now that we're
dealing with relatively, we had these terrible tragedies,
terrible terrorist attacks, and we're talking about the refugee
issue and the Visa Waiver Program issue, and you can't give us
any numbers on either program?
Ms. Burriesci. Sir, I came prepared to talk about the Visa
Waiver Program.
Mr. Jordan. And I just asked you how many Visa Waiver
Program overstays are there, and you said you don't know.
Ms. Burriesci. Sir, I don't have a number. The Visa Waiver
Program----
Mr. Jordan. So when I ask how many overstays of the Visa
Waiver Program may have traveled to Syria before they got here,
do you know that number?
Ms. Burriesci. Sir, if a Visa Waiver Program national has--
a citizen of a Visa Waiver Program country, rather, has
traveled to Syria, Iraq, or a conflict zone and they are
considered a foreign fighter, that VWP country----
Mr. Jordan. I'm not asking that. I'm saying someone from
Great Britain comes to the United States on a Visa Waiver
Program and they are now an overstay, do we know if that
person, who is here today--maybe they're not even an overstay--
do we know if that person has been to Syria before they came to
the United States? Do we know that?
I mean, I know this is what our bill that we just passed
earlier this week is trying to get to. I'm asking, do we know
that information now?
Ms. Burriesci. So that's why we have the IC involved and
there's an intelligence assessment, and we use----
Mr. Jordan. I wasn't asking that. Do we know that? Do you
know the number?
Ms. Burriesci. I don't know the number, but that's why I'm
trying to explain that the----
Mr. Jordan. But do we have people who are in that category
I just described, come from a Visa Waiver Program country, they
are here today and may have been in Syria or Iraq or somewhere
there before they came here? Do we know that?
Ms. Burriesci. If a citizen of a VWP country has traveled
to one of those areas, there's a nexus to United States, or the
VWP partners shared that information with us, yes, we know that
information, and we will vet against it. We will also use our
algorithms----
Mr. Jordan. But could they be here right now is my
question.
Ms. Burriesci. I don't have that answer, sir.
Mr. Jordan. All right.
Well, how about, can you tell me anything about the no-fly
list then? You can't tell me anything about those--how does a
person get put on--the criteria for that? Can you tell me
anything about that?
Ms. Burriesci. Sure. The no-fly list is a subset of the
overall screening database. The interagency works together. The
Terrorist Screening Database is owned and operated by the
Terrorist Screening Center, as I said earlier. There are
criteria to get on that that are agreed to----
Mr. Jordan. How many American citizens are on that list
right now? Can you give me that number?
Ms. Burriesci. I'm sorry, sir?
Mr. Jordan. How many American citizens are on the no-fly
list right now?
Ms. Burriesci. I know there are American citizens on the
list. It is an extremely small number, but I don't have my
numbers with me. But, again, that is something I can easily get
back to you afterwards.
Mr. Jordan. Ms. Burriesci, I've asked you the number of
Americans who've traveled to Syria, you don't know; the number
of Americans who may have traveled and returned, you don't
know; the number of Syrian refugees who have entered the
country in the last year, you don't know; the number of Visa
Waiver Program overstays, you don't know; the number of visa
waiver overstays who may have been to Syria before they came
here, you don't know; and the number of American citizens on
the no-fly list, and you don't know.
And yet you are the Deputy Assistant Secretary for
Screening Coordination, Office of Policy, Department of
Homeland Security, in front of the Oversight Committee, and you
can't give us one single number to some, I think, pretty basic
questions?
Ms. Burriesci. Some of those statistics aren't held by DHS,
and so that's why I would like to work with my interagency
partners to get you----
Mr. Jordan. That's why I referenced your title. You're the
one who's the screening coordinator for all this, and you said
you were interagency. That's why I referenced your title. It
seems to me, when you come in front of this committee, you
should have that information.
Ms. Burriesci. I'm a DHS employee. I am a DHS career civil
servant employee. And I will work with my interagency partners,
but they're the authoritative source for a lot of those numbers
that you mentioned.
Mr. Jordan. If you could get us those numbers and the ones
Mr. Russell asked for, that would be very helpful.
I thank you, Mr. Chairman.
Mr. Russell. And if I may answer one of your questions,
according to the Department of State, for fiscal year 2015, up
to the 18th of November, there were 1,810 Syrians that had come
into the country on the refugee program.
The chair now recognizes the gentlelady from New Jersey,
Mrs. Watson Coleman.
Mrs. Watson Coleman. Thank you, Mr. Chairman.
And thank you to the witnesses for being here.
On Sunday, President Obama took the rare step of addressing
the Nation from the Oval Office to discuss the recent terrorist
attacks in San Bernardino and Paris and the rising level of
unprecedented violence that the world is facing.
In Sunday's address, only his third from the Oval Office,
the President called on Congress to take specific and immediate
steps to protect the American public from further acts of
terrorism. The President, however, was clear that those steps
should not be driven by fear.
Here is what he said, and I quote: ``Our success won't
depend on tough talk or abandoning our values or giving in to
fear. That's what groups like ISIL are hoping for. Instead, we
will prevail by being strong, smart, resilient, and relentless
and by drawing upon every aspect of American power.''
The threat of ISIS is real. It is ultimately the goal of
ISIS to instill fear, causing us to make decisions we would not
otherwise make. And we must resist that urge to live in fear.
Mr. Gude, you have written about the exploitation of fear
to influence public policy, and you said something in your
testimony today that I want to highlight. You said, and I
quote, ``What is unacceptable and dangerous to American
security are the kind of rhetoric and policy proposals that
attempt to exploit Americans' reasonable fears for political
gain and try to push a jittery population,'' which is an
understatement, ``toward increased hatred and prejudice.''
What are the dangers of fear-based policy?
Mr. Gude. Well, I think there's two things.
One, it is often the case that when we make policy
decisions in the immediate aftermath, with incomplete
information and motivated out of a sense of fear, those
policies over the medium and long term don't particularly turn
out as we intended.
Secondly, I think that when we create a climate of fear and
suspicion within the United States we risk alienating Muslim
Americans and our Muslim populations, making it a situation in
which they are more susceptible to the kind of sophisticated
recruiting techniques that ISIS employs.
Now, again, I want to reiterate that I am not rationalizing
any decision to join ISIS. Everyone has the agency, they make
their own decisions, and there is no justification for joining
a group like ISIS, whether or not you intend to commit
violence.
But it is incumbent, I think, on policymakers to understand
the motivations for why people do join ISIS and make it much
more difficult for ISIS to get people into their ranks.
Mrs. Watson Coleman. The President also called for the
rejection of discrimination and proposals to treat Muslim
Americans differently. Do you agree?
Mr. Gude. Yes. Absolutely.
Mrs. Watson Coleman. Discriminatory policies are
inconsistent with the Constitution but also seem
counterproductive from a security standpoint. What effect do
these policy ideas have on ISIS and similar terrorist
organizations?
Mr. Gude. Well, the narrative that ISIS is using, both
talking to people who are already in its ranks and trying to
recruit them, is that we are in a clash of civilizations, where
the crusaders, or the West, versus ISIS, representing Islam.
And when we in the West buy into that rhetoric, describe it as
a clash of civilization, it makes it easier for ISIS to sell
that narrative.
What they are trying to do, they divide the world into
three groups--the West, ISIS, and in the middle they call
something called the gray zone. Now, their description of the
gray zone is targeted at Muslims who live in the West and have
not yet joined ISIS, not yet come to the caliphate, as they
describe where they are in Iraq and Syria. And their effort is
to literally destroy that gray zone by pushing Muslims toward
ISIS.
Now, when we in the West engage in an anti-Muslim backlash,
we make that job easier. Now, again, I want to reiterate that
there is no justification for making that decision. But, in our
own actions and in our own policies, we should understand what
ISIS is trying to do and not play right into their hands.
Mrs. Watson Coleman. Much of this anti-Muslim rhetoric has
surrounded this Syrian refugee population, who a recent Cato
Institute report found to pose no significant threat to the
United States. Specifically, Cato found in a November 18, 2015,
report titled, quote, ``Syrian Refugees Don't Pose a Serious
Security Threat,'' that, I quote, ``Of the 859,629 refugees who
have entered the United States since 2001, 3 have been
convicted for planning a terrorist attack abroad and exactly
zero have perpetrated domestic attacks.''
With the rise of ISIS and the growing number of threats
against the United States, we are seeing more and more
suggestions for policies that lead to unintended consequences
of trampling on the civil rights and liberties of American
Muslims, and these ideals are inconsistent with ours.
Thank you.
Thank you, Mr. Chairman.
Mr. Russell. The gentlelady yields back.
And the chair now recognizes the gentleman from South
Carolina, Mr. Mulvaney.
Mr. Mulvaney. Thank you, Mr. Chairman.
I'm going to try and get to something that might be a
little bit more simple, a little bit more straightforward,
which is going back to something I heard during the opening
testimony of Ms. Kephart and Ms. Burriesci.
And I apologize. When you have a last name like
``Mulvaney,'' it gets mispronounced a lot. So I apologize if
I'm butchering yours--about the Visa Waiver Program, the basics
of it.
Here's my question to both of you. I am a French national.
I'm born there, I'm living in one of the suburbs, I have become
a radicalized Islamist. Can I get on an airplane tonight to
come to the United States of America?
Ms. Burriesci?
Ms. Burriesci. You're doing great with the name.
Mr. Mulvaney. Thank you.
Ms. Burriesci. A French national who wants to come to the
United States for business or tourism reasons would require an
ESTA. For any other reason, they would require a visa. The
checks would be the same----
Mr. Mulvaney. I want to get in as quickly as I possibly
can. I want to say I'm a tourist. Because I want to come here
and blow something up. Could I get on the plane tonight and do
that?
Ms. Burriesci. If we have that derogatory information,
absolutely not, regardless of----
Mr. Mulvaney. But tell me the process I have to go through
before I can get on the airplane.
Ms. Burriesci. You have to have--so you have to fill out an
online application or a visa application, again, depending on
your purpose for coming to the United States, and those are
vetted.
Regardless of either, the same biographic checks are
occurring. You're hitting the Terrorist Screening Database, the
terrorist watch list, you're hitting State Department's
holdings, you're hitting DHS holdings, you're hitting the
National Counterterrorism's holdings. And you're going to be
recurrently vetted.
If we have derogatory information that you have ill intent,
you're a terrorist, you're a known or suspected terrorist,
absolutely not. Either one, you're going to get denied.
Mr. Mulvaney. So, regardless of whether or not I'm a
terrorist, I'm a French national with a French passport, and I
just decide tonight that I want to get on an airplane and come
to New York, I have to go through the process that you just
mentioned.
Ms. Burriesci. Absolutely. Nobody can just walk on a plane
and come to the United States.
Mr. Mulvaney. Ms. Kephart, is that right?
Ms. Kephart. Yes, it's right, as long as the terrorist has
decided to use his real identity.
So, yes, Kelli Ann's process is, indeed, correct. You have
to fill out an online ESTA process. You can even do that
process at the airport. But it's only biographic, and that's
the difference.
Mr. Mulvaney. Okay. And let's build on that a little bit.
How long does it take to do that? You say I can do it at the
airport.
Ms. Burriesci, how long does it take me to actually go
through that vetting process? Again, I'm assuming that I'm not
lying yet. I haven't stolen passports; that's a different
issue. I'm not trying to hack a computer. I'm just an ordinary
French citizen with a passport. How long does it take to do
that?
Ms. Burriesci. It's a short period of time to clear,
assuming everything is coming back green. Certainly, if there's
a flag of any kind, you're referred to the nearest consulate.
Mr. Mulvaney. Okay. So if there's no flag--because what
we're hearing now is that, while some of the terrorists in
France, in the Paris bombings, were on some lists in France,
others were not. So those folks, apparently, would not have
come up on your background check, your vetting process.
Am I saying anything that's inaccurate so far? If we didn't
know about them and the French didn't know about them, they
would have cleared those background checks, right?
Ms. Kephart is saying yes.
Ms. Burriesci. Yes. The response would have been the same,
whether it was an ESTA or a visa.
Mr. Mulvaney. Okay. So how long would it have taken to go
through that process?
Ms. Burriesci. The ESTA application vetting is not a long
period of time. You can do it that day.
Mr. Mulvaney. Okay.
Ms. Burriesci. Yes, sir.
Mr. Mulvaney. Okay. So I guess what I'm hearing then--and
what I'm always concerned about is if I'm getting good
information and the folks I represent are getting good
information. And what I am hearing is that if I read something
on the Internet, saw it on the news, heard it on talk radio,
that said that at least some of the Paris bombers could have
come into this country and we would never have known about it
because of the Visa Waiver Program, that is a true statement.
Ms. Burriesci. I would really have to refer you to the
FBI's Terrorist Screening Center for additional information
other than what I've already said.
Mr. Mulvaney. That's fine. Let's assume, then, for my
question that the French didn't know they were potential
terrorists and we didn't know they were potential terrorists.
They would be able to come in the same day.
Ms. Burriesci. If there is no derogatory information----
Mr. Mulvaney. I'm not trying to accuse you of not doing
your job. I'm just getting trying to get information.
Ms. Burriesci. No, I understand, sir.
Mr. Mulvaney. Okay.
So, Ms. Kephart, how do we fix that?
Ms. Kephart. As I discussed in my testimony, I think the
win-win for everybody--for DHS, for the program itself, for the
traveler--is establishment of preclearance and making that
mandatory, something DHS has been pursuing for a while.
They're having trouble because every country they have to
develop an MOU with. If you made it part of the Visa Waiver
Program and established some requirements, I think it would
make it easier for Customs and Border Protection to do that
negotiation and to get that vetting prior to boarding, which is
what everybody is always concerned about.
Mr. Mulvaney. Very quickly to both you ladies--and I'm
going to go a little bit over time but not too much--is the
bill that the House passed earlier this week on a large
bipartisan margin, does that actually help the situation?
Ms. Burriesci. Yes--oh.
Mr. Mulvaney. Ms. Kephart?
Ms. Kephart. Go ahead.
Ms. Burriesci. Yes, sir. The bill adds practical security
value in many areas.
Mr. Mulvaney. Ms. Kephart, do you agree with that?
Ms. Kephart. It does--it reiterates current law. I don't
think it goes too much further than what we have on the books
right now. The requirement regarding information regarding
people who have traveled to terrorist known spots, that's going
to be very difficult to enforce, I think.
So I think it's a very good start. I really appreciate that
it was bipartisan and the White House is on board and this is
moving forward together, but----
Mr. Mulvaney. Last question.
Ms. Kephart. --we need more.
Mr. Mulvaney. I appreciate the indulgence. Last question.
Are we more at risk from someone traveling here from the United
Kingdom, which is a Visa Waiver Program country, because of the
information we get from them, or are we more at risk from
someone traveling from Russia, which does not participate in
the Visa Waiver Program?
Ms. Burriesci?
Ms. Burriesci. Sir, I certainly that think the Visa Waiver
Program adds additional security value than just vetting the
traveler alone. Because we have those information-sharing
arrangements, they are sharing their known or suspected
terrorists and foreign fighters with us. They are meeting
security standards----
Mr. Mulvaney. Because the U.K. participates in the program,
they give us information that other countries that do not
participate in the program do not.
Ms. Burriesci. That's exactly right, sir.
Mr. Mulvaney. Do you agree with that, Ms. Kephart?
Ms. Kephart. Well, I think the difference with U.K. is it's
one of the Five Eyes countries, so we have better information-
sharing with them than we do even with some of the other visa
waiver countries. So perhaps you take a country like Belgium,
which is not one of the Five Eyes--and then I still think the
Visa Waiver Program offers the opportunity to land in the
United States in a more vulnerable way than the visa process
does, although there are some benefits that Ms. Burriesci has
discussed.
Mr. Mulvaney. Thank you, Mr. Chairman.
Mr. Russell. The gentleman yields back his time.
And the chair now recognizes the gentlelady from Michigan,
Mrs. Lawrence, for 5 minutes.
Mrs. Lawrence. Thank you, Mr. Chair and Ranking Member.
I just want this on the record, that we passed a bill
before we had this dialogue. And, to me, in Congress, that is
not the process that the American people want us to do. This
dialogue is important, and it should have happened prior to us
voting on the bill.
I'm going to bring up an issue that I have continuously
talked about. Gun violence has been an issue that I've been
focused on since my time in Congress, particularly my district,
which has been plagued with gun violence. This is the first
year in history of our country that gun deaths are tracking to
be the leading cause of deaths of Americans age 15 through 25.
We are losing a generation to senseless gun violence.
The issue is becoming more disturbing when we hear that
there is the possibility that terrorists, identified
terrorists, are able to legally purchase weapons that they need
to commit act of violence simply because of a loophole in the
law.
Mr. Chair, I wanted to enter into the record the GAO
statement and letter dated March 6, 2015, if I may.
Mr. Russell. Without objection.
Mrs. Lawrence. The Government Accountability Office
recently analyzed FBI data on background checks for firearm-
related purchases for individuals on the terrorist watch list
between February 2004 and December of 2014.
Mr. Gude, are you familiar with this recent GAO study?
Mr. Gude. Yes.
Mrs. Lawrence. According to this GAO report, individuals on
the terrorist watch list attempted to purchase firearms or
explosives in the U.S. at least 2,233 times, of which 2,043 of
those sales were approved.
Mr. Gude, that means that 91 percent of the attempts by
suspected or known terrorists to purchase firearms were
approved. Is that correct?
Mr. Gude. To my knowledge, yes.
Mrs. Lawrence. In just the 2-year period between January
2013 and December of 2014, individuals on the terrorist watch
list were involved in firearm-related background checks 485
times, of which 455 were approved. That is a 94-percent
approval rate. Anyone that hears that number should have a
sense of concern.
My question to you, sir, is that, while we have individuals
who are legally not restricted--and we're talking about
individuals coming to this country. Tell me, what is your
opinion on the concern on the purchases of guns by those who
have been identified as terrorists?
Mr. Gude. Thank you for your question. It is an issue of
grave concern. And I want to applaud all the members of the
committee for their attention to the details in the questions
that the panel has received trying to identify where the actual
risks are in our system. This strikes me as one of our serious
risks.
In his opening remarks, Chairman DeSantis identified that
one of the categories of potential terrorist attacks are people
who are radicalized in the United States. There would be no
visa waiver or visa program or screening at the border that
would catch those individuals. We are relying on the
information that our intelligence agencies and our law
enforcement community have about those individuals to ensure
that they can detect and prevent any plots that target
Americans here in the United States.
It is hard for me to reconcile the level of risk tolerance
that many are advocating for entry into the United States,
which is understandably extremely low and one that I broadly
support, with what is the level of risk tolerance for
individuals who are on the terror watch list, who we either
know or suspect of links to terrorism, to be able to buy
semiautomatic assault weapons.
Now, any process that restricts the access to purchasing
weapons must also include an opportunity for a redress there.
You know, if there's an error in the list, if you were
erroneously denied purchase, there ought to be a robust process
for you to be able to have that decision overturned if it is
incorrect.
But the notion that we should allow potential errors in the
system to prevent us from denying easy access to the most
dangerous firearms to people that we think are terrorists is
just mind-boggling.
Mrs. Lawrence. Thank you.
Mr. Chair, I just want to end with this chilling comment by
a senior Al Qaeda operative. And I quote: ``America is
absolutely awash with easily obtainable firearms. You can go to
a gun show and pick up a fully automatic assault rifle without
background checks. So what are you waiting for?'' That is one
part of the radicalization.
The other thing I want to say before I close is that the
comprehensive and deliberate policy to fight against terrorism
is absolutely our job in Congress. And this issue should be
just as much a part of the debate and a part of the discussion.
And the next time we have someone coming here from the
Department of Homeland Security, I would hope that they would
have more data and be better prepared so that we can get more
information.
Thank you.
Mr. Russell. And the gentlelady has yielded back her time.
I wish to address one item. You cannot purchase a fully
automatic anything at a gun show. They are controlled by the
Bureau of Alcohol, Tobacco, and Firearms with a $200 tax stamp.
It takes months of approval, if approved, extensive checks.
There is a lot of inaccurate information out there, and I would
just correct the panel member on this issue.
An assault rifle is a select fire rifle that you can switch
from semiautomatic to fully auto. You cannot go and purchase
one of those anywhere. And we should not take the bait on ISIS
propaganda. And while we're having these discussions, we can't,
on suspicion alone, allow our constitutional liberties to fall
prey to such inaccurate nonsense.
And, with that, I would like to turn over the chair--well,
actually, I will turn to and recognize Mr. Mica from Florida,
and then I will turn over to the chair.
Mr. Mica. Well, thank you.
And, again, the gentlelady preceding me mentioned about the
deaths in the United States with firearms. And most of those
weapons are obtained illegally. And it appears even in the San
Bernardino case that some of the weapons were obtained
illegally. So they are available.
In France, they probably have the tightest gun control
measures, and I'd love to share with you a list of the weaponry
that was assembled in the latest Paris attack. And I was over
and actually saw the sites of the Hebdo and the deli attack.
And I saw the weaponry that was assembled there with a very,
very, very, very, very tight gun control.
I have a question first for the Homeland Security witness.
Okay. We had this female terrorist in San Bernardino, and she
was granted a visa to enter the United States, a fiance(e)
visa, as far as we know. Do you think that is the case, or
you----
Ms. Burriesci. She did have a K-1 visa, yes.
Mr. Mica. Okay. And to do that, she had to submit to an
interview. Is that correct?
Ms. Burriesci. Yes, with State Department.
Mr. Mica. So she had an interview. She also had to provide
some biometrics. Is that correct?
Ms. Burriesci. Yes, sir. Biometrics and biographic
information and an interview----
Mr. Mica. But biometric?
Ms. Burriesci. All of them as part of the visa application.
Mr. Mica. Okay. So that's the same method, though, that
pretty much we will be adopting should the Visa Waiver Program
we just--we just considered before Congress pretty much the
same thing, an interview and biometric, because that's what is
missing. If you want to come in on a visa waiver, you don't
have to go through that now. Is that the case?
Ms. Burriesci. All those checks occur, and it's a matter of
the timing of where they occur.
Mr. Mica. But, again, we're talking about doing the same
kind of thing we did with her.
Ms. Burriesci. There----
Mr. Mica. Yes. Yes. The answer is yes. I'll answer my own
question.
Okay. So a French passport, if you entered as a French
citizen, does it contain biometric?
Ms. Burriesci. So all the visa waiver programs are issuing
e-passports, and the minimums----
Mr. Mica. Do they have biometric?
Ms. Burriesci. So the minimum standard for----
Mr. Mica. Do they have biometric?
Ms. Burriesci. Yes, sir. It has a digital photo in it. Yes.
Mr. Mica. A photo. Do they have fingerprints?
Ms. Burriesci. Many visa waiver programs also include--not
many. I'm not actually----
Mr. Mica. Some do.
Ms. Burriesci. --sure of the number, but some have
fingerprints.
Mr. Mica. But some don't.
Ms. Burriesci. But some don't, similar to the United States
doesn't----
Mr. Mica. And many entry points in the United States do not
have the capability of fingerprint verification, do they?
Ms. Burriesci. I'm sorry, I missed the beginning of your
question.
Mr. Mica. Many entry points in the United States do not
have the ability or the capacity to confirm fingerprint
identification.
Ms. Burriesci. So all of our ports of entry do capture and
run checks on biometrics. If you're referring to the e-Passport
itself, all CBP----
Mr. Mica. When you come across the Mexican border, all of
those folks coming in are, in fact--their fingerprints are
being checked?
Ms. Burriesci. Yes.
Mr. Mica. Ms. Kephart says no.
Ms. Burriesci. It depends if we're talking about the e-
Passport or just----
Mr. Mica. No, just people coming----
Ms. Burriesci. Everybody coming into the country----
Mr. Mica. No, they are not.
Ms. Burriesci. --yes, we take their prints for individuals
coming into the country. Visa Waiver Program or visa, we're
taking people's prints and we're running checks on them.
Mr. Mica. A French citizen who comes into the United States
is coming in with a passport that might have photographic
information embedded in it, but they don't have fingerprint.
Ms. Burriesci. But they're going to see a CBP officer and
they're going to have their fingerprints taken.
Mr. Mica. Every French citizen who comes in?
Ms. Burriesci. Yes, sir.
Mr. Mica. And we have the capability at every border to
capture that, and we're doing it with all foreign nationals
that are coming in?
Ms. Burriesci. The person is going to provide their prints
right there at the POE, and we are going to run checks.
Mr. Mica. And Ms. Kephart is saying no.
Ms. Burriesci. We read their e-Passports and pull up their
digital photo. So we're not lifting fingerprints from the
passport; we're actually taking it from the passenger.
Mr. Mica. But they're not embedded in that, so you don't
know what----
Ms. Burriesci. So most countries--not most countries. Most
e-Passports, if you do have fingerprints on the chip----
Mr. Mica. Yes. But, again, you're saying ``most,'' not
``all.'' And we don't do this with all, and we have no
capability for all.
Ms. Burriesci. We do have the capability, sir, to read the
e-Passport, and we do take----
Mr. Mica. But you keep talking about the e-Passport, and a
lot of these are not e-Passports.
Let me ask you a question. When you go through and grant a
visa, are the State Department folks who are doing the
interviewing, are they all checking these folks against the
U.S. no-fly list?
Ms. Burriesci. Yes, sir.
Mr. Mica. They are?
Ms. Burriesci. Yes. ESTA or visa, everybody gets run
against the terrorist watch list.
Mr. Mica. No, I didn't ask about the terrorist watch list.
Ms. Burriesci. Oh, did I misunderstand?
Mr. Mica. I asked about the no-fly list. I think there's--
--
Ms. Burriesci. The no-fly list is a subset----
Mr. Mica. --400,000 people.
Ms. Burriesci. I'm sorry. I don't mean to interrupt. The
no-fly list is a subset of the overall terrorist watch list.
Mr. Mica. But my question was the no-fly list.
Ms. Burriesci. Yes, they are run against the no-fly list.
Mr. Mica. Okay.
And the problem you have is, we've seen with the latest
incident we have certain protections, we had an interview of
this individual, and that individual defied us. I mean, the
same system you put in place we may be putting in place for
visa waiver. You don't know what is in people's hearts and
minds. These people are already, some of them, are--one was
embedded, one came in, and it's very difficult.
I don't have time to get into profiling, but there's some
commonality to all of these folks. I won't get into that today.
And I think we have to go beyond what we're doing now or we're
not going to stop these individuals.
And I yield back the balance of my time.
Mr. Mulvaney. [presiding.] I thank the gentleman.
We'll now recognize the lady from the District of Columbia,
Ms. Holmes Norton, for 5 minutes.
Ms. Norton. Thank you very much, Mr. Chairman.
I'm going to tell you, because I represent the Nation's
capital, my district is caught both ways. On the one hand, we
have very much approved the Visa Waiver Program. About the only
tourists who don't come to the Nation's capital are
international tourists--that is to say, where there are more to
come, on the one hand. And yet the Nation's capital is a major
terrorist target. So that balance is very difficult for us.
On the terrorist watch list, Ms. Burriesci, you have been
asked endlessly about the numbers on that list or the no-fly
list. I am far less interested in the numbers than I am in the
controversy surrounding that list.
Those who want people to be able--and, by the way, there is
a bipartisan bill, Peter King's bill, that would say, once you
get on that list, you can't by a gun. I am cosponsor of that
bill. But, of course, there have been attempts to pass a ``no
gun if you're on that list,'' tries here in the House and the
Senate.
Since 9/11, there has been endless controversy that those
who want people to be able to buy guns no matter what have,
frankly, used, and that is the inaccuracy--the so-called
inaccuracy, because that's really my question--of the terrorist
watch list and the no-fly list.
Could I ask you, what attempts have been made to address
the accuracy issue that has now sent some people--I think the
ACLU is in court on the inaccuracy of the issue on behalf of
some people who were on the list who shouldn't have been on the
list. Can you give us any information on how or what you are
doing to clean those lists so that they are accurate?
Ms. Burriesci. Yes, ma'am. Thank you for asking that
question.
Not only are there robust criteria to even get on that
list, but that list is reviewed regularly by the Terrorist
Screening Center that owns it----
Ms. Norton. So, because I only have 5 minutes----
Ms. Burriesci. --to make sure that----
Ms. Norton. So it's reviewed regularly. And does that mean
that you are regularly putting on and removing names and that
you believe that the list is basically accurate?
Ms. Burriesci. Ma'am, there are people that get on the list
and change status on the list on a daily basis.
Ms. Norton. How about people who have the same name? You
know, we always talk about people named John Kennedy or some
such name, Eleanor Holmes Norton maybe. Do you deal with people
who have common names?
Ms. Burriesci. So there is something called the DHS
Traveler Redress Inquiry Program. It is a one-stop shop for
the--it's operated out of TSA, but it's a one-stop shop for all
travelers.
Ms. Norton. If you are on the list and shouldn't be on the
list, is there an appeal process so you can get off the damn
list?
Ms. Burriesci. I'm sorry?
So you can apply through TRIP if you feel that you've
been----
Ms. Norton. So there is an appeal process.
Ms. Burriesci. If your travel has been delayed, you can
apply there. And if you're not that Burriesci----
Ms. Norton. I wish you would provide----
Ms. Burriesci. --then you get a number that you----
Ms. Norton. I wish you would provide us some information on
the process being used so the chair will have it to check on
the accuracy, because I have another----
Ms. Burriesci. Certainly.
Ms. Norton. --question.
Ms. Burriesci. Certainly.
Ms. Norton. It's on the EB-5 program. Again, my district
has used the EB-5 program. You know, of course, that that is a
program that allows investment in exchange, I believe, for a
visa. And you have to say that you're going to provide 10
permanent jobs. There are things that have been built in the
District of Columbia, big things, using that program.
How are those people vetted, EB-5 investment visas? Do they
go through the normal visa process, or do they go through some
other process?
Ms. Burriesci. I know vetting is done on those, but I don't
have the specifics on the EB-5. That's not one of the areas I
have concentrated on and have information. But that is
something, certainly----
Ms. Norton. Ms. Kephart, do you know anything about that?
Ms. Kephart. I have in the past, and I'm really sorry, but
I don't have it at the----
Ms. Norton. Mr. Chairman, could I ask that that information
be provided to this committee?
This has been a popular program here and across the United
States. We need more information on visas in connection with
that program, as well. It's not only the person; it's relatives
that can come in.
Thank you very much, Mr. Chairman.
Mr. DeSantis. [presiding.] We will be doing a hearing on
the various visa programs, and I think that that will obviously
be one that will be grist for the mill.
Okay. The chair now recognizes the gentleman from North
Carolina, Mr. Meadows, for 5 minutes.
Mr. Meadows. Thank you, Mr. Chairman.
And thank each of you for your testimony.
Ms. Burriesci, let me come to you and follow up where Mr.
Jordan left off on visa overstays.
In part of your testimony here today, you said you're
making progress, that the quality of the data with regards to
visa overstays is improving, I think. Is that correct?
Ms. Burriesci. Yes, sir.
Mr. Meadows. Okay. So if the quality of the data is
improving and yet--so you're able to testify to that, but you
have no idea how many people overstay their visas. Do you have
any idea? A ballpark?
Ms. Burriesci. Sir, we have preliminary numbers----
Mr. Meadows. And what would those be?
Ms. Burriesci. --that the Department has compiled, and we
are doing a thorough review of those numbers because we know
how important they are. The Secretary has----
Mr. Meadows. Well, the Secretary--let's get to that. The
Secretary, in testimony----
Ms. Burriesci. --ensured we do our due diligence on these
numbers.
Mr. Meadows. No, but the Secretary, in sworn testimony
before Congress in 2013, said that she would get them to
Congress by December of 2013, and here we are almost 2 years
later. So how long does it take to verify the numbers?
Ms. Burriesci. Sir, we know how important these numbers
are, and we----
Mr. Meadows. That's not what I asked. I said, how long does
it take to verify the numbers?
Ms. Burriesci. Well, at that time, we were still looking
back at data that was from where the systems were not working
well together. And now they are----
Mr. Meadows. Okay. Is it true----
Ms. Burriesci. --better at giving us additional----
Mr. Meadows. All right. Is it true that you have an
internal memo that goes through your agency, or at least to
some in your agency, that would indicate the number of visa
overstays?
Ms. Burriesci. Yes, sir. It----
Mr. Meadows. I thought it was. I have information that
would indicate that it is. So what number is on that internal
memo?
Ms. Burriesci. It is a draft interim entry/exit----
Mr. Meadows. That's not what I asked. That's a great answer
to a question I didn't ask.
Ms. Burriesci. I'm sorry.
Mr. Meadows. What number is on that internal memo?
Ms. Burriesci. I can----
Mr. Meadows. Ballpark. I'll give you plus or minus 10,000.
What ballpark?
Ms. Burriesci. I'll take that back to the Department, sir.
Mr. Meadows. Is it less than a million?
Ms. Burriesci. Sir, I will----
Mr. Meadows. Have you seen the memo?
Ms. Burriesci. I have, but it has been a little while since
I have seen it.
Mr. Meadows. All right. So you have seen it. You looked at
a number. Was the number greater than a half-million?
Ms. Burriesci. Sir, I don't have a number to----
Mr. Meadows. So you're refusing to answer the question.
It's not that you don't know. Is that correct?
Ms. Burriesci. Because the numbers are still going through
finalization, I'm not authorized to provide a draft number.
Mr. Meadows. Okay, but Federal law requires that you report
that to Congress, does it not?
Ms. Burriesci. Yes, sir, the Department is responsible to
do that.
Mr. Meadows. So at what point are you going to comply with
Federal law?
Because, in 2011, the number was 1.6 potential visa
overstays--million, 1.6 million. In 2013, according to GAO, it
was potentially 1 million visa overstays. How many visa
overstays does it take to take down the Twin Towers?
Ms. Burriesci. Sir, I can't answer that.
Mr. Meadows. So when is this committee going to get the
information on visa overstays?
Ms. Burriesci. I understand the urgency that you're asking
that question. And I'll make sure that that gets back to my
front office.
Mr. Meadows. Listen, they already have the request. At what
point are you going to comply with Federal law and give it to
this committee? At what point? I mean, or maybe I'll ask it a
different way: What justification do you have to violate
Federal law?
Ms. Burriesci. Sir, I will take back exactly what you're
asking and make sure that my front office is aware----
Mr. Meadows. Do we have to subpoena the numbers?
Ms. Burriesci. I don't have a better answer for you today.
I'm sorry, sir.
Mr. Meadows. All right. So if we're looking at the visa
overstays--and we're sitting here debating about a Visa Waiver
Program, and yet the very instance of visa overstays and the
potential terrorist threat that accompanies that, you're
tracking that, and yet the last information that Congress got
that was reliable was 1994. Do you not see a problem with that?
Ms. Burriesci. I think you should receive the data as soon
as it is available. And I will take that back to the--and
provide it to my department's front office and make sure that
they understand exactly what you're asking.
Mr. Meadows. Let me finish by asking, would you think 30
days would be reasonable enough to vet the numbers?
Ms. Burriesci. I'm not sure. I don't have a timeframe. But
I want to make sure that----
Mr. Meadows. So let me make sure I understand this
correctly. You can sit here and give us sworn testimony that
you're vetting with unbelievable surety from a national
security risk all the potential people coming from abroad here
and that you can vet those as it relates to national security
risk, but you can't vet the number of visa overstays with any
degree of certainty in the 2-year period?
Ms. Burriesci. Sir----
Mr. Meadows. Was that your testimony?
Ms. Burriesci. No, sir. We are vetting against law
enforcement and counterterrorism and international databases.
That is the screening aspect----
Mr. Meadows. How hard is it to figure out how many visas
overstays we have? That should be easy.
Ms. Burriesci. Yes.
Mr. Meadows. You got one document; you got one that doesn't
match up. What is the difference? It's simple mathematics. I
yield back.
Mr. DeSantis. The gentleman yields back.
You got to do better than that, Ms. Burriesci. This is not
inspiring a lot of confidence. And I think that more questions
have been raised than answered.
I will now recognize Ms. Lujan Grisham for 5 minutes.
Ms. Lujan Grisham. Thank you, Mr. Chairman.
And, quite frankly, you just stole my opening statement. I
mean, we are all here wanting to do the very same thing, to
highlight the vast, productive, high-level security effort
that, quite frankly, outside sources have done a far better job
identifying our strengths than certainly anybody from the
administration today on this panel or prior to this panel.
And in this job, it is our job to make sure that the
information and sources that we are seeing, reading,
evaluating, gathering, that you can confirm or deny those so
that in that reporting process--whether it be through
testifying before this committee or providing those reports--
that we can do our job effectively by assisting you with policy
shifts that enhance your opportunities.
But what we're getting here today is ``I'm not sure,'' ``I
don't know,'' ``can't do it,'' ``haven't seen it,'' ``can't
really tell you.'' And I'll tell you this, with only three
major databases, as I understand it, and doing a quick search
while I've been sitting in this committee for the past 30
minutes, I can tell you what the Wall Street Journal says. The
Wall Street Journal says that there are 16,000 names on the
watch list. On TIDE, there's about 1 million people and that
there's a much smaller--they didn't give me a number--on the
TSA no-fly list. Now, I don't consider that my staff or anybody
on this committee should be using that information as the data
points.
But if that's the only place we're getting it, then, Mr.
Chairman, I think you should subpoena the Department because my
constituents expect me, particularly after the changes that
we've made to the Visa Waiver Program, that if you're going to
be reporting to me, what confidence do I now have, Secretary,
that you're actually going to provide those reports and that
our enhanced screenings so that we're evaluating now the
threat, the risk of terrorism, that you can do that? With only
three lists, my expectation is those numbers would be rote to
you, whether or not they're specifically your responsibility
out of Homeland Security because we have a Homeland Security
Department for exactly those reasons, where we consolidated
these efforts and we enhanced the opportunity for
collaboration. And you've given me no confidence based on your
testimony that you are leading that effort in any meaningful or
remarkable way.
Now, I hope I'm wrong. So I'm expecting you and this
administration to give this committee and Congress the kind of
assurances and security about our screening processes that we
deserve and that this country deserves. But I'm really
disappointed by this hearing. And I was hoping that I wouldn't
be. And, in fact, to that point, just exactly what are you
going to do and how are you going to proceed by giving us
credible and confident information about assessing the risk,
given that one of the issues I get concerned about is the fact
that the countries that we're concerned about, the Iraqi and
Syrian borders are so porous, how are we going to track folks
and what kinds of things can you--without telling me that I
should get a classified briefing, and I certainly don't want
you to breach any of those classified or protected information.
But give me a sense that you are actually doing your job and
have some ideas about just exactly how you're going to increase
that assessment based on that legislation.
Ms. Burriesci. To address several of your points, the
action that I'm going to take is going back to the
authoritative source for the Terrorist Screening Center to make
sure that you get the accurate--to make sure the committee
members get the accurate numbers. I have a host of stats here,
and I just didn't have those on my page.
Ms. Lujan Grisham. That wasn't my question either. I want
to talk about the porous borders. You tell me now about the
next phase. So I'm disappointed in the current efforts clearly,
clearly. I think I can say the vast majority of this committee
is. Now tell me about the next phase. Where are you in being
prepared to deal with very tough issues? I don't want to
diminish those. But where are you in helping us identify better
ways to deal with a pretty difficult problem, just given that
one example? You've had many today. So the fact that people can
travel between those countries which are high-risk areas and we
don't know about it, what are you going to do about that from a
data security management perspective? Recommend to me.
Ms. Burriesci. One of the things that you saw in the White
House's announcement last week is asking additional questions
and enhancing ESTA further to be able to identify travel that
doesn't have----
Ms. Lujan Grisham. Give me a specific.
Ms. Burriesci. --a nexus to the United States, which is
where, I agree, if there's not a nexus to travel, continuous
travel departing from the United States to go to any of those
countries, it is much harder for us to find that information.
If our foreign partners, whether in a VWP country or not, but
if our foreign partners are not also sharing that information
with us--and, thankfully, our VWP countries are, when they know
that there's a foreign terrorist fighter, sharing that with
us--then, yes, that is where that vulnerability lies.
Ms. Lujan Grisham. And, Mr. Chairman, I'm out of time too.
You've been incredibly--we want you to answer. And I agree that
you are--you are in our communication now giving me a sense
that you understand the problem. And I appreciate that. And I
didn't mean to make that sound demeaning. But this is a
significant problem.
But what are you doing about it? Give me one, give me one
specific that you can in the context of this hearing so I know
that you're on the right path because that's what I need to
explain to my constituents: this is what is happening.
Mr. DeSantis. The gentlelady's time has expired. We have
kind of gone round and round.
Why don't you provide the answer in writing because I don't
think we've gotten very good answers right now.
Mr. DeSantis. And I don't know if it's a lack of
preparation or what not. I think it's a good question. So the
gentlelady's time has expired.
Ms. Lujan Grisham. Thank you, Mr. Chairman.
Mr. DeSantis. I'm going to recognize the gentleman from
North Carolina for 5 minutes, Mr. Walker.
Mr. Walker. Thank you, Mr. Chairman.
I appreciate the opportunity.
Mr. Jenkins, you haven't been able to participate a whole
lot, but I still wanted to recognize you and thank you for
being here. You do great work.
Mr. Gude, you stated earlier that when we make decisions,
you said: It is ignorant when we make decisions based on
incomplete information.
The statement, ``Americans are dying right now because of
the existence of Guantanamo; closing it responsibly will save
American lives,'' do you agree with that statement?
Mr. Gude. I think it has lessened currently as a terrorist
recruiting tool. But I certainly think that in the past, it has
been a substantial recruiting tool for terrorists.
Mr. Walker. I don't know if that was a yes or no because
that was actually your statement. You also said this: President
Barack Obama has done more in a few short hours to protect the
security and uphold the values of the United States than his
predecessor did throughout his long 8 years in office.
Do you agree that statement is true? Or is that maybe an
ignorant statement when you didn't have all the complete
information?
Mr. Gude. No, I remember saying that. And I clearly believe
that. It was in response to the President's executive orders on
his first full day in office to close down the black site
prisons, to end torture, and establish a process to close
Guantanamo.
Mr. Walker. Would you agree, though, we have more
information now after 7 years?
Mr. Gude. Well, I think that a lot of time has passed.
Mr. Walker. It has. The last statement that you made in the
past, and I want to hit a couple you made today. You said
America is back and ready once again to lead the community of
nations toward a future that is both more secure and more free.
It doesn't seem to be working out that way right now, does it?
Mr. Gude. I think there are clearly threats that we as a
country and we as an international community face. But, look, I
think that we also forget the state of the world as it existed
in early 2009 and late 2008. And I fully, fully believe that
the United States is in a stronger position now than it was
then.
Mr. Walker. So basically would it be fair to say you
believe right now we're safer as a country than where we were 7
years ago?
Mr. Gude. Yes.
Mr. Walker. Okay. Thank you for being on record with that.
Today, you said in regard to Islamic, you said it's
impossible to state so boldly that ISIS is a religious sect of
Islam. You said it's not. How can you be so bold, in fact, you
said you used your word and said it was ignorant to think that
way. And you even said we need to eradicate such ideology. I
find that interesting that you would talk about not the
eradication of ISIS but the eradication of such ideology. Do
you think ISIS would agree with you that they're not a
religious sect of radical Islam?
Mr. Gude. I think ISIS is quite clearly trying to represent
Islam. But I don't believe that it does. And I think the
overwhelming majority of Muslims in the world would agree with
me.
Mr. Walker. How many millions would you suggest hold to
this radical sect of Islam?
Mr. Gude. I can't----
Mr. Walker. Would you say that there's millions?
Mr. Gude. No.
Mr. Walker. You don't believe there's millions that hold to
that sect. I would have to share some information accordingly.
My concern is that here you are today as a witness talking
about the security of our country, the no-fly list, some of the
other things. And yet the statements that you're on record seem
to be overwhelmingly partisan. And even today, you're on record
saying that our country is safer now than where it was even
though we're having explosions as far as this no-fly list, this
thing, we've got Visa Waiver Programs we're trying to figure
out. But you believe that right now we are safer as a country
than where we were even when all this information wasn't even
discovered?
Mr. Gude. Yes, I do.
Mr. Walker. Okay. I have no further questions. Mr.
Chairman, I yield back.
Mr. DeSantis. The gentleman yields back.
The chair now recognizes the gentleman from South Carolina
for 5 minutes, Mr. Gowdy.
Mr. Gowdy. Thank you, Mr. Chairman.
Ms. Burriesci, how many visa overstays are there in the
United States?
Ms. Burriesci. Sir, as I said earlier, I don't have that
statistic with me.
Mr. Gowdy. Let's use the President's statistics that there
are 11 million, and 40 percent of them would be visa
overstayers, as opposed to border crossers. Do you take
exception with what the President said? Or can we just use that
as kind of a baseline?
Ms. Burriesci. I, in all honesty, I don't recall what the
President said about it. But I'm not sure where those stats are
coming from. I just don't have it with me.
Mr. Gowdy. So you cannot tell me how many visa overstayers
are in the United States?
Ms. Burriesci. I don't have that information with me.
Mr. Gowdy. Is there a list?
Ms. Burriesci. There is an interim draft entry/exit report
which has overstay data in it.
Mr. Gowdy. No. No. Are----
Ms. Burriesci. I----
Mr. Gowdy. Is----there a list of names of visa overstayers?
Ms. Burriesci. Oh, so anybody who has overstayed,
regardless of if it's a visa or a Visa Waiver Program, those
individuals have final removal orders and our Immigration and
Customs Enforcement agency receives that list.
Mr. Gowdy. So there's a list?
Ms. Burriesci. Yeah.
Mr. Gowdy. Is that a list shared with federally licensed
firearms dealers?
Ms. Burriesci. I am not sure.
Mr. Gowdy. Well, it is actually currently against the law
for anybody who is here illegally or unlawfully to possess or
purchase a firearm. And I understood in Mr. Gude's opening, he
wants to create a new list of prohibited persons, which just
struck me that maybe we ought to find out how good a job we're
doing with the current statutes that we have. Do you know how
many prosecutions that there were for, say, the last 3 years
for folks who tried to purchase a firearm that were not here
legally?
Ms. Burriesci. No, sir. But I can ask ICE that question.
Mr. Gowdy. Well, it wouldn't be ICE. It would be the
Department of Justice.
Ms. Burriesci. Then I wouldn't have information because I'm
with DHS.
Mr. Gowdy. Well, and the good news for us is we do have
that information. And it's an incredibly small number of
prosecutions, like less than 100. So you can understand some of
our skepticism when we hear folks calling for a new category of
prohibited persons that cannot purchase or possess firearms
when we've done such a dreadful job with the current
categories. It is currently unlawful, illegal for people who
are not legally in the country to purchase or possess firearms.
And my question is, how many of those folks have been
prosecuted?
Ms. Burriesci. I would have to----
Mr. Gowdy. And the number is really small. Let me ask you
another question about the terrorism list. What process is
afforded a U.S. citizen, not someone who has overstayed a visa,
not someone who crossed the border without permission, but in
the American system, what process is currently afforded an
American citizen before they go on that list?
Ms. Burriesci. I'm sorry, there's not a process afforded
the citizen prior to getting on the list. There is a process
should someone feel they are unduly placed on the list.
Mr. Gowdy. Yes, there is. And when I say ``process,'' I'm
actually using half of the term due process which is a phrase
we find in the Constitution, that you cannot deprive people of
certain things without due process. So I understand Mr. Gude's
idea, which is wait until your right has been taken from you
and then you can petition the government to get it back. I
understand that that's his idea. My question is, can you name
another constitutional right that we have that is chilled until
you find out it's chilled, and then you have to petition the
government to get it back? Is that true with the First
Amendment?
Ms. Burriesci. Sir, there are strict criteria----
Mr. Gowdy. That's not my question, ma'am. That's not my
question. My question is what process is afforded a United
States citizen before that person's constitutional right is
infringed? And he's fine with doing it with the Second
Amendment. My question is, how about the First? How about we
not let them set up a Web site or a Google account? How about
we not let them join a church until they can petition
government to get off the list? How about not get a lawyer? How
about the Sixth Amendment? How about you can't get a lawyer
until you petition the government to get off the list? Or, my
favorite, how about the Eighth Amendment? We're going to
subject you to cruel and unusual punishment until you petition
the government to get off the list. Is there another
constitutional right that we treat the same way for American
citizens that we do the Second Amendment? Can you think of one?
Can you think of one?
Ms. Burriesci. I don't have an answer for you, sir.
Mr. Gowdy. I'm out of time. But I've got a couple other
questions. And I'm sure the chairman will indulge me. Do you
know whether the female terrorist in California was subjected
to an in-person interview before her K visa was issued?
Ms. Burriesci. As part of the visa process, yes, that
individual was interviewed.
Mr. Gowdy. Do you know who interviewed the person?
Ms. Burriesci. I do not have that information. That would
be a question to ask the State Department.
Mr. Gowdy. Do you know how long the interview took place,
how long it lasted?
Ms. Burriesci. That would also be a question for the State
Department. They conducted the interview.
Mr. Gowdy. Do you know what investigation, if any, was done
into her in terms of education, employment, social media?
Ms. Burriesci. Those are all questions that should be
referred to the State Department.
Mr. Gowdy. Who has her immigration file?
Ms. Burriesci. USCIS would have the immigration file.
Mr. Gowdy. I thought USCIS was a subset of DHS?
Ms. Burriesci. Yes.
Mr. Gowdy. And you're with DHS, so why wouldn't I ask you?
Ms. Burriesci. So the process would start with USCIS for a
K-1 visa.
Mr. Gowdy. I know. And then it goes to the State
Department.
Ms. Burriesci. And then it goes to the State Department,
which is where all the checks to see if that individual is
eligible for the K-Y--K-1 visa--I'm sorry, I even lost my own
train of thought.
Mr. Gowdy. I know exactly where you're going.
Ms. Burriesci. If someone is eligible for the K----
Mr. Gowdy. Mr. Rodriguez was with us yesterday.
Ms. Burriesci. Yes. Then the individual would travel to the
United States. Of course, there's vetting done on the
individual as they travel as any individual is. And then,
within 90 days, they can apply for legal permanent residency.
And then that is also when USCIS would get involved and do
biographic and----
Mr. Gowdy. I understand the process. And I'm out of time.
I'm just going to make this point before I yield back to
the chairman: There's an application process--we're not even
talking about the Visa Waiver Program; we're talking about the
process where there actually is a visa issued--there's an
investigation; there's an interview; there's another interview;
and yet we still got it wrong. And I would think the chairmen,
one of whom is sitting beside me, and Chairman DeSantis and
Ranking Member Lynch, I would think that they would be very
interested in her immigration file to find out what questions,
perhaps, weren't asked that should have been, so we can learn
lessons after the 14 are dead, and hopefully, we can learn
before there are 14 more dead. So I would encourage you to ask
your boss to make that file available to both the ranking
member of the full committee, the chairman of the full
committee, the ranking member of the subcommittee, and the
chairman of the subcommittee.
And, with that, I yield back to the chairman.
Mr. DeSantis. The gentleman yields back.
So can you provide that by close of business Friday?
Ms. Burriesci. I'll take that back. Thank you.
Mr. DeSantis. Can you do it, though?
Ms. Burriesci. I would love to say yes, but I'm not in
charge of that. So I want to make sure, if not shorter, yes.
Mr. DeSantis. Before I recognize the ranking member of the
full committee, you can't give us the number of people who are
on expired visas? You have staff. Can they just call DHS so we
get it before the hearing is over? Do you want to take a 5-
minute recess to make that phone call? This should not be very
difficult.
Ms. Burriesci. To find out----
Mr. DeSantis. We have had a number of questions about how
many people are here on visa--have overstayed their visas. And
we've not been able to get even a ballpark estimate about that.
I would imagine somebody in this big, sprawling Department has
got to have some type of information in that regard. So my
question to you is, is there a way that you can get that to us
today? Can you make a phone call to do it? Can one of your
staff make a phone call?
Ms. Burriesci. I will make a phone call. I'm happy to do
it.
Mr. DeSantis. Do you want to recess for 5 minutes and
you'll do it?
Ms. Burriesci. I'm happy to make a phone call.
Mr. DeSantis. Okay. Well, the hearing stands in--so we're
not going to get----
Mr. Chaffetz. Will the gentleman yield?
Mr. DeSantis. We'll recognize----
Mr. Cummings. No, I don't mind her making a phone call. I
appreciate the courtesy, Mr. Chairman. But if you want to make
a phone call to help us get issues resolved, I don't mind
waiting. I have no problem.
But thank you, Mr. Chairman. I appreciate it, both
chairmen.
Mr. DeSantis. We will stand in recess for 5 minutes. And
we'll resume at 12:31.
[Recess.]
Mr. DeSantis. We'll now come to order.
The chair will recognize the ranking member, Mr. Cummings,
for 5 minutes.
Mr. Cummings. Mr. Chairman, before we do that, I want to
see if she got the information. I don't want that taken off my
time.
Did you get the information?
Ms. Burriesci. I did get some information on the VWP
overstay numbers. It's at--I couldn't get everything.
Mr. DeSantis. What's the number?
Ms. Burriesci. So the VWP overstay rate is--I'm sorry--for
citizens of VWP countries, the overstay rate is around 2
percent.
Mr. DeSantis. So that means people that have stayed past 90
days when they came in on the Visa Waiver Program? Or is that
people who----
Ms. Burriesci. Citizens--that's a great question. I believe
that is true, yes, for business and tourism reasons, so 91-plus
days.
Mr. DeSantis. Okay. But we will need that in writing. And
we want to see where you're getting those numbers, because I
know there will be people, probably up here, who will disagree
with how those numbers were arrived at.
And, with that, we'll recognize Mr. Cummings for 5 minutes.
Mr. Cummings. Thank you very much, Mr. Chairman.
Ms. Burriesci, as you know, 2 days ago, the House passed
legislation to strengthen the security of the Visa Waiver
Program, H.R. 158, the Visa Waiver Program Improvement and
Terrorist Travel Prevention Act of 2015. Based on the recent
terrorist attacks in Paris and San Bernardino, Congress needs
to act to close the security gaps in the VWP program, and it's
my sincere hope that the Senate will take up the House bill and
send it to the President's desk as soon as possible.
Do you believe that H.R. 158 will help DHS' efforts to
implement the Visa Waiver Program?
Ms. Burriesci. I assume that's directed at me?
Mr. Cummings. Yes, ma'am.
Ms. Burriesci. Yes, absolutely, sir. It always helps to
codify some of the enhancements in statute because that helps
other countries be able to point to our statute and help when
they need to make legal changes in their own systems.
And the law has a lot of practical security value--I'm
sorry, not the law--H.R. 158 has a lot of practical security
value measures in it. So I do think it will assist security,
yes, sir.
Mr. Cummings. And the administration called on Congress to
enact some of the reforms that are included in H.R. 158. For
example, the bill would require that all travelers in the Visa
Waiver Program be screened against INTERPOL databases to
identify high-risk travelers.
Will putting this requirement in the statute help DHS with
encouraging compliance with countries participating in the Visa
Waiver Program?
Ms. Burriesci. Yes, the requirement that VWP countries use
that database to screen, themselves, for their inbound
travelers, absolutely. We do it already here in the United
States.
Mr. Cummings. Now, the administration also requested that
Congress act to accelerate the requirement for 100 percent of
VWP travelers to use e-Passports. Why is it important for the
VWP travelers to use an e-Passport?
Ms. Burriesci. So an e-Passport includes a chip on it, it
includes the biographic information on a passport, as well as
it holds a digital photo. It's harder to--what's the word for
fraudulently mess it up? Sorry for blanking out there for a
second. And, therefore, they are more secure, they have more
secure features in them.
So we are encouraged by the fact that all VWP countries
currently issue e-Passports. And CBP has the capability to read
e-Passports at our POEs, at our ports of entry.
Mr. Cummings. You know, Ms. Kephart, I missed your
testimony, but I want to make sure we're clear on some things
that go to the truth, the whole truth, and nothing but the
truth.
Ms. Kephart. I understand.
Mr. Cummings. And you're sworn, you know. I want to remind
you of that.
And the American people get kind of frustrated when they
see witnesses come before them who might have an interest in
themselves or their companies making a lot of money off of
their testimony in some way or another.
I'm not saying that's what you're doing. I just want to be
clear. I think it's very important to not only the integrity of
this committee but the integrity of this Congress and the
people who are watching this that we know exactly what your
situation is.
Now, I want to reiterate, you are the director of homeland
security solutions for--what's the name of the company?
Ms. Kephart. It's MorphoTrak, sir.
Mr. Cummings. And your job is to sell biometric technology
and systems to the government. Is that correct?
Ms. Kephart. As of 3 months ago.
Mr. Cummings. Yeah, but you're employed.
Ms. Kephart. I spent years doing----
Mr. Cummings. You're getting a paycheck.
Ms. Kephart. Yes, sir.
Mr. Cummings. Right. Okay.
Ms. Kephart. Absolutely, I do.
Mr. Cummings. That's the big deal. You're getting a
paycheck.
Ms. Kephart. Right. And I am happy--I filled out the form
in my personal capacity. I clearly made a mistake, as Mr.
Cartwright pointed out earlier. And I am happy to go back and
have our legal counsel--engage them and do it correctly.
Mr. Cummings. Well, I just want to make it clear so that
the people watching this----
Ms. Kephart. I didn't do it on purpose, sir.
Mr. Cummings. Ma'am, I'm not saying you that did it on
purpose.
Ms. Kephart. Yeah.
Mr. Cummings. But I'm telling you that when you come before
us----
Ms. Kephart. I understand.
Mr. Cummings. --and you sign these documents, you should
pay close attention to what you're doing. Because I can tell
you, there are people on this committee, under certain
circumstances, that would refer you for some criminal action.
I'm just telling you. I've seen it many times.
And so I don't know whether you--I mean, it doesn't take a
rocket scientist to read this--this is a pretty simple form.
And so, in fact, your company has millions of dollars in
Federal contracts. Is that incorrect? I see you're frowning up,
but am I wrong?
Ms. Kephart. We have Federal contracts, yes, sir.
Mr. Cummings. Does it amount to millions of dollars?
Ms. Kephart. I actually don't know the answer. A few
million dollars, yes.
Most of our work actually is with State and local. We
provide the ABIS systems to many of the States that are
represented here today, are the criminal biometric systems.
Federal, we don't have much of a footprint. We do at DHS
recently. We did acquire a USCIS Live Scan for our biometrics,
yes.
Mr. Cummings. Okay. So you're telling me you got a couple
billion----
Ms. Kephart. But not with Customs and Border Protection,
who I----
Mr. Cummings. Ms. Kephart, I only have a few minutes. I
only have a minute.
Mr. DeSantis. Actually, your time has expired. So are you
going to----
Mr. Cummings. Well, I just want to have as much time as Mr.
Gowdy had. He had 7 minutes. May I have 1 more minute?
Mr. DeSantis. Well, we have a classified briefing in a few
minutes. I have at least one more witness--three more witnesses
on my side. So you made your point. I get it. We bring
contractors here all the time that do that.
So the gentleman's time has expired.
I recognize the chairman of the full committee for 5
minutes.
Chairman Chaffetz. It is my commitment to the ranking
member that we will work together to rectify this. I don't care
what side of the aisle, where you are in the political
spectrum, you do not come before the United States Congress and
fill out a very simple form and get it wrong. Okay? Ever.
Ms. Kephart. I apologize.
Chairman Chaffetz. And that may not cut it. I appreciate
the apologies, but that may not cut it. And I'll work with the
ranking member on that to follow up. There's no excuse for
that.
Ms. Burriesci, who do you report to?
Ms. Burriesci. I report to Assistant Secretary Seth
Stodder.
Chairman Chaffetz. And this report that we've been talking
about, how long has it been in process?
Ms. Burriesci. It has been in process for, I believe, over
a year. I don't have the exact timeframe, but it's over a year.
Chairman Chaffetz. And are you participant in finalizing
that report?
Ms. Burriesci. It has been months since I have seen that
report.
Chairman Chaffetz. Who is in charge of that report?
Ms. Burriesci. It is a CBP report.
Chairman Chaffetz. Give me a name. When I send the subpoena
that was suggested by the Democrats, who do I send it to? I'm
going to send it to the Secretary, but who is responsible for
this report?
Ms. Burriesci. Sir, I believe, if you want--that question,
I believe the Secretary of Homeland Security.
Chairman Chaffetz. Okay.
Let's move on. The entry/exit program, that's your
responsibility, right, in part? You're in charge of screening.
How is that coming along, the entry/exit program?
Ms. Burriesci. So, actually, we have a lot of good news on
the biometric entry/exit front. And we had the pleasure of
briefing your staff last week on those----
Chairman Chaffetz. I don't want to hear about staff
briefings last week. I'm asking you--it is currently law that
we're supposed to have an entry/exit program, correct?
Ms. Burriesci. Sir, we have exit operational at 10
airports--at 10 locations, sorry, today. We are----
Chairman Chaffetz. And there are how many airports overall?
Ms. Burriesci. There's hundreds of airports, sir.
Chairman Chaffetz. And so we have it at 10 of them. Okay.
Ms. Burriesci. I agree, it's not--I acknowledge it is not
nationwide, a biometric exit system, today. I acknowledge that.
Chairman Chaffetz. What percentage of the people leaving
the country are you able to capture?
Ms. Burriesci. I may have that with me, but I have to look.
I do not have that. I'm sorry, I do not have that statistic
with me.
Chairman Chaffetz. When will you give me that statistic?
Ms. Burriesci. I will try to get that to you within 24
hours if I can reach----
Chairman Chaffetz. Thank you.
Ms. Burriesci. --the CBP. Absolutely.
Chairman Chaffetz. What percentage of the people coming
into the country are fingerprinted?
Ms. Burriesci. I believe there are very few exceptions to
who would not----
Chairman Chaffetz. I think you said earlier all of them.
Ms. Burriesci. Everybody gets fingerprinted upon entry. I
think there are very few exceptions.
Chairman Chaffetz. Can you think of any exceptions?
Ms. Burriesci. For some diplomatic visas.
Chairman Chaffetz. What percentage----
Ms. Burriesci. And I believe there's one more, but I just
can't----
Chairman Chaffetz. What percentage of the land entrants,
people coming across on the land, what percentage of those
fingerprints are captured?
Ms. Burriesci. I can come back with that.
Chairman Chaffetz. You were so certain before. You said it
was all of them. So isn't the answer 100 percent or no?
Ms. Burriesci. There are a few exceptions. I know there are
diplomatic visas, and I believe there may be some exceptions
for certain Canadians. And that's why--I didn't intentionally--
--
Chairman Chaffetz. Yeah, but the problem is you are--how
long have you been in this role?
Ms. Burriesci. In my current role? Since 2012.
Chairman Chaffetz. I think we expect you to know this.
What about the seaports? If you come in on a cruise line,
what percentage of those people are fingerprinted coming back
in?
Ms. Burriesci. Sir, I know the policies and the processes.
I'm getting asked a lot of very specific stats. And it's not
that I don't want to share my stats. As soon as I can get back
to the Department and the systems, run them and we get them,
I'm happy to share any stats. I'm not trying to at all withhold
information.
Chairman Chaffetz. Do you know what percentage of the
passport chips work?
Ms. Burriesci. I didn't realize that they didn't work.
Chairman Chaffetz. Okay. So----
Ms. Burriesci. I'm sorry, I don't understand where you're--
--
Chairman Chaffetz. It's something like only 60 percent of
the time those passport chips actually do work. You're supposed
to be the expert on this. I mean, this should be just right off
the top of your head. You're coming before Congress, and I
recognize that you don't normally come and testify here, but
they've spent so much time briefing and making sure you get it
right. You should know that the passport chips don't work.
That's a big problem.
Ms. Burriesci. Sir, I spent ample time briefing and
learning and making sure off the top of my head I knew the Visa
Waiver Program and talked about all the security elements. I'm
getting a lot of statistical questions that I just don't have
with me. But, otherwise, I would absolutely share them with
you. And, as I've said, I'm happy to get them to you. I just
don't have them with me today.
Chairman Chaffetz. The questions that I just asked you,
what's a reasonable time for you to get that information?
Ms. Burriesci. I will get them--as soon as I have them, I
will share them.
Chairman Chaffetz. Okay. I yield back.
Mr. DeSantis. The gentleman's time has expired.
The chair now recognizes Mr. Hice for 5 minutes.
Mr. Hice. Thank you, Mr. Chairman.
Ms. Burriesci, I will just continue. What would it take for
a country to be removed from the Visa Waiver Program?
Ms. Burriesci. Well, we have a host of things that we can
do on a Visa Waiver Program that is not meeting standards, so
termination is kind of where we would see the last resort. That
doesn't actually help us----
Mr. Hice. Well, that's my question. What would be the last
resort? What would it take----
Ms. Burriesci. Termination would be the last resort. I
mean, that is where----
Mr. Hice. What would it take to be terminated?
Ms. Burriesci. --there are strong security concerns or
contradictory interests to the United States. That would lead
to termination.
Mr. Hice. All right. That's pretty vague. ``Strong security
concerns,'' what does that mean?
Ms. Burriesci. So when we're reviewing a VWP country, when
we go and do our reviews, and even through the continuous
monitoring that occurs outside of reviews, we're looking at
their counterterrorism standards, border security, law
enforcement, immigration, and document issuance standards.
So if any of those became a concern to the United States,
certainly a security concern, that would be one of the things
that are considered, among other measures.
Mr. Hice. If I'm hearing you correctly, then, if any one of
those issues that you just mentioned became a question for the
United States, that country would be terminated?
Ms. Burriesci. Well, there's a big scale of whether
something becomes a concern and whether it, you know, is of a
level----
Mr. Hice. Well, you just said, if any of these were a
concern, they would be removed. Is this not what you're saying
now?
Ms. Burriesci. Well, if something becomes a concern and--it
is in the interest of the United States to work with the
countries and raise the security standards. So we have other
measures besides termination. There's suspension, and there's
provisional status. And we also have the ability to lower ESTA
validity period, which is----
Mr. Hice. Okay. Well, let's move on. I have several
questions.
Has removal ever taken place? Has termination taken place?
Ms. Burriesci. Yes, sir.
Mr. Hice. How often?
Ms. Burriesci. We have done it twice since 2000.
Mr. Hice. Okay. So it's happened twice.
Is there a penalty for a country that fails to share
information regarding individuals who may pose a threat to the
United States?
Ms. Burriesci. We can take a host of actions on a country
that isn't sharing, but all the countries----
Mr. Hice. So there is a penalty.
Ms. Burriesci. Well, what I'm saying is there are lots of
things we can do, and I've named some of them. We can change an
ESTA period, we can put a country on provisional status, we can
suspend a country, or we can terminate a country.
Mr. Hice. Is that all subjective, or is there a process?
When do you know when that occurs?
Ms. Burriesci. DHS would never do something without the
consultation of State Department, as we do with all things for
the Visa Waiver Program. And if something were certainly to
rise to that level, we'd bring in our interagency partners, as
well, even outside of just the State Department.
Mr. Hice. Okay.
Let's see. I'm assuming that--well, let me ask you this.
What about these individuals who are being radicalized who have
not been to countries like Iraq or Syria? Is anything being
done to monitor that group?
Ms. Burriesci. Countries that have been?
Mr. Hice. Individuals who have been radicalized but they
have not gone to countries like Iraq or Syria, are these
individuals being monitored in any way?
Ms. Burriesci. I mean, certainly, if we are aware, the FBI
might have an investigation open on them. But, I mean, the
greatest concern and the thing, you know, that certainly keeps
me up at night is the individuals that we're not aware and that
is their mindset and----
Mr. Hice. So you don't know if they're being monitored or
not.
Ms. Burriesci. That I----
Mr. Hice. You don't know.
Ms. Burriesci. I don't know the answer to that.
Mr. Hice. Okay.
I'm assuming you don't know how many passports are reported
stolen each year. Is that correct?
Ms. Burriesci. I don't know how many are reported stolen
each year, but I know that----
Mr. Hice. Do you know what the procedure would be when a
passport is reported stolen? How do we make sure that that
stolen passport is not used fraudulently by another individual?
Ms. Burriesci. So for all manifest data that we receive, we
are--I'm sorry--for all travelers coming into the United
States, we are running that manifest data against the stolen
and lost travel document. Absolutely. And that includes
documentation--sorry--that includes records that the United
States puts in, VWP countries put in, and other countries.
Mr. Hice. Do you believe the other--well, it looks like my
time has expired.
Mr. DeSantis. The gentleman's time has expired.
We do have this briefing, but I want to give Mr. Carter the
last round. So we're going to recognize Mr. Carter for 5
minutes, and then we're going to recess because we do have to
go over to the California hearing.
Mr. Carter. Thank you, Mr. Chairman. I appreciate this.
And thank all of you for being here today.
Ms. Burriesci, let me ask you something. I'm still
concerned about this overstay. And one of your other panelists
has noted in her written remarks that ``the Visa Waiver Program
tourist overstay issue remains. The GAO tells us that 43
percent of VWP tourists make up the overstay population in the
U.S.''
So 43 percent of all the overstay population in the U.S.
comes from the Visa Waiver Program is what this is asserting.
Would you agree with that, yes or no?
Ms. Burriesci. No. As I stated----
Mr. Carter. Okay. Okay.
Ms. Burriesci. --earlier, it is around 2 percent.
Mr. Carter. No, but she's saying of all the overstay. So
that's inclusive of all the other programs, as well.
But you brought us a number of 2 percent. Now, can you tell
me what that number is? I mean, 2 percent of what?
Ms. Burriesci. I wasn't able to get all that while I was on
the phone.
Mr. Carter. Okay. So you don't know if it's 2 percent of a
million, 2 percent of 100,000?
Ms. Burriesci. I don't.
Mr. Carter. Okay. But can you get that for us?
Ms. Burriesci. I will take that question back.
Mr. Lynch. Will the gentleman yield?
Mr. Carter. I yield.
Mr. Lynch. The number is 20 million people per year. Two
percent comes out to 400,000 per year overstaying their visas
under the Visa Waiver Program.
Mr. Carter. Okay. And I'll reclaim my time.
Tell me, do you know what the average overstay is, what the
overage length of time the overstay is?
Ms. Burriesci. That's going to vary. Because even if it's 1
day, it's an overstay.
Mr. Carter. But an average----
Ms. Burriesci. I don't have that information.
Mr. Carter. Okay. Can you get me that information? In other
words, of all the overstay, that 2 percent of the--what was it?
400,000--of the 400,000, the average overstay is 3 months, is 6
months, is 9 months, whatever it is.
And then also I'd like to know the longest. I mean, have
you got somebody who's been on that list, that overstay list,
for 3 years or 5 years?
But, most importantly--and I hope you can answer this here
today; you should be able to--what are we doing about it? What
are we doing about those people who are on that overstay list?
Ms. Burriesci. So when you become an overstay, you have a
final removal order. And ICE, which is an agency, Immigration
and Customs Enforcement agency within--Citizenship, not
Customs--within DHS is responsible for removing those
individuals.
Mr. Carter. So you turn it over to ICE, and ICE goes and
looks for them?
Ms. Burriesci. Yes. ICE is the responsible agency to remove
overstays.
Mr. Carter. Okay. Can you tell me what ICE is doing about
it? Are they out looking for them right now as we speak?
Ms. Burriesci. Every single day.
Mr. Carter. Every single day they're out looking for this
person?
Ms. Burriesci. Every single day. Absolutely. And they are
prioritizing those that are national security and public safety
concerns first, because that's in the interest of the United
States.
Mr. Carter. Okay.
And let me ask you this. What can we do to help you? What
can we, as Congress, do to help you with this problem? Tell me.
Tell me what we can do.
Ms. Burriesci. I am sure ICE has a long list of ways that
you can help, and I'm sure they would be very encouraged to be
asked that question.
Mr. Carter. You know, I'm bothered that--``I just pass it
off to ICE. It ain't my problem anymore. It's their problem.''
Ms. Burriesci. No, I'm not trying to pass it off at all,
sir. I just don't want to--I want to give you a complete and
comprehensive answer. It is a great question. We thank you for
asking that question.
Mr. Carter. Okay.
All right. Let's shift gears here. Let's talk about ESTA,
the Electronic System for Travel Authorization. It's an
automated, web-based system used to determine an alien's
eligibility to travel without a visa in the United States for
tourism and business.
Is this the only place, in the United States, or do other
countries have this type of program? Are we the only ones with
this type of program?
Ms. Burriesci. It's a reciprocal program. So United States
citizens don't need a visa when we're traveling to VWP
countries, as well.
Mr. Carter. So it is a reciprocal program with the other 38
countries.
Ms. Burriesci. Yes.
Mr. Carter. So they have an ESTA, as well. And you can
fill----
Ms. Burriesci. I was going to say they might call it
something else, but yes.
Mr. Carter. But it's basically the same thing. And you can
fill that application out online, correct?
Ms. Burriesci. For some countries, yes.
Mr. Carter. So, once you're issued that ESTA, how long is
it good for?
Ms. Burriesci. It's typically good for 2 years.
Mr. Carter. Two years. Do you think that needs to be
tightened up?
Ms. Burriesci. So we have the ability to change the ESTA
validity period today, but the important thing to remember is
an ESTA is actually recurrently vetted. So, for the validity
period of 2 years, if anything changes, if someone ends up on
the terrorist watch list, for example, we know real time, and
we will revoke or deny that ESTA application.
Mr. Carter. I understand that, but 2 years is a long period
of time.
Ms. Burriesci. Well, a business or tourist visa is 10
years. And every 2 years, we're going to----
Mr. Carter. But two wrongs don't make a right. I mean, come
on now. Don't give me an answer saying, ``Well, this is even
worse.''
Ms. Burriesci. Well, I think the fact that we're
recurrently vetting is going to determine whether somebody--if
somebody becomes a national security concern, we get that
information in real time, and we're able to take an action on
it.
Mr. Carter. Okay. Mr. Chairman, I yield back.
Mr. DeSantis. The gentleman's time has expired.
The chair is going to recognize Mr. Lynch for 1 minute.
Mr. Lynch. All right. Thank you.
Ms. Burriesci, thank you very much. I know it's been a
difficult hearing for you.
Those four men to your right, the well-dressed gentlemen in
the front row, do they work for you?
Ms. Burriesci. Some of them.
Mr. Lynch. Okay.
Ms. Burriesci. Not all of them.
Mr. Lynch. Well, do you have a numbers guy? Because you
really needed your numbers guy today, or your numbers gal.
Ms. Burriesci. Well, I have the ESTA numbers, I have the
ESTA denial numbers, I have the----
Mr. Lynch. Well, wait a minute. You had a whole bunch of
numbers you didn't have, and we had to recess the hearing. So I
have a feeling you're going to be back before this committee
again. This issue is not going away. And I would just
recommend, next time I want to see you walk in arm-in-arm with
your numbers person.
Ms. Burriesci. I will have any list of stats for certain.
Mr. Lynch. Okay.
The other thing is this. I want to follow up on the
gentleman's previous question. Twenty million people a year, 2
percent overstay rate, 400,000 people overstaying their visa.
So, in addition to what the gentleman asked for, I would also
like the country of origin of where those people are coming
from and overstaying.
And is there a list, is there a list--you say they
prioritize, ICE prioritizes. Is there a list that we're
running? Because, you know, obviously, the problem should be
self-evident.
Thank you. I yield back.
Mr. DeSantis. And what we're going to do is we're going to
reduce all the questions that we've asked, that we want the
information, we're going to reduce that to writing. We're going
to send that to you soon. And then you guys can respond to that
in due time but, you know, not too long. It should be readily
apparent.
And then I am going to make the additional request that the
Department produce the file for the committee on Tashfeen
Malik. We would like to get that next week. We very well may be
back here next week, and that is very, very important for us to
see so that we can evaluate as we move into other phases of
oversight. When we're looking at our visa programs, we want to
make sure--I mean, clearly, we don't want a visa program that
allows somebody like her to come into this country.
So Chairman Chaffetz is recognized.
Chairman Chaffetz. Ms. Burriesci, these visa overstays, you
should have a list of every one of them, right, by individual
name?
Sorry, I need you to say it for the record. Do you have a
list of each of their names?
Ms. Burriesci. I personally don't, but the Department would
have a list of individuals with final removal orders who have
overstayed.
Chairman Chaffetz. So this is, in part, why we need a
entry/exit program, because you don't truly know if they've
left, correct? You only know if they've left if they've
traveled by airplane, correct?
Ms. Burriesci. We have a biographic exit system, but,
certainly, including biometrics on exit is an additional
certainty, yes.
Chairman Chaffetz. Where do you do that? What do you mean,
``biographical''? What does that mean?
If you fly into JFK, you travel around, go to New York, and
then you decide to go up to Toronto, are you telling me that
you're capturing the names of who's leaving? Where do you
actually capture the names of people that leave the country?
Ms. Burriesci. If it would help, we can provide something
written that actually lays out the process of what occurs----
Chairman Chaffetz. I think I understand the process.
Ms. Burriesci. --if that works.
Chairman Chaffetz. It does. I would appreciate that. We'll
add that to the list.
Is it fair to say that, most ports, you don't capture who
exits the country?
Ms. Burriesci. We get the manifest data, and we'll use
that, and we use our arrival/departure information system.
But----
Chairman Chaffetz. Do most people come into this country on
airplane, or do they come in by vehicle and car?
Ms. Burriesci. I believe----
Chairman Chaffetz. Or vehicle, cars, and walking?
Ms. Burriesci. I would anticipate it would be air, but I
don't know.
Chairman Chaffetz. Again, you're in charge of this stuff.
And so when will you get us that information?
Ms. Burriesci. I'm not in charge of the operations. But I
am in charge of working on the----
Chairman Chaffetz. You're in charge of screening. Your
title says ``screening'' in it.
So if they come in on a Visa Waiver Program by air and
depart not by air, what percentage of those people do you
capture?
Ms. Burriesci. So that is what I would say is one of the
gaps that we have acknowledged, if someone comes in by air and
leaves by land, yes.
Chairman Chaffetz. And there are literally hundreds of
thousands of people who may have come here legally but now
they're here illegally, correct?
Ms. Burriesci. I don't have that number with me, but----
Chairman Chaffetz. Is it hundreds of thousands of people?
Ms. Burriesci. I don't have that information with me.
Chairman Chaffetz. The answer is yes, correct? I mean, Mr.
Lynch laid it out there for you.
Ms. Burriesci. I recognize that I'm under oath, and I just
don't want to provide misinformation to you. It is not that I
don't want to provide information to you.
Chairman Chaffetz. So it's somewhere between hundreds of
thousands and potentially the low millions of people that came
here legally through the Visa Waiver Program, the topic that
we're discussing, and just decided they're not going to leave.
And you should have a list of those people, right? Do you
share any of that--who else gets that list? Who do you share
that list with?
Ms. Burriesci. That list is shared with--it's shared with
interagency partners, and it's shared across--yeah.
Chairman Chaffetz. Who do you share that list with?
Ms. Burriesci. I don't have the list with me.
Chairman Chaffetz. You're the Deputy Assistant Secretary
for Screening Coordination. And in your job description, of the
one paragraph on the Web site, you're supposed to be the one
that's coordinating with the other departments and agencies.
When you have somebody who's a visa overstay, do you
consider that a threat to the United States of America?
Ms. Burriesci. Sir, sometimes there are people who overstay
that are grandmas that come over to take care of their
grandchildren. I wouldn't call them a threat. I'm not saying
that they shouldn't abide by the terms of their admission
period, but calling them a threat is a totally different, you
know, circumstance.
Chairman Chaffetz. So you just assume that everybody that
comes here on this Visa Waiver Program is not a threat?
Ms. Burriesci. I didn't say that either. Anybody who comes
and overstays their period of admission here receives that
final removal order, and we go after them and prioritize them
based on national security and public safety first----
Chairman Chaffetz. When do they get----
Ms. Burriesci. --using the resources that we have.
Chairman Chaffetz. When do they get that removal order?
Ms. Burriesci. I mean, you know, if you're here for VWP and
it's 90 days, on the 91st day you're considered to be an
overstay.
Chairman Chaffetz. You said they give them the removal
order. Who gives them the removal order?
Ms. Burriesci. The removal order would come from ICE.
Chairman Chaffetz. And how many----
Ms. Burriesci. I can check on the timeframe.
Chairman Chaffetz. Will you also give us the list of how
many of those have been sent out?
Is it ICE's responsibility to then remove them?
Ms. Burriesci. Yes, sir.
Chairman Chaffetz. And we'll be inquiring as to how often
that happens.
I want to go back to the list. I've probably gone over my
time, but when you have somebody who has then overstayed their
visit, come here on the Visa Waiver Program, which law
enforcement entities do you share that with? Which databases
does that go into? Can you name one?
Ms. Burriesci. So we will have within DHS who has the final
removal orders. I believe it's shared with State and local, but
I don't want to say that with certainty right now. So, you
know, I will do my very best to get you the information that
the Department has on those questions.
Chairman Chaffetz. Who is the specific person that would
know? You report to? Sorry, you told me earlier. The person you
report to is?
Ms. Burriesci. Assistant Secretary Seth Stodder. I'm in the
Office of Policy.
Chairman Chaffetz. And that person reports to?
Ms. Burriesci. Assistant Secretary Alan Bersin.
Chairman Chaffetz. And that person reports to?
Ms. Burriesci. The Secretary of Homeland Security.
Chairman Chaffetz. Jeh Johnson.
Ms. Burriesci. Yes, sir.
Chairman Chaffetz. The request we sent was for Jeh Johnson,
and Jeh Johnson sent you as the expert on these topics. So, you
know, this is why I think we need help on both sides of the
aisle here. But Mr. Johnson, the Secretary himself, has got to
come answer these questions.
You strike me as a very nice person, but these are basic
questions about the functionality here. And when we're having a
congressional hearing, it is a waste of this committee's time
to send somebody who doesn't know the answers to very basic
questions.
And that's why we will continue to pursue very vigorous
oversight and look forward to robust discussions. You're
accelerating the need for us to have multiple hearings on this.
I yield back.
Mr. DeSantis. The chairman yields back.
And we are also anticipating the responses to all the
questions that have been asked and, obviously, anticipating
being able to review the file for Tashfeen Malik.
Mr. DeSantis. So I want to thank the witnesses.
The committee stands adjourned.
[Whereupon, at 1:17 p.m., the subcommittees were
adjourned.]
APPENDIX
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Material Submitted for the Hearing Record
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