Congressional Record, Volume 148 Issue 41 (Monday, April 15, 2002)

[Congressional Record Volume 148, Number 41 (Monday, April 15, 2002)]
[Senate]
[Pages S2643-S2659]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

ENHANCED BORDER SECURITY AND VISA ENTRY REFORM ACT OF 2001

The PRESIDING OFFICER. Under the previous order, the Senate will now
resume consideration of H.R. 3525, which the clerk will report by
title.
The legislative clerk read as follows:

A bill (H.R. 3526) to enhance the border security of the
United States, and for other purposes.

The PRESIDING OFFICER. Who yields time?
Mr. KENNEDY. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. KENNEDY. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KENNEDY. Mr. President, I spoke at some length on Friday, and I
will only take a few moments now. If there are Members who desire to
seek recognition to offer an amendment, I will yield the floor.
I just want to, as we come back to the discussion at the start of
this week, once again underline the importance of the legislation; but,
secondly, I want to mention the various groups that are in strong
support of it.
Again, I am enormously grateful to my friend and colleague, Senator
Feinstein, who spends a great deal of time on immigration issues, as do
Senators Kyl and Brownback. I commend all of them for their wonderful
work in helping develop this legislation. They all have spoken very
effectively on this legislation and have made a very strong case for
it.
I will mention again the various groups that are in strong support of
the legislation. It is always a fair indication of the breadth of
support.
First of all, we have the principal student organizations that deal
with international education. This is extraordinarily important because
one of the most complicated and difficult issues is trying to know,
when educational visas are given, whether the student comes to the
United States; and when they come and gain entrance, whether they
actually attend the college, whether they attend the classes,

[[Page S2644]]

whether they graduate. They can have those visas for a long period of
time, and it is very easy to lose complete track of them.
We have worked out a very effective and detailed way of making sure
the Immigration Service is going to know the whereabouts of those
students.
The Alliance for International Education and Culture Exchange says:

We have worked with your staffs as the legislation
developed and had opportunities for input to help ensure the
bill strikes the right balance between our strong national
interests and increased security and continued openness and
exchange of visitors, students and scholars from around the
world. We believe this legislation accomplishes this goal.

The National Association for International Educators has a similar
endorsement:

We have worked closely with your offices. While at the same
time maintaining openness to international students and
scholars, we also understand the national security issues.

That is enormously important. We are grateful for their strong
support. The Chamber of Commerce has indicated its strong support for
the legislation. The important reliance on biometrics, we had good
hearings on how we can benefit from the various breakthroughs taking
place in that area of science and research. We have worked very closely
with the biometric industry, and the International Biometric Industry
Association is strongly in support of the legislation.
Another group of supporters includes the broad group of organizations
that understand immigration law. The American Immigration Lawyers
Association, an organization which spends a great deal of time on
immigration and immigration law, has been a strong supporter, as well
as the various church groups, church world services, and civil rights
groups. Supporters include the Leadership Conference on Civil Rights,
the Council of La Raza, and the National Immigration Forum. So the
basic overall groups we rely on that work on the settlement of
refugees, work with immigrants and this settlement, work with various
families, all reviewed these various provisions. They understand what
we are attempting to do, and that is to maintain our historic role in
terms of the reunification of families.
We have important national security issues as well in trying to work
out that balance. These groups have been very supportive of what we
have done, which is, again, reassuring.
Finally, the most important compelling letter from the Families of
September 11. We had wonderful testimony from MaryEllen Salamone, who
is director of the Families of September 11, in support of this
legislation, very moving testimony. I commend those who have lost loved
ones who are channeling their grief into useful and productive and
constructive action, in this case, to try to make our country more
secure in terms of the dangers of terrorists. Her very strong testimony
and the support of the Families of September 11th is enormously
important.
I am sure there are ways that we could have done this more
effectively. We have the National Border Patrol Council that is
strongly supportive of the program as well.
We have tried to balance the various interests we have talked about:
One, making sure we are going to collect and have the appropriate
sharing of information about foreign terrorists--and we set up a very
important and up-to-date technology to be able to get to do that--
getting the intelligence about potential terrorists into the hands of
the Nation's gatekeepers in real time; it creates the layers of
security with multiple opportunities to stop someone intent on doing us
harm; it eliminates opportunities for terrorists to hide
behind fraudulent travel documents, which is so important; and it
determines how our Government might best work with the Governments of
Canada and Mexico to deter terrorists arriving in North America in the
first place and to manage our land borders in ways that deter the
dangerous passage of people and cargo while facilitating the lawful and
orderly passage of commerce and people who benefit our country.

This is what we have attempted to do. As I say, we welcome the
opportunity to consider the amendments or to go into greater discussion
of the particular provisions as the afternoon goes on. We invite our
colleagues who have amendments to offer them. We were ready on Friday
last to consider them. We spent some time in the afternoon in the
presentation. Those Members who had the opportunity to read through the
record will understand both the substance of this legislation and the
very broad and wide support. We are hopeful we can make progress
through the course of the afternoon.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. Mr. President, I see the Senator from West Virginia
in the Chamber. I know he would like to speak. Any time he stands up, I
will end my remarks and allow the Chair to recognize him.
I did want to add to the comments Senator Kennedy has made. I am very
pleased that Senators Kennedy, Brownback, Kyl, and I have joined in
authorizing this legislation. I am very proud that more than 60 of our
colleagues have joined in cosponsoring it. I had a chance on Friday,
along with the other Senators, to describe the legislation. I would
like to make a few comments now.
I sincerely believe, in the wake of September 11, this is the most
important bill this Senate can pass in terms of being able to begin to
fix what is a very broken system and also to begin to change our
priorities.
Our immigration policies have been in the past largely driven by our
humanitarian and economic interests. That has changed today because we
now realize that security of our borders is extraordinarily important
and that our visa system, as a product of many errors and many
instances in which it doesn't produce the dividends that it was
expected to produce for a lot of reasons, needs changing.
Before September 11, just over 300 U.S. Border Patrol agents were
assigned to the job of detecting and intercepting illegal border
crossers along our vast 4,000-mile United States-Canadian border. Nine
hundred State Department consular officers were assigned to conduct
background checks and issue visas to 6 million foreign nationals
seeking to enter the United States in a whole host of capacities--as
students, tourists, temporary workers, and as temporary visitors.
The State Department's policy was that consular officers did not have
to perform extensive background checks for students coming from such
terrorist-supporting states as Syria or Sudan. Only an intermediate
background check was required for Iranian students. More extensive
checks were required for students from Iraq and Libya.

Frontline agencies, such as the INS, were chronically understaffed,
used obsolete data management systems, and had substantial management
problems. We all knew that. Today, the INS does not have a reliable
tracking system to determine how many of our visitors legitimately
enter the United States and how many leave the country after their
visas expire.
It almost seems effortless, the way the terrorists got into this
country. They didn't have to slip into the country as stowaways on sea
vessels or sneak through the borders evading Federal authorities. Most,
if not all, appeared to have come in with temporary visas, which are
routinely granted to tourists, students, and other short-term visitors
to the United States.
Clearly, our guard was down. September 11 clearly pointed out other
shortcomings of the immigration and visa system. Just the sheer volume
of travelers to our country each year illustrates the need for an
efficiently run and technologically advanced immigration system. Most
people don't really realize how many people come into our country, how
little we know about them, and whether they leave when they are
required to leave.
Each year, we have over 300 million border crossings of individuals
from other countries. For the most part, these individuals are
legitimate visitors to our country. We currently have no way of
tracking all of them. We had 30.4 million nonimmigrants entering

[[Page S2645]]

the United States during one year, 1999. That is the most recent year
for which INS has statistics. Now, 23 million of them entered as
tourists on the visa waiver program--23 million from 28 different
countries. No visas, little scrutiny, no knowledge where they go in the
United States or whether they leave once their visas expire.
Another startling fact is that the INS estimates that over 100,000
blank passports have been stolen from government offices in
participating countries in the visa waiver program in recent years.
Now, why is that significant? Right now, countries that participate are
not required to report information on missing passports. That will
change under this bill. The number of passports reported stolen or lost
by visa waiver countries is not always entered into the lookout
database or entered in a timely manner. That, too, will change when
this legislation is enacted.
Abuse of the visa waiver program poses threats to U.S. security and
increases illegal immigration. These visas are often sold on the black
market for as much as $7,500 per visa. Passports from visa waiver
countries are often the document of choice for terrorists.
Consider this: Ahmed Ressam, the Algerian convicted of plotting to
blow up the Los Angeles International Airport in 1999, trafficked in a
number of these false passports, at least one of which was linked to a
theft from a townhall in Belgium, a visa waiver country. In addition,
two members of an al-Qaida cell who assassinated the Northern Alliance
leader Ahmed Shah Massoud just before September 11 traveled from
Brussels to London to Karachi on stolen Belgian passports. Mr. Robert
Reid--the shoe bomber--had a visa from the United Kingdom, another visa
waiver country. These are some of the problems our bill seeks to stop
in the visa waiver program.
Each year, more than a half million foreign nationals enter with
student visas. Most recently, 660,000 foreign students entered in the
fall of 2001. That is just last fall. Within the last 10 years, 16,000
have come from such terrorist-supporting States as Iran, Iraq, Sudan,
Libya, and Syria.

The foreign student visa system is one of the most underregulated
systems we have today. We have seen bribes, bureaucracy, and many
problems with this system that leave it wide open to abuse by
terrorists and other criminals. For example, in the early and mid
1990s, in my own State of California, in the San Diego area, 5
officials at 4 California colleges were convicted of taking bribes,
providing counterfeit education documents, and fraudulently applying
for more than 100 foreign student visas. These are university officials
in that area who practiced fraud and said students were there when they
were not, and they falsified grades. They were convicted for doing so.
However, it is unclear what steps the Immigration and Naturalization
Service took to find and deport the foreign nationals involved in that
scheme. It has been all too clear to those of us on the committee--
Senators Kennedy and Brownback on Immigration, and Senator Kyl and I on
the Technology and Terrorist Subcommittee--that without an adequate
tracking system, our country becomes a sieve, which is what it is
today, creating ample opportunities for terrorists to enter and
establish their operations without detection.
Consider these facts:
On May 28, 2001--last May--11 months ago, a criminal warrant was
issued for Mohamed Atta's arrest in Broward County, FL, after he failed
to appear in court for a traffic violation. On July 5, Atta was pulled
over for speeding in Palm Beach, FL. At that time, the officer
conducted a criminal search on Atta and found no outstanding warrants.
After a trip to Spain, in which he allegedly met with coconspirators,
Atta entered the United States for the final time--that was on July
19--despite past illegal incidents and the fact that his name was on a
terrorist watch list. Instead, Atta was allowed into the United States
as a nonimmigrant visitor after informing an INS officer that he had
applied for a student visa.
One of the hijackers entered on a student visa and, though he never
showed up for classes, was never reported because the INS stopped
taking such reports in 1988. In other words, the INS doesn't even take
reports if you don't show up for class when you come in on a foreign
student visa.
In December 1999, Ahmed Ressam, otherwise known as the ``millennium
bomber,'' crossed the northern border into the United States with the
intent to bomb Los Angeles International Airport. He presented a
legitimate Canadian passport under the name Benny Norris, and a
computer check of Norris showed no reason to detain him.
However, had they checked the name Ahmed Ressam, they would have
found that Ressam had been arrested four times in Canada, had a pending
warrant for deportation, and was being investigated by the French and
Canadian Governments for being a terrorist. It was only because a U.S.
Customs agent in Port Angeles, WA, voiced suspicions about his
demeanor, causing Ressam to flee on foot, that Ressam was then
arrested.
This man had an extensive criminal record and terrorist ties. Yet
there was no data system to supply the Border Patrol with such crucial
information.
Clearly, existing technologies that employed biometric identifiers
could have been used to uncover Ressam's criminal background even
though he had used a false name. We do this in our bill.

We must make it more difficult for foreign visitors to enter our
country using false identification and take sufficient steps to combat
and prevent identification and visa fraud.
The world might well be in an electronic age, but agencies such as
the INS are still struggling with the paper-bound, bureaucratic system.
Even in instances where technological leaps have been made, like the
issuance of more than 4.5 million smart border crossing cards with
biometric data, the technology is still not being used. In other words,
we appropriated the money, 4.5 million of these technologically
superior cards were issued, but INS never put in the laser reading
systems.
According to the Department of Justice inspector general, INS has
approximately 100 different automated information systems for each
function of the agency. Few of these systems talk to each other. This
is a stark reminder of how much work needs to be done to fix our broken
immigration system.
By now, we are all aware of the various proposals that have emerged
to restructure or dismantle the INS. While restructuring the INS is
certainly an idea worth examining, the most immediate need today is for
Congress to enact this legislation because restructuring it is not
going to cure any of the problems we address in this legislation.
Restructuring it does not provide additional inspectors, does not
provide additional border patrol, does not provide for an interoperable
database system, does not provide for visa waiver reform, does not
provide for student visa oversight monitoring and tracking.
Our bill would do just these things. It attempts to transform
agencies, such as the INS, from a paper-driven bureaucracy to one that
better manages its mission by upgraded information management and
sharing systems. It would enable the INS and consular offices to access
vital intelligence information in real time before they issue visas and
permit entry to the United States.
The INS has often argued that it did not have sufficient intelligence
to prevent the terrorists from entering the United States. However,
this failure of intelligence information does not explain why the INS
would admit at least three terrorists who clearly were inadmissible at
the time they were permitted to enter the country.
Last year, in the subcommittee that I chair and on which Senator Kyl
is the ranking member, we heard the testimony of Assistant Secretary of
State for Consular Affairs, Mary Ryan. She testified that the consular
staff felt terrible because they had granted visas to some of the 19
terrorists. At least three of the hijackers, including Mohamed Atta,
the alleged ringleader, had stayed in the United States longer than
authorized on their previous visits, making their visas invalid.
Because the consular officers had no information on these individuals,
they had no reason at the time to deny the visas.
If the INS had a system in place to identify visa overstayers, this
might have enabled both the State Department to further investigate the
backgrounds of the terrorists and the INS

[[Page S2646]]

inspectors to enforce the law by stopping these terrorists before they
entered the country.
The INS should have had the information at their disposal. They
either did not collect the information or they did not have the means
for the INS inspectors on the front lines to access it.
In the wake of September 11, we know the chances of another terrorist
attack are great, and we know it is unconscionable for our systems to
allow entry of another terrorist into the United States. Unless we move
on this bill, we cannot possibly remedy the faults in our system.
The legislation would require the Attorney General and the Secretary
of State to issue machine readable, tamper resistant visas that use
standardized biometric identifiers. This in itself is a big
improvement. I myself have visited streets where in a half hour, one
can buy a green card that certainly no layperson can tell the
difference between a forged green card produced on this street in Los
Angeles and a real green card.
Our bill allows INS inspectors at ports of entry to determine whether
a visa properly identifies a visa holder and, thus, combats identity
fraud.
Second, it will make visas harder to counterfeit.
Third, in conjunction with the installation of scanners at all ports
of entries to read the visas, the INS can track the arrival and
departure of aliens and more reliably identify aliens who overstay
their visas.
The bill also provides that aliens from countries that sponsor
international terrorism cannot receive nonimmigrant visas unless the
Attorney General and the Secretary of State determine that they do not
pose a threat to the safety of Americans or the national security of
our country.
American embassies and consulates abroad will be required to
establish terrorist lookout committees that meet monthly to ensure that
the names of known terrorists are routinely and consistently brought to
the attention of consular officials, our Nation's first line of
defense.
The bill contains a number of other related provisions as well, but
the gist of the legislation is this: Where we can provide law
enforcement, more information about potentially dangerous foreign
nationals, we do so. Where we can reform our border crossing system to
weed out or deter terrorists and others who would do us harm, we do so.
And where we can update technology to meet the demands of the modern
war against terror, we do that as well.
As we prepare to modify our immigration system, we must be sure to
enact changes that are realistic and feasible. We must also provide the
necessary tools to implement them.
The legislation Senators Kennedy, Brownback, Kyl, and I have crafted
is an important and strong first step, but this is only the beginning
of a long, difficult process.
As the Senator from West Virginia has pointed out, this legislation
is only as good as the appropriations that follow forthwith. The annual
cost is about $1.1 billion. The 3-year cost is about $3.5 billion. This
leaves for this year about $753 million that we will have to come up
with to meet the cost of the first year. My understanding is that this
money is available in unallocated dollars, but that, of course, has to
be checked out, or we should take it from another source.
I guess the biggest assurance I can give, as a lowly appropriator, to
the distinguished powerful chairman of the Appropriations Committee, is
I will do my level best to lobby my colleagues to produce the money
and, with whatever influence I probably do not have with the
administration, try to influence the administration, as well, because I
truly believe if we are to protect our people, this bill is a
prerequisite. Unless we tighten up our loopholes and provide the
funding for the technology we need, we are going to be nowhere. That is
not to say that a terrorist still cannot come in, but it is to say we
can make it very much more difficult for them.
So I conclude by saying that for some time many of us have been
calling for reforms of our visa and border security system. We should
have acted in 1993. We did not, and that left us vulnerable to the
events of September 11. We are now in a position where we are reacting
to this latest tragedy, and I think it is really important we act now
to get this legislation on the books. Then it is up to each and every
one of us to do everything we possibly can to see that it is funded
promptly and, more importantly, for the Immigration Subcommittee to
really exercise oversight over the INS and oversight over the Consular
Affairs Division of the State Department to see that the necessary
reforms do get put in place with respect to the visa system.
There is not much else I can say, but I ask unanimous consent to have
printed in the Record, without going through it again because I went
through it on Friday, a summary of the bill and also some critical
statistics on the number of people coming into our country, and
particularly the specific status under which they come and the
loopholes that exist.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Enhanced Border Security and Visa Entry Reform Act of 2001--Facts and
Statistics

foreign-born in the united states

An estimated 30 million foreign-born residents lived in the
U.S. in 2000.
Between 8 and 9 million are residents without legal status
(i.e., either they entered illegally or overstayed a
temporary visa)--40 percent of that total were visa
overstays.
30.4 million nonimmigrants entered the U.S. during 1999
(the most recent year for which the INS has statistics)--23
million of them entered as tourists on the Visa Waiver
Program (according to State Department statistics); 6 million
of them were issued nonimmigrant visas as students, tourists,
temporary workers and other temporary visitors (only 900
State Department consular officers, mostly junior staff, are
assigned to issue these visas and conduct background checks);
and 660,000 were foreign students who had entered in Fall
2001.

Foreign students

660,000 foreign nationals held student visas in Fall 2001--
more than 10,000 enrolled in flight training, trade schools
and other non-academic programs; and more than 16,000 came
from terrorist supporting countries.
Some 74,000 U.S. schools are allowed to admit foreign
students, but checks of the schools on the current INS list
found that some had closed; others had never existed.
Exactly six months after the 9/11 attacks, Huffman Aviation
in Venice, Fla. received student visa approval forms for
Mohamed Atta and Marwan Al-Shehhi. The men were aboard
separate hijacked planes that struck the World Trade Center
towers, killing thousands.

visa waiver program

23 million foreign visitors enter the U.S. each year under
the Visa Waiver Program.
There are now 28 countries that are included in the
program.
Earlier this year, Argentina was dropped from the program
because of the country's political and economic instability.

Current Inspections System

Because visitors traveling to the U.S. under the Visa
Waiver Program do not need a visa to enter the U.S., INS
inspectors at U.S. ports of entry are the principle means of
preventing unlawful entry of individuals from one of the 28
countries.
The primary tool available to INS inspectors during the
inspections process is the Interagency Border Inspection
System, known as IBIS, which allows INS inspectors to search
a variety of databases containing records and lookouts of
individuals of particular concern to the U.S.
A 1999 Office of the Inspector General (OIG) report found,
however, that INS inspectors at U.S. ports of entry were not
consistently checking passport numbers in IBIS.
INS officers also failed to enter lost or stolen passports
from visa waiver countries into IBIS in a timely, accurate or
consistent manner.
One senior INS official from Miami International Airport
told the OIG that he was not even aware of any INS policy
that required the entry of stolen passport numbers.

Anti-fraud enforcement

In a report released in February 2002, the U.S. General
Accounting Office said that anti-fraud efforts at the INS are
``fragmented and unfocused'' and that enforcement of
immigration laws remains a low priority.
The report found that the agency had only 40 jobs for
detecting fraud in 4 million applications for immigrant
benefits in the year 2000.

national security

In FY 1999, the Department of State identified 291
potential nonimmigrants as inadmissible for security or
terrorist concerns.
Of that number, 101 aliens seeking nonimmigrant visas were
specifically identified for terrorists activities, but 35 of
them were able to overcome the ineligibility.
47 foreign-born individuals--including the 19 September
11th hijackers--have been charged, pled guilty or convicted
of involvement in terrorism on U.S. soil in the last 10
years.
41 of the 47 had been approved for a visa by an American
consulate overseas at some point. Thus, how we process visas
is critically important.

[[Page S2647]]

Only 3 entered without inspection (illegally) into the
United States and thereby avoided contact with an immigration
inspector at a point of entry.
This means that 44 of the 47 had contact with an inspector
at a point of entry.
Of the 47 terrorists, at least 13 had overstayed a
temporary visa at some point prior to taking part in
terrorist activity, including September 11th ring leader
Mohamed. Therefore, tracking visa overstays is therefore a
very important part of terrorism prevention.
The terrorists who entered on student visas took part in
the first attack on the Trade Center in 1993, the bombing of
U.S. embassy in Africa in 1998, and the attacks of September
11th. Therefore, how we process and track foreign students is
clearly important.
Some reports indicate that Khalid Al Midhar, who probably
flew American Airlines flight 77 into the Pentagon, was
identified as a terrorist by the CIA in January 2001, but his
name was not given to the watch list until August 2001.
Unfortunately, he had already reentered the United States
in July 2001. (I should point out that there is some debate
about exactly when the CIA identified him as a terrorist).
But, if it really did take the CIA several months to put
his name on the list as PBS' Frontline has reported, then
that is a serious problem because we might have stopped him
from entering the country had they shared this information
sooner. This speaks to the issue of sharing information
between federal agencies.

Absconders/detainees

In December 2001, INS estimated that 314,000 foreigners who
have been ordered deported are at large.
More recent estimates released in March 2002 suggest that
there may be at least 425,000 such absconders.
At least 6,000 were identified as coming from countries
considered Al Qaeda strongholds.

border agency statistics

There are 1,800 inspectors at ports of entry along U.S.
borders.
The Customers Service has 3,000 inspectors to check the 1.4
million people and 360,000 vehicles that cross the border
daily.
The 2,000-mile long Mexican border has 33 ports of entry
and 9,106 Border Patrol agents to guard them all.
In October 2001, there were 334 Border Patrol agents
assigned to the nearly 4,000-mile long northern border
between the U.S. and Canada. This number of agents cannot
cover all shifts 24 hours a day, 7 days a week, leaving some
sections of the border open without coverage: The Office of
the Inspector General found that one northern border sector
had identified 65 smuggling corridors along the 300 miles of
border within its area of responsibility; and INS
intelligence officers have admitted that criminals along the
northern border monitor the Border Patrol's radio
communications and observe their actions and this enables
them to know the times when the fewest agents are on duty and
plan illegal actions accordingly.
350 million foreign nationals enter the U.S. each year.
The INS estimates that approximately 40 to 50 percent of
the illegal alien population entered the U.S. legally as
temporary visitors but simply failed to depart when required.
An estimated 40 percent of nonimmigrants overstay their
visas each year. 9 million illegal and 4 million visa
overstayers.
____

The Enhanced Border Security and Visa Entry Reform Act--Summary

The legislation would:
Create interoperable data system.--The Administration would
be required to develop and implement an interoperable law
enforcement and intelligence data system by October 26, 2003
to provide the INS and State Department immediate access to
relevant law enforcement and intelligence information.
The database would be accessible to foreign service
officers issuing visas, federal agents determining the
admissibility of aliens to the U.S. and law enforcement
officers investigating and identifying aliens. The bill also
prevents and protects against the misuse of such data.
Reform the visa waiver program.--The bill would require
that each country participating in the visa waiver program
issue tamper-resistant, machine-readable biometric passports
to its nationals by 2003.
Require the reporting of lost or stolen passports.--The INS
would be required to enter stolen or lost passport numbers
into the interoperable data system within 72 hours of
notification of loss or theft. And until that system is
established, the INS must enter that information into an
existing data system.
Require new requirements for passenger manifests.--All
commercial flights and vessels coming to the U.S. from
international ports must provide manifest information about
each passenger, crew member, and other occupant prior to
arrival. This section of the bill also eliminates the 45-
minute deadline to clear arriving passengers.
Require new travel document measures.--Requires all visas,
passports, and other travel documents to be fraud and tamper-
resistant and contain biometric data by October 26, 2003.
Increase scrutiny of nonimmigrants from certain
countries.--Prohibits the issuance of nonimmigrant visas to
nationals from countries designated as state sponsors of
international terrorism, unless the Secretary of State, after
consulting with the Attorney General and the heads of other
appropriate agencies, determines that the individuals pose no
safety or security threat to the United States.
Institute student visa reforms.--Reforms the student visa
process by:
Requiring the Attorney General to notify schools of the
students entry and requiring the schools to notify the INS if
a student has not reported to school within 30 days at the
beginning of an academic term. The monitoring program does
not, at present, collect such critical information as the
student's date of entry, port of entry, date of school
enrollment, date the student leaves school (e.g., graduates,
quits), and the degree program or field of study. That and
other significant information will not be collected.
Requiring the INS, in consultation with the State
Department, to monitor the various steps involved in
admitting foreign students and to notify the school of the
student's entry. It also requires the school to notify INS if
a student has not reported for school no more than 30 days
after the deadline for registering for classes.
Requiring the INS to conduct a periodic review of
educational institutions to monitor their compliance with
record-keeping and reporting requirements. If an institution
or programs fails to comply, their authorization to accept
foreign students may be revoked.
While the INS is currently responsible for reviewing the
compliance of educational institutions, such reviews have not
been done consistently in recent years and some schools are
not diligent in their record-keeping and reporting
responsibilities.
Increase more border personnel. This section authorizes an
increase of at least 1,000 INS inspectors, 1,000 INS
investigative personnel, 1,000 Customs Service inspectors,
and additional associated support staff in each of the fiscal
years 2002 through 2006 to be employed at either the northern
or southern border.
Increase INS pay and staffing. To help INS retain border
patrol officers and inspectors, this section would raise
their pay grade and permit the hiring of additional support
staff.
Enhance Border patrol and customs training. To enhance our
ability to identify and intercept would-be terrorists at the
border, funds are provided for the regular training of border
patrol, customs agents, and INS inspectors. In addition,
funds are provided to agencies staffing U.S. ports of entry
for continuing cross-training, to fully train inspectors in
using lookout databases and monitoring passenger traffic
patterns, and to expand the Carrier Consultant Program.
Improve State Department information and training. This
section authorized funding to improve the security features
of the Department of State's screening of visa applicants.
Improved security features include: better coordination of
international intelligence information; additional staff; and
continuous training of consular officers.

why is this immigration reform necessary?

Six months to the day after Mohamed Atta and Marwan Al-
Shehhi flew planes into the World Trade Center, the
Immigration and Naturalization Service notified a Venice,
Florida, flight school that the two men had been approved for
student visas.
One week later, the INS discovered that four Pakistani
crewmen, four Pakistani nationals were reported missing after
an INS inspector had inappropriately allowed them to take
shore leave after a ship docked in the Norfork, Virginia
harbor.
On November 30, Senators Feinstein, Kennedy, Browback and
Kyl introduced this bill to make sure these missteps do not
happen again. This bill would help prevent terrorists from
entering the United States by exploiting the loopholes in our
immigration system.
The House passed this bill by voice vote on December 19,
2001 and again on March 12, 2002. It is now time for the
Senate to act.

Facts to consider

As many as 3.5 to 4 million tourists, students and others
legally entered the U.S. with visas, but later became illegal
immigrants by remaining in the country long after their visas
expire. The INS has acknowledged that the agency has no idea
where they are.
Each year, we have 350 million border crossings. For the
most part, these individuals are legitimate visitors to our
country. We currently have no way of tracking all of these
visitors.
47 foreign-born individuals--including the 19 September
11th hijackers--have been charged, plead guilty or convicted
of involvement in terrorism on U.S. soil in the last 10
years.
41 of the 47 had been approved for a visa by an American
consulate overseas at some point. Thus, how we process visas
is critically important.

Other serious problems that have come to light

Foreign Students

Each year, more than 500,000 foreign nationals enter the
U.S. with foreign student visas.
Within the last ten years, 16,000 came from such terrorist
supporting states as Iran, Iraq, Sudan, Libya and Syria.
The foreign student visa program is severely under-
regulated. During the 2000-2001 academic year, 3,761 foreign
nationals from terrorist supporting countries were admitted
into the U.S. on student visas.
Before September 11th, the State Department did not perform
extensive background

[[Page S2648]]

checks for students coming from Syria or Sudan. An
intermediate background check is required for Iranian
students and more extensive checks are required for students
from Iraq and Libya.
Last year, the National Commission on Terrorism warned,
``Of the large number of foreign students who come to this
country to study, there is a risk that a small minority may
exploit their student status to support terrorist activity.''
The problem is that the INS has no idea whether the
students are registered at the schools that sponsored them or
how many are in the United States today with expired visas.
Nor can the INS provide information on the number or the
type of institutions who are eligible to accept foreign
students into their academic programs. This type of
information is essential to INS and the Congress' ability to
exercise effective oversight over the visa program.

Foreign Student Visa Fraud

In the early 1990s for example, five officials at four
California colleges, were convicted of taking bribes,
providing counterfeit education documents and fraudulently
applying for more than 100 foreign student visas.
When asked what steps the INS took to ensure that the
college would comply with the terms of the program in the
future, INS staff said no steps were taken. When asked about
the fate of the 100 foreign nationals who fraudulently
obtained foreign student visas, the INS had no idea.

Visa Waiver

The Visa Waiver Program was designed to enable citizens
from 29 participating countries to travel to the U.S. without
having to first obtain visas for entry. Earlier this year,
Argentina was dropped from the program, so now there are 28
participating countries.
An estimated 23 million visitors enter the U.S. under this
program. This program has been subject to abuse and has, at
times, facilitated illegal entry because it eliminates the
need for visitors to obtain U.S. visas and allows them to
avoid the pre-screening that consular officers normally
perform on visa applicants.
As a result, checks by INS inspectors at U.S. ports of
entry become the chief and sometimes only means of preventing
illegal entry; INS inspectors have, on average, less than one
minute to check and decide on each visitor.
The INS has also estimated that over 100,000 blank
passports have been stolen from government offices in
participating countries in recent years.
Abuse of the Visa Waiver program poses threats to U.S.
national security and increases illegal immigration. For
example, one of the co-conspirators in the World Trade Center
bombing of 1993 deliberately chose to use a fraudulent
Swedish passport to attempt entry into the U.S. because of
Sweden's participation in the visa waiver program.

Information Sharing Among Federal Agencies

In a Judiciary Subcommittee hearing I held in September,
Mary Ryan, the Assistant Secretary of State for Consular
Affairs, said that the lack of information sharing is a
``colossal intelligence failure'' and that the State
Department ``had no information on the terrorists from law
enforcement.''
Right now, our government agencies use different systems,
with different information and different formats, and they
often refuse to share that information with other agencies
within our government. This clearly, in view of September
11th, is no longer acceptable.
I am amazed that a person can apply for a visa and there is
no mechanism by which the FBI or CIA can enter a code into
the system to raise a red flag on individuals known to have
links to terrorist groups and pose a national threat.
In the Wake of September 11th, it is hard for me to fathom
how a terrorist might be permitted to enter the U.S. because
our government agencies aren't sharing information.
I am also concerned about the current structure of
information technology. An assessment made of the INS
management and investment of information technology by the
Department of Justice Inspector General revealed the INS
cannot ensure that the money it spends each year on
information technology will be able to support the service
and enforcement functions of the agency.
Nor is the agency's information adequately protected from
unauthorized access or service disruption. Moreover, the INS
currently uses to many different data bases, many of which do
not communicate with each other.
All these problems point to the dramatic need for change.

What the ``Enhanced Border Security and Visa Entry Reform Act'' does

This bill protects our nation's openness to newcomers while
at the same time adds some prudent steps to our immigration
policy to ensure that Americans are safe at home.
The bill's major provisions would:
Require the administration to create a computerized
database system giving INS and the State Department, which
issues visas, immediate access to law enforcement and
intelligence service information. One of the 19 hijackers,
Khalid Almidhar, may have appeared on a CIA watch list--well
before he entered the country--that information was not
shared with the INS.
Require U.S. universities and other educational
institutions to notify the INS if a foreign student has not
reported to school within 30 days of the start of the
academic term. Two of the 19 highjackers came to the United
States on student visas yet never showed up for class.
Tighten reporting requirements for the 500,000 people
admitted annually on student visas.
Force airlines and shipping companies to provide passenger
and crew manifests for every fight and ship originating at
international ports before they arrive in the United States.
Require the 28 countries taking part in the Visa Waiver
Program, which permits certain of their citizens to travel
here for up to 90 days without first obtaining visas, to
issue tamper-resistant biometric passports by 2003.
Prohibit the issuance of visas to nationals from countries
designated as state sponsors of international terrorism
unless they are carefully vetted and determined to pose no
security threat to the United States. Such countries
currently include Iraq, Iran, Syria. Libya, Cuba, North Korea
and Sudan.
Even if we pass this legislation, it is still possible for
a terrorist to sneak into this country and inflict serious
harm. But, if we pass this important legislation, we can at
least reduce substantially the probability that terrorists
such as those who came here prior to September 11th will ever
be able to launch that type of attack again.

Mr. BYRD. Will the Senator yield?
Mrs. FEINSTEIN. I certainly will yield to the Senator from West
Virginia.
Mr. BYRD. That is an important question. It is one of the questions I
wanted to raise. Where is the money? Is the President asking for the
money in his budget? Did he ask for it in his supplemental request?
Where is the money? Is his administration going to support the
appropriations for this legislation?
This is one of the areas that I had difficulty with last December
when I was importuned by the many Senators on both sides of the aisle
to give unanimous consent that we take this bill up without any debate,
without any amendments, and pass it.
One of the questions I wanted to ask was, What about the funding?
Mrs. FEINSTEIN. May I respond, as best I can?
Mr. BYRD. If the Senator would allow me to finish my question.
Mrs. FEINSTEIN. All right.
Mr. BYRD. I thank the Senator for yielding.
So it is one thing to advocate the passage of an authorization bill,
and I very much want to support this legislation. I am not against this
legislation, and I will vote for it, depending upon what it looks like
when we get ready to pass it. But as an appropriator, as the chairman
of the Appropriations Committee in the Senate, I think I need to ask
about the funding. What assurances do we have that this money is going
to be forthcoming? Is it budgeted? Is the administration supporting the
bill? Is the administration going to support the monies for it? Are all
the Senators who are advocating this legislation going to support the
request for appropriations? Now if the Senator would answer.
Mrs. FEINSTEIN. I will take a crack at it, if I may.
Mr. BYRD. All right.
Mrs. FEINSTEIN. It is my understanding, certainly Senator Kyl,
Senator Brownback, and I, along with the Republicans with whom the
Senator was concerned at our subcommittee meeting, will support the
appropriation. It is my understanding that roughly $743 million of this
amount is covered in the administration's fiscal year 2003 budget
request. Therefore, the amount not covered is $440 million.
It is also my understanding the administration has allocated all but
$327 million of the $10 billion that was previously allocated for
homeland security in last year's emergency supplemental. I, for one,
would certainly support my chairman on the Appropriations Committee to
take whatever is required from the unspecified $10 billion additional
fund in the defense budget that was put in by the President. I think as
part of defense, homeland defense is the most vital part of it, and
this certainly provides for that.

So I hope that is at least a partial answer to the Senator's
question.
Mr. BYRD. The distinguished Senator is certainly trying. She is
making the effort, but there are many other Senators who have ideas
with respect to that $10 billion. People on the Armed Services
Committee certainly have ideas as to the $10 billion, and the
appropriators, including Senator

[[Page S2649]]

Inouye and Senator Stevens, who are the chairman and ranking member of
the Appropriations Subcommittee on Defense, have ideas. So there are
all kinds of ideas around as to funding.
The Senator has mentioned some figures. I would like to be shown that
the Senator is correct in her figures. I have some serious questions
about funding of this bill, and they need to be answered. This is one
reason I thought we ought to have a little debate about it.
I thank the Senator for yielding.
Mrs. FEINSTEIN. I thank the chairman of the Appropriations Committee,
the distinguished Senator from West Virginia, for his inquiry.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. BYRD. Mr. President, again I compliment the distinguished Senator
from California. Her heart is in the right place. She is trying to do
the right thing, and I admire her for all of those things. Money is a
problem, even for the best of things.
Recognizing the need for improved border security, I included nearly
$1.1 billion for border security in my $15 billion homeland defense
amendment last November. Within that total, I included over $725
million that the President did not request for the Immigration and
Naturalization Service. That amendment to the Defense bill was defeated
in the Senate when we could not get the 60 votes required to meet a 60-
vote point of order.
I tried again on the Defense supplemental appropriations bill that
the Senate considered in December. I included $335 million above the
President's request for the INS for improvements in border security,
particularly along the northern border. Once again, the funding was
rejected when a 60-vote point of order was raised and we could not get
the 60 votes.
Finally, in the conference on the Defense supplemental appropriations
bill, we provided $150 million more than the President's request.
Now, as the border security bill pending before us proves, there
continues to be a need for significant infusion of resources to staff,
to train and to equip the Immigration and Naturalization Service to do
its job on our Nation's borders. Sadly, in the $28.6 billion
supplemental that the President requested just a few days ago, on March
21, he includes only $35 million for the INS.
I ask the question--perhaps it is a rhetorical question--how much is
required of the INS in this bill? How much money does the INS need to
meet the requirements of this bill? The President requested a $28.6
billion supplemental just a few day ago, on March 21, and he included
only $35 million for the INS. Where is the money coming from to meet
the requirements that will be placed on the INS by this bill?
I am not being critical of the bill. I want to know the answer. I
want the bill to work. That is why I said I wasn't going to agree to
the unanimous consent request last December to take up the bill and
pass it in the bat of an eye, without any debate, without any questions
asked.
I am here today. I want to improve this bill. I want to vote for it,
but what are the answers to these questions? How much money is being
appropriated to the INS if it is to meet the requirements of the
pending bill? How much is it going to cost the INS? The President
requested, again, $28.6 billion in a supplemental, not yet a month ago,
March 21; it will be 1 month ago this coming Sunday. He asked for $28.6
billion, but he included only $35 million for the INS.
The request is particularly weak for providing the resources to
construct border facilities and to equip border personnel and to
provide the technology and the computer system necessary for the INS to
effectively work with other Federal agencies.
I ask that question. If one of the authors to the pending bill can
answer that question, I would like to know.
The PRESIDING OFFICER (Mrs. Feinstein). The Senator from
Massachusetts.
Mr. KENNEDY. Madam President, Senator Byrd asked an important
question about the payment for these measures. As I understand,
following what my friend and colleague from California, Senator
Feinstein, has made available, I am happy to reference to the chairman
of the Appropriations Committee, but he obviously has this information.
It has designated $5 billion; that is what the INS budget is, $5
billion. In that is the entry exit, which is basically what we are
talking about, $380 million; computer infrastructure is the
downpayment, $83 million; the land border inspectors, $34 million; air/
sea inspectors, $51 million; border construction, $145 million;
Retention, $743 million. This is not all of what we would like to have
in this authorization. Quite frankly, I think this is a higher priority
than other measures, both of which will be in our Defense authorization
bill, as well as in the supplemental. We will have, hopefully, the
opportunity to make that case. I will stand shoulder to shoulder with
the Senator from California, Senator Brownback, and Senator Kyl to make
that presentation to this body and to the appropriators in order to
fund this measure.
I agree, we do not want to misrepresent to the American people that
we are doing something on student visas, that we are doing something in
terms of requiring our intelligence agencies to give information to the
INS to try to stop terrorists, or that we have backup systems so we
know whether the students are going to their colleges or staying in the
colleges. All that is included in here.
I think we have a strong case. As in many different areas of public
policy, we are not able to get all the things we would like, but this
is a very compelling justification for all of the provisions we have
included in this bill, why we have such a broad support from so many of
the different groups and individuals who understand the importance and
significance of this proposal.

It has been very worthwhile, as the Senator from West Virginia has
pointed out, that with the authorization of this legislation it does
not mean all resources are going to be there. Within the President's
budget, there is a downpayment for the startup of these proposals and
we will have the opportunity as these appropriations try to give this
the high priority it deserves.
Quite frankly, I think if we are looking over what the nature of the
threat is, we know it obviously is military, and that is costing more
than $1.5 billion a month. More importantly, it has cost a number of
American lives. We know that. We know it is intelligence. We know the
very substantial amount runs into the billions and billions of dollars
in terms of intelligence, particularly in human intelligence. We know
we need additional resources to pursue and track down money laundering.
That is costly. Perhaps we are not spending enough in that area.
The good Senator has raised the importance of making sure we will
have adequate capability in areas of bioterrorism. I think that is as
high a threat as any of the others. Still, as he has pointed out on
other occasions, he brought the administration to a more robust
investment in bioterrorism, which I still don't think is adequate to
construct and begin the early detection and containment as well as the
stockpiling of various medicines but we have made an important
downpayment.
For me, and I think for others, this area in terms of doing something
about the easy access into this country falls right into similar
priorities. For this Nation, if we haven't got it today, we ought to
have it tomorrow. The American people will certainly support, out of a
$2 trillion budget, $1 billion additional for our national security.
That is what we are committed to. Of course, we would obviously welcome
the Senator from West Virginia, but I don't think the American people
can understand with the case that has been made in a bipartisan way, a
compelling way, in terms of where the threat is to our borders, this is
a matter of key national security. It could be as important as
shortening the length of time of an aircraft carrier battle division
off the Indian Ocean for a couple of months.
This is national security and important. We ought to be able to make
the case. I hope we will be able to fund it. We don't have all the
answers or all the resources clearly today. We are strongly committed
to making sure this is going to be funded and going to be put into
effect. I believe we will be very careful in overseeing and making sure
it is effective. But as the good Senator has pointed out, we haven't
got the resources on this today. This is an authorization. We have
remaining time before we get into the appropriation.

[[Page S2650]]

This has a high national priority in terms of our national security. As
we move down the process, we welcome the chairman's help in making sure
the protections that will be guaranteed by this legislation for our
people will be achieved.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. BYRD. Mr. President, there is no difference, when it comes to
stating the compelling need for what the bill seeks to do--there is no
difference between the Senator from Massachusetts and myself. We stood
toe to toe last year. So did the distinguished Senator from California,
who is now presiding, Mrs. Feinstein. We stood toe to toe with each
other. When I tried to add $15 billion--half was for New York--in the
stimulus bill for homeland defense, we were together. I am with you
today. We were together then. But a point of order was raised on the
other side of the aisle against that money. It was the 60-vote point of
order. We could not find the 60 votes.
Then, when the Defense appropriations bill was called up at the end
of the year--again, there was $7.5 billion for homeland defense in that
bill, $7.5 billion--a point of order again was raised on the other side
of the aisle. It was a 60-vote point of order. We did not have the 60
votes on this side of the aisle.
So there is no question about the compelling need for these
additional items to protect the borders of this country. But what I am
saying today is the President of the United States--we saw it in the
papers, I believe it was today or yesterday--threatened to veto any
appropriations bill that went beyond what he was requesting. That may
not be the exact phrasing, but we are already threatened with a veto.
So where is this money coming from? I am only saying we make a
mistake when we pass legislation here that leaves the American people
under the impression we have done something to surmount the problem,
that we pass legislation to deal with border security that will
adequately deal with the problem, will provide the technology, will
provide the additional personnel, will provide the money so people can
sleep on their pillows after this bill passes and it is signed into
law, if it is signed into law, comfortable in the thought that the
Congress has taken care of the matter quite adequately; we have passed
legislation to do it.
But where is the money? It is one thing to talk about belling the
cat, but who is going to bell the cat? That is an old fable.
Saying these things, I do not level criticism at the authors of this
bill. As I said, I intend to vote for it, depending on what it looks
like when it comes up for passage. But I raise these legitimate
questions. I do not believe anybody in this Chamber can answer them.
How much is this bill going to cost? How much is it going to cost? How
much more is going to be put on the shoulders of the INS?
We make a serious mistake, when we pass legislation to deal with an
obvious and compelling problem, when we pass legislation that purports
to deal with that problem but does not deal with it or is not
enforceable. I question whether or not some of the deadlines in this
bill can be met.
Let me read for the Senate what Alexander Hamilton says in the
Federalist No. 25, just a single paragraph. Here is what Hamilton says
in the Federalist No. 25, and I think we should keep this in mind every
day when we pass legislation. I think it is very apropos to the
legislation we are going to pass here. We are going to pass it, I have
no doubt about that. Here is what Hamilton said:

Wise politicians will be cautious about fettering the
government with restrictions that cannot be observed, because
they know--

They know--

that every breach of the fundamental laws, though dictated by
necessity, impairs that sacred reverence which ought to be
maintained in the breasts of rulers towards the constitution
of a country, and forms a precedent for other breaches where
the same plea of necessity does not exist at all, or is less
urgent and palpable.

That is Alexander Hamilton. That is not Robert Byrd. Let me read it
again:

Wise politicians will be cautious about fettering the
government with restrictions that cannot be observed, because
they know--

In other words, the wise politicians know--

because they know that every breach of the fundamental laws,
though dictated by necessity, impairs that sacred reverence
which ought to be maintained in the breasts of rulers towards
the constitution of a country, and forms a precedent for
other breaches where the same plea of necessity does not
exist at all, or is less urgent and palpable.

So Hamilton is saying that wise politicians ought to be very cautious
about fettering the Government with restrictions that cannot be
observed. And that is why I am saying about this bill: Can these
deadlines be met? Is the technology available now in order to meet
them? Is the technology available so that those deadlines can be met?
Is the money going to be there? Is the money going to be there for the
personnel, for the technology, to meet those deadlines?
Hamilton says that if we pass these requirements and they are not
met, then this is a breach of the law, although it may be dictated by
necessity--as we readily admit that the necessity is there, to do what
this bill does. He speaks to that sacred reverence which ought to be
maintained in the breasts of rulers towards the constitution of a
country. And he says one breach will lead to other breaches. One breach
will be a precedent for other breaches, where the same plea, of
necessity, may not even exist.
So I consider it to be a pretty serious matter that when we pass a
bill of this kind, we are going to pass a law that can be observed and
will be observed, the requirements will be met, the equipment is there,
the technology is there, the money is there, and so we can rest assured
that whatever the bill purports to require will be done. That is the
basis of my concern.
The President's supplemental request for the INS is related to hiring
more agents for airports and seaports. Senator Hollings believes we
gave them enough money in December for this because they cannot hire
people fast enough with the money they have. As I understand it,
Senator Hollings believes that where we are short is in INS
construction of building facilities to house the staff they are hiring.
Therefore, we are seeking more INS construction in the supplemental.
I will be glad to have anyone answer the questions I have asked, if
they wish to do so. In the meantime, I will proceed with my statement.
Over the last ten years, a vigorous campaign has been waged in behalf
of immigration. The economic benefits of immigration have been touted
by businesses, the news media, and politicians. Those who have
questioned the benefits of immigration were immediately labeled as
being ``uninformed'' or ``outside of the mainstream.'' The Congress
quietly passed legislation, without adequate debate or amendments, to
roll back deadlines and weaken mandates for our border defense
agencies. As a result, immigrants--illegal and legal--have flowed into
this country at a rate of over 1 million immigrants per year.
The attacks that occurred on September 11 brought that campaign to a
screeching halt as the American people were made acutely aware of just
how porous our border defenses had become. Each of the 19 hijackers was
granted visas by a U.S. consulate abroad. Three of the September 11
hijackers had overstayed their visas and were living in the U.S.
illegally at the time of the attacks. Seven of the 19 hijackers
obtained fraudulent ID cards with the help of illegal aliens.
The American people must have wondered how the terrorists that
perpetrated the September 11 attacks could so easily have slipped
across our borders and seamlessly blended into society. With all the
governmental requirements placed on law-abiding families simply to own
a dog or to build a tool shed in the backyard, it seems outrageous that
foreign terrorists could be leasing apartments, opening bank accounts,
attending school, and invisibly maneuvering through the system while
plotting their dastardly schemes.
The American people are clear in what they now ask from the Congress
and the Administration--tougher border security and immigration laws,
more resources dedicated to our border defenses, and a more vigilant
Immigration and Naturalization Service. What they have received so far
is enough to make anyone wonder if Washington ever hears the concerns
of the people back home.
I devoted a large amount of my time last fall to providing additional
border

[[Page S2651]]

security funds. As some have already indicated, I crafted a $15 billion
homeland defense package as part of the economic stimulus bill the
Senate considered last November. That homeland defense package provided
$1.1 billion for border security initiatives.
Under a presidential veto threat, those funds were removed from the
economic stimulus package by a partisan vote on a budgetary point of
order. Many of the Senators who will support this authorization bill
voted against those actual additional border security funds last fall.
After the $15 billion homeland defense package was removed from the
stimulus bill, I offered a $7.5 billion homeland defense package. Of
that amount, $591 million was devoted to border security initiatives.
Once again, under the threat of a presidential veto, those funds were
removed, this time from the Fiscal Year 2002 Defense Appropriations
bill, by a partisan vote on a budgetary point of order requiring 60
votes to overcome. And once again, many of the Senators who will
support this authorization bill voted against border security funds
last fall.
Had those funds been approved, that money would be in the pipeline
right now for hiring and training hundred of additional Border Patrol
agents. The Administration, instead, chose to wait, and then asked the
Congress for those same border security funds that it threatened to
veto just two months earlier. As a result, even if, by the October 1
deadline, those funds are appropriated by the Congress, those funds
will not be released until early next year--at the earliest. The
Administration effectively delayed hundreds of millions of dollars in
border security funds for at least one full year.
As for a more vigilant Immigration and Naturalization Service, the
American people must have been shocked--I know that the President said
he was shocked--to learn that, six months to the day after the
September 11 attacks, the INS was still processing paperwork for two of
the terrorists who piloted the planes into the World Trade Center
towers.
They were dead, and internationally recognized as the September 11
terrorists. Yet, the INS was still processing the paperwork for them to
attend a flight school in Florida.
In March, the American people learned that the INS mistakenly granted
special waivers to four Pakistani sailors who were aboard a Russian
ship in Norfolk, VA. When the ship sailed for Savannah, GA, 2 days
later, the four Pakistani crewmen were missing. An INS inspector
entered an improper birth date for one of the four missing Pakistanis.
If the birth date had been entered correctly, INS would have found that
the man had committed an immigration violation in Chicago several years
ago, and, therefore, was not eligible for a visa.
To make matters worse, in the midst of a debate on border security,
there are efforts underway to add to this legislation, at the request
of the President, an amnesty provision for hundreds of thousands of
illegal aliens, including many who have not undergone any background or
security check.
The American people have good reason to raise an eyebrow when they
hear the Congress and the administration tell them that they are
working to tighten our border security.
If we are to restore the trust of the American people in our efforts
to secure our nation's borders, we need to have a serious debate about
our border defenses and what we can actually do to repair them.
That is part of the reason I objected to passing this bill by
unanimous consent without any debate or amendments. I understand there
are some amendments that have been agreed upon already which will be in
the managers' amendment at the end of the debate when we vote on the
bill. There are some amendments that have already been agreed upon
apparently by the managers. So the American people, by virtue of at
least some debate, can have at least some idea of what is in the bill
and whether or not it would be successful in tightening our borders.

We do not know how much money this is going to cost. We do not know
how the money will be made available. In a supplemental? By virtue of
Presidential request in a budget? The President did not request
anything in his supplemental request.
We have tight restrictions on moneys that are appropriated here. They
have to come within 302(a) allocations. They have to come within 302(b)
allocations. Anything over and above has to be labeled an emergency,
and the President has threatened to veto appropriations that are
labeled as emergencies unless he or his administration requests that
that be done.
So we are in a straitjacket when it comes to appropriations. I know
there are Senators who are going to be looking at me, wanting moneys to
be appropriated for this bill.
So really proponents of this measure have no way of judging whether
they will have the necessary support for the appropriations that will
be needed later this year to implement many of the provisions of the
bill. How can taxpayers, who ultimately will be responsible for footing
the cost of the bill, be expected to support the long-term financial
commitment this bill requires if we do not know now, when we are
debating the bill, where the money is coming from?
I do not know how enthusiastic or whether the administration will be
enthusiastic at all about this bill. I do not know how enthusiastic
they will be, if at all. And yet the administration tells us we need to
have an amnesty provision. Not in this bill. Fortunately, the
distinguished Senator from Massachusetts, Mr. Kennedy, and others, are
not advocating that in this bill.
But that 245(i) amnesty bill, that is something that is clearly
opposed, I believe, by a majority of the American people. Yet the
administration says, on the one hand, how careful we have to be, how
cautious we must be, how much on our guard we must be. The
administration has issued how many alerts? Four already? Three or four
already. He says, on the one hand, be alert. On the other hand, he
says, let's let the illegals in. Let's let them stay. Those who have
violated U.S. law, let them stay. What about those people who have
stood in line, who have followed the procedures by which they can be
entitled, eventually, to become residents and citizens? How do they
feel when as to a group of thousands or hundreds of thousands of others
who violate the laws, who make the shortcuts, they see the
administration advocating that those who made the shortcuts, those who
violated the laws, be given amnesty? Why abide by the laws if you can
violate them and achieve your goal even much quicker by violating them?
What is the inducement for following the laws?
Now let's take the visa waiver program, for instance. Under this
program, roughly 23 million foreign nationals from 28 countries enter
the United States as temporary visitors without obtaining a visa from a
U.S. consulate abroad. By eliminating the visa requirement, aliens are
permitted to bypass the State Department background check--the first
step by which foreign visitors are screened for admissibility when
seeking to enter the United States.
Proponents of the program are quick to point out that only low-risk
countries, mostly Western European, may participate in this program.
The Immigration and Naturalization Service has reported that hundreds
of thousands of passports from these countries have been stolen--
stolen--in recent years. So when you couple these thefts with the fact
that, according to the Justice Department's Inspector General, the
Immigration and Naturalization Service has roughly a minute to complete
an inspection, it is likely that a terrorist with a fraudulent passport
will try to slip into the country. That is exactly what happened in
1992, when one of the conspirators in the 1993 World Trade Center
bombing tried to get into the country through the visa waiver program
with a fake Swedish passport. He was caught, and a search of his
luggage revealed bomb-making instructions.
The pending bill addresses this problem, in part, by requiring stolen
passport numbers to be entered into a new interoperable database
system. But, as I understand it, such a system is years away from being
completed. In the meantime, the State Department and the INS are not
able to share information on foreign nationals who enter the country
under this program. Well, if it is important enough for the INS and the
State Department to share information on visa waiver participants, I

[[Page S2652]]

suggest the visa waiver program will remain a serious hole in our
border defenses until that interoperable database system is fully
implemented.
And that is just one problem that Senators will find if they take the
time to read through this bill, as I have.
Consider section 402, which deals with passenger manifests.
Section 402 of this bill requires commercial air and sea vessels
arriving and departing from the United States to provide an appropriate
immigration officer with a manifest of who the passengers are who are
on board. In subsection (g), Senators will note that the penalty for
not providing these manifests is a $300 fine--I suppose some people
carry that much money around as lunch money--a $300 fine for each
person not mentioned, or incorrectly identified, in the manifest.

This penalty, I suggest, is wholly inadequate. What is more, there is
nothing in this bill to prevent a passenger from providing false
information to the air or sea carriers. This provision, therefore, just
eats around the edges of a significant shortfall in our border
defenses. A $300 fine is not much when compared with the safety and
security of the Nation. But, of much greater concern is the question of
the ability of anyone who must take information from passengers and
fill out the manifest to determine the reliability of the information
they have been given by the passenger. It is a joke to assume that
someone with bad intentions would give accurate information to an
employee of the airlines, for example. That is not a criticism of
airline or sea carrier employees.
It is, however, a fine example of how many provisions in the bill
which on paper sound good but in reality provide only a false sense of
increased security.
The same can be said about the October 26, 2003, deadline. That
deadline appears five times in different locations throughout the bill.
For example, section 303: Not later than October 26, 2003, the Attorney
General shall install at all ports of entry in the United States
equipment and software to allow biometric comparison of all U.S. visa
and travel documents. That sounds wonderful. I don't know why they
picked October 26--why it shouldn't have been October 1 or November 1.
Why October 26? Five times that date is used: October 26, 2003.
I don't think that is a realistic deadline. Perhaps someone can
convince me otherwise. Let me say it again. Not later than October 26,
2003, the Attorney General shall--not may, shall--install at all--not
just a few, not just certain ones, all--ports of entry in the United
States equipment and software to allow biometric comparison of all U.S.
visa and travel documents.
I wonder if that deadline, October 26, 2003, is realistic. We have 62
ports of entry which are closed 8 hours a day with only an orange cone
in front. We are years away from being able to provide the
sophisticated equipment for checking biometric identifiers at all ports
of entry.
Under the regular appropriations process, Congress cannot even get
that funding out to the agencies before October 1, 2002, at best.
Assuming all 13 bills are completed on time by the end of the fiscal
year, it could still take months before funds are released to the
agencies for this purpose. I think it is unwise to set deadlines such
as that one--so strict--when it is highly questionable as to whether or
not those deadlines can be met.
As far as I can tell, that deadline is based solely on the fact that
the USA PATRIOT Act was signed into law on that same day, October 26,
in 2001. If that is the case, that is certainly no reason to use a
deadline. Senators should be aware that these deadlines appear wholly
unrealistic, especially the one I have just mentioned.
I appreciate the notion that without deadlines, it is difficult to
press the agencies to act expeditiously. But when such deadlines come
and go and the promised action has not been taken by the Federal
Government, then Hamilton's admonition is called into focus: The public
becomes rightfully disillusioned with the ability of the Government to
do what it promises to do. We should put greater stock in the trust and
confidence of the American people. Without their continued support of
this measure, we lose the political will to act in the Congress, and we
will lose consensus elsewhere throughout the Government; that consensus
rapidly dissipates.
The same could be said about the penalties included in this bill for
the more than 15,000 universities, colleges, and vocational schools
across the country that accept foreign students. There are more than
500,000 foreign students in the United States who are benefiting from
the goodwill of this country and from our investment in education. Many
of these are nuclear engineering scholars. Many of them are
biochemistry students. Many of them are pilot trainees who have access
to dangerous technology, training, and information.
This bill takes some good steps toward setting up a national
monitoring system to verify the enrollment status of these students.
However, universities are going to have to play a role in helping the
Government to verify that these foreign nationals are actually showing
up for class. It has been noted that one of the September 11 hijackers
entered the United States on a student visa, dropped out of classes,
and remained here illegally thereafter. But unless this Congress places
some tough penalties on universities to comply with the tougher
reporting requirements contained in this bill, these universities are
unlikely to take seriously the necessity to comply with these new
responsibilities.
The legislation gives the INS and the Secretary of State too much
discretion in determining whether or not these educational institutions
should be penalized.
Let me read from the bill:

Effect of Failure To Comply.--Failure of an institution or
other entity to comply with the recordkeeping and reporting
requirements to receive non-immigrant students or exchange
visitor program participants under section 101(a)(15) (F),
(M), or (J) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15) (F), (M), or (J)), or section 641 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(8 U.S.C. 1372), may, at the election of the Commissioner of
Immigration and Naturalization or the Secretary of State,
result in the termination, suspension, or limitation of the
institution's approval to receive such students or the
termination of the other entity's designation to sponsor
exchange visitor program participants, as the case may be.

Now, why do we say ``may''? We are talking about the failure of an
institution or other entity to comply with the recordkeeping and
reporting requirements to receive nonimmigrant students or exchange
visitor program participants--that failure, as a result of that
failure. So if there is a failure to comply with the recordkeeping and
reporting requirements, it may--``may'' it says--at the election of the
Commissioner of Immigration and Naturalization or the Secretary of
State, may result in the termination, suspension, or limitation of the
institution's approval to receive such students.
Why shouldn't we say ``shall'' if an institution is going to be that
lax and fail to report? We are talking about people's lives here. It
should be ``shall'' the election of the Commissioner of Immigration and
Naturalization, or the Secretary of State ``shall'' result in the
termination--that is the end, cut it off--suspension, or limitation of
the institution's approval to receive such students or the termination
of the other entity's designation to sponsor exchange visitor program
participants, as the case may be.

Senators should understand and should insist that tougher penalties
are necessary to ensure that this student monitoring system will work;
and it won't work if we leave it full of holes like that.
Similarly, this Congress is quick to pass legislation that will place
new requirements and deadlines on the INS without giving adequate
consideration to whether that agency is equipped to meet those
mandates--that agency of all agencies, sad to say.
The inevitable result is that the Congress will later have to weaken
the mandate or roll back the deadline when the Immigration and
Naturalization Service fails to comply with the law.
Considering the INS's most recent debacles and its apparent inability
to handle its current workload, I suggest that before we task that
agency with additional responsibilities and meeting additional
deadlines, we should first try to reach some sort of a consensus about
its organizational structure.
So far, the administration has proposed two seemingly contradictory
INS restructuring plans. The first plan

[[Page S2653]]

would split the INS into an enforcement agency and a separate service
agency, and the second would consolidate the INS and the Customs
Service within the Justice Department.
The House Judiciary Committee marked up an INS restructuring plan
about a week ago. As I understand it, Chairman Kennedy and Senator
Brownback are crafting an INS restructuring plan as well. That is to
say nothing of the fact that at least two bills have been introduced in
the Congress that consolidate the Border Patrol functions of the INS
within the Homeland Defense Department or Agency.
With all of these organizational plans circulating through the Halls
of Congress, it makes little sense that we are considering a border
security bill that places new mandates on the INS without addressing
how that agency should be structured.
The organizational structure of our border defenses should be part of
any border security debate. The single most important priority that
should be driving these policies is the safety of the American people
and the safety of the American institutions within their own borders.
Senators may argue that this issue of coordinating our border
defenses was addressed when, in the aftermath of the September 11
attacks, the President created the Office of Homeland Security and
appointed Governor Tom Ridge as its Director. The Federal Government
needs a focal point to coordinate its homeland security efforts.
Yet the Office of Homeland Security and its Director, in lacking any
statutory authority, will find it difficult, I am sure, to fulfill this
mandate. Governor Ridge can request, but he cannot order, the agencies
charged with protecting our homeland to implement his recommendations.
He has to rely on the President to resolve agency disputes, which
include opposition to the Director's initiatives.
We have already seen the warning signs of the potential troubles that
lie ahead. In early February, Governor Ridge said that our borders
remain ``disturbingly vulnerable.'' He cited as a reason that there is
no ``direct line of accountability.''

Last year, he proposed that the various border security agencies be
consolidated under a single Federal entity, but the agencies charged
with border security have resisted this consolidation. While the White
House announced that this week the President would endorse such a
consolidation, that effort has been delayed for months because of
bureaucratic resistance. The authority of the Office of Homeland
Security is only as strong as the President's involvement in that
office.
Furthermore, under Executive Order 13228, which established the
Office of Homeland Security, the President can unilaterally change the
mandate of the OHS and, in large or small part, channel discretionary
funds to the OHS through the White House office budget. Well, the
Nation's Homeland Security Director has declined to testify before the
Congress to justify the Office of Homeland Security's expenditures or
to justify his actions in safeguarding the Nation against terrorism.
Not only does this make it difficult for the Congress to conduct
oversight of appropriated funds and the oversight of our homeland and
border security effort, but it limits the Congress from helping the
Office of Homeland Security to fulfill its mandate.
Fixing the holes in our border defenses will require more than an
interoperable database system and biometric identifiers. While they may
prove worthwhile, these border security initiatives are no panacea for
border defense.
We need to adopt a different mindset when it comes to the security of
our borders. We need to consider the organizational structure of our
border defenses. We need to acknowledge that we will have to be
committing resources for a long time if we are to close the holes that
were exposed by the September 11 attacks.
I thank Senators Kennedy, Brownback, Feinstein, and Kyl for authoring
this legislation. But I am sure the bill's proponents understand that
the legislation is not the final answer to what ails our border
defenses. Meeting the deadlines and requirements set out in this bill
will require their continued support for large amounts of funding. I
don't know how we can assure that this funding is going to be there
under the requirements and restraints under which the Appropriations
Committee acts. Without those funds and without their continued
support, the bill is just an empty promise.
Madam President, I yield the floor and suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BROWNBACK. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Nelson of Florida). Without objection, it
is so ordered.
Mr. BROWNBACK. I thank the Chair.
Mr. President, I rise to speak on the border security bill that is
before us, and to also note, at the outset, the thousands of people who
are gathering just outside the Capitol in a statement of support for
Israel.
It is an important gathering, particularly because of where this
Nation is at this point in time and the importance of where Israel is
right now: The difficulties and confrontations they have had with
suicide bombers, which we witnessed on our soil and which we have dealt
with in our own land as well.
September 11 brings back very clear memories--vivid, difficult
memories for many of us--when suicide bombers took planes in the United
States and attacked two buildings in New York, the Twin Towers, the
Pentagon, and a fourth plane that was perhaps headed even for this
building that went down in a field in Pennsylvania, thanks to the
heroic efforts of people onboard.
Israel is trying to defend her land from suicide bombers and has been
aggressively doing so. I know some people have questions about the
tactics involved but not dealing with the issue.
I certainly would like to state my strong support for Israel, a
strong ally of the United States and has been and continues to be a
strong ally of the United States, a democracy in a different and
difficult region of the world, one that has worked and stood side by
side with the United States in our times of need, and we should stand
with Israel as well.
I urge Israel to allow humanitarian groups in to make certain that
people are cared for as much as possible; that civilian damage is
limited as much as possible.
In their dealing with terrorists, I think they should deal and they
have dealt clearly aggressively with terrorism. Terrorism must be
renounced. Chairman Arafat must renounce terrorism on behalf of the
Palestinian people and say: No more terrorism. That should be a minimum
statement.
I hope Chairman Arafat will lead his people toward peace, but I have
real doubt whether or not he wants to lead the Palestinian people
toward peace. There was an incredible offer on the table from Prime
Minister Barak--it was less than 2 years ago--and he walked away from
that. I question whether or not he is willing to work toward peace. We
need somebody within the Palestinian leadership who wants peace.
I want to address some of the comments being put forward on the
border security bill by our distinguished colleague from West Virginia,
Senator Byrd, who is an outstanding Member of the body. I want to
address the specific concerns he brought forward on this legislation.
I believe we will pass the Enhanced Border Security and Visa Entry
Reform Act of 2001. The House passed it last year. The President wants
the bill. It is up to this body to act. I believe we will act, and I
believe we will have a large vote.
I am hopeful we can do this within a minimum time period because
there is so much other important pending business in front of this
body. This is important legislation, but so is the energy bill that has
been before the Senate; so is a bill I have to prevent human cloning,
to stop human cloning. We need to get a budget through. We need to
start through the appropriations process.
It is not as if there are not a lot of issues stacked up. This is one
of the major issues. I think it is time for us to pass this bill. There
was actually very little opposition to it in the House. I think most
people are very

[[Page S2654]]

comfortable with the main provisions of this bill, and I am hopeful we
can work through other provisions without much difficulty.
I will note some of the major provisions of this bill for my
colleagues who are following this debate: Restrictions on
nonimmigration visas for aliens coming from countries that sponsor
terrorism; reform of the visa waiver program; requirement of passenger
manifest information for commercial flights and vessels; repeal of the
45-minute time limit on INS inspections of arriving passengers.
That may cause inconvenience for some people. I want to note that,
too, for my colleagues who are watching. The lines could be a bit
longer, but we are talking about security in the United States, and it
may be necessary for the time to be slightly longer to ensure people
coming into our country mean us no harm.
In this bill, there is the enhanced foreign student monitoring
program. Several of the people who terrorized us, bombed us on
September 11 were students. We need to get that procedure under control
and know where these students are and if they are going to reputable
schools in the United States.
The magnitude of the problem we are dealing with is enormous.
Immigration, the travel of people, non-U.S. citizens, in the United
States is a key issue for our economy, it is a key issue for our
culture, and it is a key issue for our society in the future. We are a
land of immigrants. Outside of Native Americans, we all came here from
somewhere else. This is a key part of who we are and who we will be in
the future.
To give some scale of magnitude of the issue with which we are
dealing, 2 years ago, there were nearly 330 million--330 million--legal
crossings over our borders by non-U.S. citizens. That has nothing to do
with illegal crossings. There were 330 million legal crossings by non-
U.S. citizens over our borders. This is a huge bit of commerce. There
is a great deal of interaction that takes place and is very important.
Out of that 330 million crossings universe, we are looking for a very
small portion of those who want to do us harm. I talked on Friday about
this being the equivalent of looking for a needle in a hay field--not a
haystack, a hay field. We have to be intelligent about this and use the
means at our disposal to find the people who are here trying to do us
harm.
One of the key elements is to make sure we have information sharing
between various agencies--between INS, the Department of State, CIA,
DIA, FBI, and I would like to think, as well, foreign information from
foreign intelligence agencies that can point out: These are the people
we are watching.
If we are looking at 330 million people in a universe and are trying
to hone this down to several hundred, we need a lot of information.
Currently, all this information is in stovepipes, it is stacked up,
and there is not the cross-communication we need to have. That is one
of the things that is required in this bill. It takes time to get
computers talking to one another. It is sometimes difficult getting
people to talk to one another. Computers have to be wired.
We can do that, and we need to do that. That is a key provision of a
portion of this bill. We are trying to extend the perimeter of the
United States to include both Canada and Mexico.
I was at the El Paso INS detention facility about a year ago, and in
that detention facility were people from 59 different countries who had
come in through Central America, South America, had taken land
transportation up and through Mexico, and then crossed over into our
borders. We need to have that perimeter extended.
Within this bill is a push to get that perimeter extended to include
Canada and Mexico so we get more cooperation and help from them in
dealing with our perimeter. That is important for us to be able to do.
Now there were some questions raised about how will these be paid
for? Those are certainly legitimate questions. This is an authorization
bill. Some of these are authorizing features, not appropriations
features, but much of this is going to require resources. It is put
forward by the Department of Justice that the first-year implementation
of this bill would cost about $1.186 billion. Of that, $743 million is
in the current Bush budget. That is already put forward in the budget.
So we are quite a ways along the way already with what is built into
the current Bush budget.
Plus, as I understand it, there are still some resources left from
the $40 billion supplemental that was put forward last year to deal
with the crisis and the current situation. I am supportive and will be
supportive of additional resources to make sure we do fully fund this
at the $1.186 billion level for this first year. Total implementation
costs we have at $3.13 billion over the full lifetime of the program.
That is the universe of the numbers we are talking about. We are well
on the way to funding this.
There has been concern raised about why was this not funded last
year? There were people who put forward bills. The chairman of the
Appropriations Committee put forward an additional $15 billion
supplemental saying, let us fund it now. The President at that time
said: No, I want to try to digest the $40 billion that has already been
allocated and authorized before we step into another tranche of funds.
I thought that was a wise and prudent course. That is why I did not
at that time support the additional $15 billion; whereas now we have
had some months to be able to think this through, to see where the gaps
and the holes are. The President has built a portion of it into his
budget, and we have about another $600 million that we are looking at
to fully fund this program. That is what we are talking about. I think
that is a prudent and wise approach for us. I thought it was at that
time. We need time to be able to digest these sorts of changes and
resources, and I think this is the right way for us to go.
We are not getting the cart ahead of the horse. We are doing the
authorization, which we are to do before we do the appropriation. So we
authorize for what we in the Congress think we should do, and then we
appropriate to follow on with that. I am committed to seeking those
resources to get this fully appropriated. I think it is important we do
that. Frankly, I like that we are doing this one right because
typically or frequently we will do it backwards and not get that done.
I do believe that with the nature of this priority, the nature of
border security, the importance of that for our future and the security
of our people, this will be able to secure the adequate resources it
needs throughout the competition within the appropriations process. We
should be able to put these forward and meet the higher priorities for
the security needs of the country. The lead requirement for us is to
provide for the common defense and, to me, in this day and age, it is
to provide protection against terrorists.

We are prosecuting our war overseas now. We are prosecuting it in
Afghanistan. We have troops in Georgia. We are helping train troops in
the former Soviet Union country of Georgia. We have troops in the
Philippines as trainers to deal with terrorist groups. There may be
troops in some other countries as we go to where the terrorists are to
dig them out before they come this way, and then we enhance our border
security so we can deal with the terrorists who try to get on our soil.
I think the prosecution of the war is going well at this point in
time. It would be my hope, as one of the cosponsors of this
legislation, that we could move this through. If people have
amendments, we ask for them to bring the amendments forward so we can
see if we can get them handled appropriately. I would hope we could do
this without too many amendments so we could get this to the House and
get it passed. The House has passed this bill twice. We need to get it
passed.
I hope if people do have amendments that they want to bring they
would bring them up now so we can deal with the legislation, deal with
the amendments, and get the legislation passed and implemented into law
because it has broad support throughout this body.
I may make comments at a later time on this legislation, but at this
time I yield the floor.
The PRESIDING OFFICER. The Senator from West Virginia.

Amendment No. 3128

Mr. BYRD. Mr. President, I have an amendment which I will shortly
send

[[Page S2655]]

to the desk, but let me say a few things in regard thereto first.
There is an urgent and pressing need for the United States to improve
the enforcement of our laws that prohibit the importation of goods that
are made using forced labor. Countries throughout the world are using
forced, prison, or indentured labor to cut costs to the bone, increase
the export of cheap goods, and drive American manufacturers under. We
have to take stronger action to see that U.S. laws that prohibit this
repugnant practice are enforced.
Since 1930, the United States has had a law on our books that
prohibits the entry of prison-made goods and requires the U.S. Customs
Service to seize goods destined for our markets that are made utilizing
forced labor. There are common sense reasons for the Tariff Act of
1930. The importation of prison-made goods is not consistent with
either the principles of free trade or human rights. American consumers
should not unwittingly be supporting repression in other countries
simply by shopping at the local mall.
Admittedly it is difficult to enforce laws prohibiting goods made
using forced labor. Overall, U.S. Customs officials inspect less than 3
percent of all imports, and often those inspections are superficial.
There are the problems of sheer volume of imports, the commercial
requirements of rapid movement of goods, and other realities of today's
commerce but we must endeavor to do a better job. With respect to
forced labor-made goods, there are issues of fraudulent mis-labeling,
lack of cooperation of foreign governments, and the existence of a
sophisticated network of middlemen engaged in transshipment of goods
destined for America. For instance, goods made in the vast forced labor
manufacturing network in China may arrive in the U.S. from Nigeria.
Such is the nature of global commerce today.
A number of countries make common use of forced labor--China is but
one of them. One estimate places the number of forced labor facilities
in China at an astounding 1,114, employing as many as 1.7 million
people. Mr. President, that bears repeating. China, a country that
exports nearly $100 billion in merchandise to the United States, has up
to 1.7 million forced laborers in 1,114 facilities. Some of these
people were sentenced to prison time at hard labor for crimes that they
actually committed.
Others are forced into prison labor camps without so much as a trial,
because of political or religious beliefs, and are subject to torture
and beatings. In China, if one visits a non-state-sanctioned church,
for instance, such an ``offender'' could end up making lawn tractors,
cordless drills, or soccer balls for U.S. markets.
The forced labor facility network is an integral part of the Chinese
economy. But, there are no firm numbers on the quantity of forced
labor-made goods that eventually find their way from China's extensive
forced labor network to our shores, shipped here directly or
transshipped through other countries. It is anyone's guess as to how
much of the $100 billion in Chinese goods sold in the U.S. each year
are made, wholly or in part, by forced labor. But there can be no doubt
that with a forced labor population of at least 1.7 million, China is
selling a considerable amount of prison-made goods to the United States
which is the main purchaser of China's exports.
China is not the only country that produces and exports forced labor-
made goods. The 2001 State Department Country Report on Human Rights
Practices names Burma, Brazil, and Russia as having serious problems in
this area even though it is clearly against our laws for such goods to
cross our borders.
To tackle this problem, my amendment takes three actions. First, it
requires all importers of goods into the U.S. to certify and the U.S.
Customs Service to ensure, based upon verification of these
certificates, that the goods being brought into our country have not
been made with forced labor. Second, the amendment requires
renegotiation of two of our agreements with China that deal with the
inspection of forced labor facilities in China. Third, the amendment
reauthorizes $2 million for the Customs Service to provide additional
personnel to monitor imports and enforce our anti-forced labor import
laws.
Regarding the first section of my amendment, the requirement for
certification of all goods coming into the U.S. to be ``forced labor-
free'' is consistent with the practice and intent of other
certifications that are required of importers. When agricultural goods
are brought into the United States, importers must present
certifications that the products have been appropriately inspected and
have established origins and producers. The World Trade Organization
has its own certification requirements for ``green'' products, to
insure that imported items are made in an environmentally friendly
manner. In fact, the WTO recognizes that certification requirements are
a legitimate tool in combating deceptive trade practices, such as those
engaged in by countries that try to pass off forced labor-made goods to
unsuspecting consumers in other countries, by transshipment,
mislabeling, or other methods.
As to the second section of my amendment, there is a need to
strengthen our existing agreements with China to improve the ability of
our Customs investigators to visit suspected forced labor facilities.
Right now the site inspection and investigation process is beset by
problems of interpretation differences and plain old stonewalling. For
example, in one instance it took three and one half years for a U.S.
requested inspection of a heavy duty machine factory to be carried out.
There are two agreements with China going back to 1992 and 1994 which
govern our U.S. Customs agents' access to suspected forced labor sites.
Those agreements are not working. The United States needs to conduct
these necessary inspections and investigations in a timely manner. To
effectively do so, we need to close the loopholes in the present
inspection agreements.
Finally, the third section of my amendment authorizes $2 million for
Customs Service personnel to enforce our forced labor import laws.
Customs already has 1,100 staff positions that are funded through the
payment of fees. By authorizing an additional $2 million for the
enforcement of these laws, the Customs service will be able to hire and
dedicate more personnel for the specific purpose of discouraging forced
labor goods from penetrating U.S. markets.
The American consumer deserves to know what is on the shelves when
they go shopping. Nobody can tell just by looking at clothes on a rack
which ones were made by legitimate tradesmen and which ones might have
been made in some foreign ramshackle prison. But it is clear that some
countries utilize prison labor to gain a leg up in global markets. It
is a sick and reprehensible practice. It hurts American business and
fair-trading foreign businesses. It is an insult to our values. And it
is against our law!
I urge my colleagues to vote to help put some teeth in U.S. laws that
ban goods made with prison labor.
I send the amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from West Virginia [Mr. Byrd] proposes an
amendment numbered 3128.

Mr. KENNEDY. I ask unanimous consent that reading of the amendment be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To require that certification of compliance with section 307
of the Tariff Act of 1930 be provided with respect to all goods
imported into the United States)

At the appropriate place, insert the following:

SEC. ____. CERTIFICATION REGARDING FORCED LABOR.

(a) Short Title.--This section may be cited as the ``Labor
Certification Act of 2002''.
(b) Certification Required.--
(1) In general.--Not later than 6 months after the date of
enactment of this Act, the Secretary of the Treasury shall
require that any person importing goods into the United
States provide a certificate to the United States Customs
Service that the goods being imported comply with the
provisions of section 307 of the Tariff Act of 1930 (19
U.S.C. 1307) and that no part of the goods were made with
prison, forced, or indentured labor, or with labor performed
in any type of involuntary situation.
(2) Definitions.--In this section:
(A) Goods.--For purposes of this section, the term
``goods'' includes goods, wares, articles, and merchandise
mined, produced, or

[[Page S2656]]

manufactured wholly or in part in any foreign country.
(B) Involuntary situation.--The term ``involuntary
situation'' includes any situation where work is performed on
an involuntary basis, whether or not it is performed in a
penal institution, a re-education through labor program, a
pre-trial detention facility, or any similar situation.
(C) Prison, forced, or indentured labor.--The term
``prison, forced, or indentured labor'' includes any labor
performed for which the worker does not offer himself
voluntarily.
(c) Inspection of Certain Facilities.--
(1) In general.--Not later than 6 months after the date of
enactment of this Act, the President shall renegotiate and
enter into a new agreement with the People's Republic of
China, concerning inspection of facilities in the People's
Republic of China suspected of using forced labor to make
goods destined for export to the United States. The agreement
shall supercede the 1992 Memorandum of Understanding and 1994
Statement of Cooperation, and shall provide that within 30
days of making a request to the Government of the People's
Republic of China, United States officials be allowed to
inspect all types of detention facilities in the People's
Republic of China that are suspected of using forced labor to
mine, produce, or manufacture goods destined for export to
the United States, including prisons, correctional
facilities, re-education facilities, and work camps. The
agreement shall also provide for concurrent investigations
and inspections if more than 1 facility or situation is
involved.
(2) Forced labor.--For purposes of this subsection, the
term ``forced labor'' means convict or prison labor, forced
labor, indentured labor, or labor performed in any type of
involuntary situation.
(d) Authorization of Customs Personnel.--Section 3701 of
the Strom Thurmond National Defense Authorization Act for
Fiscal Year 1999 is amended by striking ``for fiscal year
1999'' and inserting ``for each of fiscal years 2002 and
2003''.

Mr. KENNEDY. Mr. President, it is now 4:25 on Monday. We were just
handed this amendment that is 3\1/2\ pages long dealing with the
certification regarding forced labor, directed, as I understand,
primarily, purposely, towards China and the prison force indentured
labor.
No one knows better than the Senator from West Virginia the vast
opportunities for amending pieces of legislation. We try to respond to
our colleagues by indicating what is currently being considered on the
floor so they can make some judgment and informed decision on these
amendments. We are not in the position of being able to do so since we
were not afforded an opportunity to see the amendment until just a
couple of minutes ago.
Mr. BYRD. Will the distinguished Senator yield?
Mr. KENNEDY. I am happy to yield.
Mr. BYRD. I apologize for the amendment not having been shown to the
Senator. I was under the impression my staff had discussed this
amendment with the Senator. I will be happy to either withdraw the
amendment for the time being or ask that it be set aside so the Senator
and his staff and others may have an opportunity to look at the
amendment.
Mr. KENNEDY. I appreciate that.
Mr. BYRD. This was inadvertent on my part.
Mr. KENNEDY. I have had an opportunity to talk to two of my
colleagues. I conferred with them a moment or two ago. They were not
familiar with this amendment, either.

Amendment No. 3128 Withdrawn

Mr. BYRD. Mr. President, I will withdraw the amendment now. I again
apologize to the Senator. This was an inadvertant oversight on my part.
I certainly do not seek to take any unfair advantage of any Senator. I
never have. I will withdraw the amendment now and will offer it later
after it has been discussed with the distinguished Senator.
The PRESIDING OFFICER. Will the Senator from Massachusetts yield for
that purpose?
Mr. KENNEDY. I yield for that purpose.
The PRESIDING OFFICER. The amendment is withdrawn.
Mr. BYRD. I thank the Senator.
Mr. REID. Mr. President, if I could ask a question of the Senator
from Massachusetts, I am wondering if the Senator from Massachusetts
will allow me, through the Chair, to ask the distinguished Senator, the
President pro tempore of the Senate, does the Senator from West
Virginia at this stage know how many more amendments he may offer?
The reason I am making inquiry is we would like to know this evening
if we are going to have more amendments offered so we know what is
going to take place tonight. We would like to finish the bill in a
reasonable period of time because energy is waiting whenever we finish.
Does the Senator from West Virginia have an idea how many more
amendments he might wish to offer? From the Republican side, we don't
have any of which I am aware.
Mr. BYRD. I cannot state the number of amendments I have. They are
not a great number, I can say that. I am mainly interested in having a
little debate on this bill, and mainly interested in getting some
answers from the proponents as to the costs that are involved. I may
support this bill. I have no reason to think I won't support it, if we
can arrive at some conclusion as to how much the restrictions and
requirements are going to cost.

We may pass a bill here that is, on the surface at least, a good
bill. Certainly, there is a compelling need to do the things that this
bill seeks to do. But as an appropriator, as the chairman of the
Appropriations Committee--and not only that, I should think that all
Senators would be interested in knowing how much this is going to cost
and what assurances we have that we will have the money with which to
pay it.
Also, I want to know whether the deadlines--and there are several
deadlines in the bill--can be met. If we pass legislation that cannot
be enforced because it has deadlines that are not enforceable, then the
American people are going to be disappointed--if we pass legislation
raising their expectations and then those expectations are not met.
I do not say this with criticism of any particular Senator, but as
one who appropriates money here, and as one who sought to get
appropriations last December for these very purposes, and as one who
saw that those two amendments that I offered--one on one bill and the
second one on the final appropriations bill--saw those amendments
knocked out by virtue of 60-vote points of order. Certainly the Senator
from Massachusetts supported me in those.
I wonder, now, from where the money is going to come? I want to feel
that the President is going to support this, support the requests for
it, support the moneys for it, and that Senators who voted against my
amendments last fall--that were for border security, that were for
homeland security, that were to provide defenses against biological,
chemical, and radiological weapons--are going to support it this time.
I want to know from where the money is going to come, how much it is
going to cost. That is all. I am ready to pass it tonight if somebody
can show me those things. I do have two or three amendments that deal
with the deadlines. I may have a somewhat more major amendment. I may
not have.
Mr. REID. I say to the Senator from West Virginia, I have conferred
with the manager of the bill, Senator Kennedy. As I indicated, we have
no amendments on the Republican side and none over here. The reason we
are focusing on the Senator from West Virginia is we want to be able to
get to energy as soon as possible. So I hope, either through a quorum
call--maybe with time for Senator Kennedy to explain to the Senator--I
know I listened to Senator Kennedy and Senator Feinstein speak at some
length on this legislation.
If there are other questions to be answered, certainly the Senator
from West Virginia is entitled to have answers to those questions
before we vote on this important bill. Whatever the two very
experienced and distinguished Senators need to do to make sure the
Senator from West Virginia has the information he needs, we should do
that as quickly as possible.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, just to review very quickly, since we
have been asked about this once again, for the costs. That $1.2 billion
1-year, $3.2 billion total cost of the implementation--the $743 million
is included in the President's 2003 budget. This includes $380 million
for entry-exit data systems; $83 million for computer infrastructure;
$34 million for land inspectors; $51 million for air and sea port
inspectors; $145 million for border construction; $50 million for
detention construction. There is $444 million additional appropriations
needed but the legislation raises the additional fees.

[[Page S2657]]

The bill raises machine-readable fees to $65, generating approximately
$100 million in additional income.

We believe we can examine the fiscal year 2003 budget, which is, for
INS, $6 billion--$6 billion: $2 billion in terms of the fees and $4
billion in terms of appropriations. That is the best we can do.
But I think we have a pretty good downpayment on what we would do. We
are prepared, as my colleagues have all said, to make that commitment,
to try to ensure, in the remaining debate, that we would be able to get
the resources.
On the question of the border security amendments, we welcome the
chance to talk with the Senator--or with any other Senator--and review
the deadlines and the other damage provisions in the bill to tighten up
the restrictions. They include the changes in the passenger manifest
provision and student monitoring provisions. I think we ought to be
able to reach the agreements.
But we have set some times and some dates. We are talking about, for
example, in the biometric implementation, trying to make passports and
other documents so they are not subject to fraud. We now have the
biometric information, but decisions have to be made as to which one
offers the best possibility. We have the technology, then, to develop
the machines to put them at the border. That takes some time. If we are
talking about a year from this October--if is not the right time, the
correct time, we want it to be done as quick as possible.
But what we have included in here represents, at least the best
judgment of the Homeland Security Office; the Biometric Institute; and
the NIST, the National Institute of Standards and Trade, which is the
technology arm of the Commerce Department that makes the judgments, for
example, in the small business innovative research, about all the new
kinds of technologies. If there is other information that would support
a different timeframe, we are prepared to do this, but I think we have
reached that date for the reasons I have explained.
I will mention, on the question of the students, how we monitor the
students when they come in here, because I think it is very important
to understand exactly what we are doing on this. First of all, when the
students come in, the State Department receives the first electronic
evidence of acceptance from an approved U.S. institution, prior to
issuing a student visa. The State Department then must inform the INS
that the visa has been approved. The INS must inform the approved
institution that the student has been admitted into the country. Then
the approved institution notifies the INS when the student has
registered and enrolled; and if the student doesn't report for classes,
the school must notify the INS not later than 30 days after the
deadline for the registration for classes.
You can say that is complicated and difficult. It is. Unless you go
to the new technology, it is impossible. But we have been assured, with
the new technology, that kind of process is possible.
We have been informed by the universities that they believe it is
workable. Maybe there is a different way of doing this. There are
different timeframes for notification. But those are the ones we have
worked out with the various groups and institutions that are most
involved in this.
As I say, we are glad to go down the list of the timeframes. I know
my colleagues and I are glad to go down the list to at least give the
justification. We have not arrived at these particular dates in a
uniform way. There was some difference in terms of the time--whether it
can be done in 180 days, or whether it can be done in a shorter period
of time. There was some difference on that. I think there was no
difference on the desire for all of us to get it done in the quickest
possible time and to do it in the quickest possible responsible time.
That is uniform. If there can be a change or an alteration in the
establishment of the number of days, we are glad to talk about it.
There is no magic on the times we set, although they do represent the
agreement with our colleagues, and also with the administration I
believe that had some difference as well. Those are just some of the
responses.
If I could have the attention of my colleague from West Virginia, if
we could know what the other amendments are as we are coming into the
evening on Monday, we would be able to sort of have a chance to fully
evaluate them in order to be able to accept the ones that work
consistent with our legislation; we could try to work those out. Then
we would be glad to have a good discussion and debate on the floor.
But, as the Senator indicated to us, he has several other amendments.
He just withdrew one, which we didn't have. We have no idea what the
other ones are, either. We are doing the best we can. We were here on
Friday afternoon. We had a good hearing on Friday morning with the
Senator.
But we are here and we are prepared to try to deal with those. We
will have a chance to examine this one on forced labor in China, which
we did not know was going to be an amendment. If the Senator has others
that he is willing to share with us, perhaps we can move this process
along to try to accommodate our other colleagues.
I was here over the weekend. I plan to be here. I know my colleagues
were as well. We are just trying to indicate to our colleagues what our
situation is.
I yield the floor.
Mr. BYRD. Mr. President, in response to the distinguished Senator,
this Senator is willing to share any of these amendments with the
Senator. I have already shared with the Senator the amendment which I
asked to withdraw. I was under the mistaken impression that my staff
had discussed this with his staff. I am not seeking to pull any tricks
here. As was said in Julius Caesar, there are no tricks in pure and
simple faith. I don't have any tricks. I am not seeking to pull any
fast ones on the Senator. I would be glad to show any of my amendments
to him. I have but a few amendments. It was an honest mistake, and I
was quick to apologize for it when he mentioned it. I hope that settles
that. There are no more like that. I would be happy to discuss with the
Senator the amendments that I have. That pretty much settles it. I
can't say that we can do these tonight. I don't think they can be done
tonight.
Mr. KENNEDY. That is fine. We had the chance to look over this first
one. If we could have the other ones, if the Senator wants to share
those, we would welcome the opportunity to see them. But we have not
received any others from the Senator.
Mr. BYRD. Mr. President, I spoke in my speech about the problems that
I have. The amendments I have deal with those deadlines. There was one
other amendment that I am not sure I am going to offer, but I do need
to discuss it with him. It has to do with the Office of Homeland
Security. But I am not sure I will offer it on this bill. I may offer
it on an appropriations bill, or I may not offer it at all, depending
on how the leader feels about it and how Senator Lieberman feels about
it. But it can be determined overnight as to whether or not I intend to
offer that. The other amendments deal, as I recall, with visa waiver
deadlines, student penalties, and so on. I discussed the amendment in
my statement earlier. I would be happy to discuss these with the
Senator, or through my staff. On tomorrow, we can probably deal with
them, if we can't deal with them tonight.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. KYL. Mr. President, if it would be helpful to the Senator from
West Virginia, I would be happy to address the deadline issue that he
discussed. The Senator from West Virginia raises a good question with
respect to those deadlines. Frankly, on two of the three, there is no
good answer. The Senator is absolutely correct about that.
Mr. BYRD. I didn't understand the Senator.
Mr. KYL. I am sorry. It was my understanding that the Senator from
West Virginia raised a question about three of the deadlines in the
bill, and on two of the three there is no good answer. I will give the
best answer I can.
On the first one, I think there is a good answer. That has to do with
the so-called standards for biometrics. On that, there seems to be a
pretty good consensus. That can be developed within the year timeframe
that we have in the bill. The Biometric Foundation has provided that
information to us.
But the Senator is absolutely correct about the readers--the
machines--that

[[Page S2658]]

will have to read the passports or other documents that have this data
embedded in them.
As to precisely how long it will take to get those online, there is
not a good specific answer, nor is there an answer as to when we can
have the interoperable system developed, which is one of the central
features of the bill. That is the system that takes data from the FBI,
the CIA, and others and makes it available to the consular offices that
have to issue the visas.
In fact, I was just speaking with the FBI Director this afternoon
about what we can do to make this happen as quickly as possible. As
Senator Kennedy said, everybody wants to make it happen as soon as
possible. The question is how to do that. I will share with the Senator
from West Virginia some of thinking that went into our putting in those
dates. If the Senator has other ideas, we can certainly discuss them. I
regret to say that there has been an attitude among some people at the
INS that perhaps it has not been--to use the military phrase--as
forward leading as some of us would like to see in terms of their
willingness to tackle some of these problems. I am trying to say it
nicely. There are a lot of people who work at INS who really work hard,
and they are trying to do things on time. But I must say that there
hasn't necessarily been the so-called can-do attitude that some of us
would like to see. When we asked them can you do this, or could you do
that, what you get back in response is that may take a long time. That
is going to be really hard.
Naturally, we would like to see them take the bull by the horns and
say, We will do our best to get that done as quickly as we can. That is
the answer we are looking for. We don't necessarily get that.
Frankly, what went into some of our thinking in putting some of these
deadlines in--they may be pretty tough deadlines to meet--was let us
get those deadlines in there so the people at INS are going to have to
work hard to try to meet the deadlines. They know that we mean business
and we are trying to get this done as soon as we can. They may not be
able to meet the interoperable system deadline or the readers deadline,
both of which are October 26, 2003.
Mr. BYRD. Will the Senator yield?
Mr. KYL. Our thinking in putting those deadlines in was to try to
give them something to shoot for so we could at least get them going to
try to get it done as soon as possible.
Mr. BYRD. Mr. President, will the Senator yield?
Mr. KYL. Yes.
Mr. BYRD. Mr. President, what suggestion does the distinguished
Senator have as to how we might deal with this problem that I
referenced?
Mr. KYL. Mr. President, the Senator partially answered that question
in previous comments he made. The first is to put a deadline in there
that they have to shoot for rather than just, in effect, saying,
``well, whenever you can,'' because that will probably result in delay.
Second, we have to fund the programs adequately. The Senator from West
Virginia made the point at a hearing we had the other day--he made the
point earlier, and he made the point again today, and the Senator from
West Virginia is absolutely correct--that we have an obligation, as the
Senate then, to fund this to the extent that will be necessary.

We think we have the elements of that built in here, but that will be
the other half of what has to be done.
Mr. BYRD. Mr. President, if the Senator will yield further?
Mr. KYL. I certainly will continue to yield.
Mr. BYRD. Well, it has been said on the floor, more than once today,
that the anticipated cost of the bill, as I understand it, would be
about $1.1 billion the first year and $3----
Mr. KYL. About $3.2 billion.
Mr. BYRD. That is $3.2 billion for 3 years.
Mr. KYL. If I could, Mr. President, specifically, $3.132 billion. But
almost $3.2 billion, yes.
Mr. BYRD. And it has also been said that the President asked for $743
million, is that it? Is that the figure?
Mr. KYL. Yes, Mr. President, the Senator is exactly correct.
Mr. BYRD. Well, my problem is, if you multiply the $743 million by 3,
that is going to be roughly $2.1 billion. And yet the figure that has
been used on this floor for the third year is $3.1 billion. So right
there we are $1 billion short.
So my question is, How do we bridge these gaps? How do we assure the
Senate today that we will be able to appropriate that kind of money?
And if we do not appropriate that money, these deadlines are not going
to be met, I don't believe.
Mr. KYL. Mr. President, I am happy to yield to the Senator from
Kansas.
Mr. BROWNBACK. If I could respond briefly on this, Senator Kennedy
and I have the subcommittee with the primary jurisdiction on this. As
to the figures being put forward, one is the first-year cost and the
other is the total cost of implementation. Much of the cost involved
here is for equipment because we are getting the biometric equipment
up. We are getting it in position, in place, and that is why there is
the difference in the figure. It is not an even figure over each of the
3 years. That is what is involved in that question that you raise.
If I could also respond on the deadline dates because I think the
Senator from West Virginia has put his finger on a very important
topic. This was a matter of extensive negotiation between the various
people involved because these are very aggressive dates. A number of
people in the administration raised the concern saying: This is too
aggressive. We don't think we can meet this. Other people within the
administration were saying: It may be too aggressive, but we need to
meet it, and we are going to push to meet it. There were differences of
opinion on that.
We, as the Members who were negotiating and trying to work this out,
decided to go with the earlier date because of the importance of the
issue. It is just critical we get this interoperable equipment in
place, and that we get it done as quickly as possible, and not be left
in a calendar position further down the road than it needs to be or
just open-ended, saying, ``just do it as soon as you can.'' A number of
the Members did not feel comfortable with that ``do it as soon as you
can'' possibility, even though we thought there was a pretty strong
commitment from the administration to do it just that way, to do it as
soon as you can.
But a lot of our colleagues said: No. We want a hard date, an
aggressive date. If we have to come back and work with it again, we
will, but we want this thing done; and we want it done now.
That is why the aggressive dates, and that is also why the budgetary
figures are different for year 1 than being equal throughout the 3
years.
I yield the floor to my colleague from Arizona.
Mr. KYL. Mr. President, the main point is, on the question of the
deadlines, the Senator from West Virginia raises an absolutely valid
point. The question is, What should we do with regard to two of the
dates? I think we can pretty clearly meet the first one. And we have a
choice of setting a later date and, therefore, maybe not spurring them
to action within a timeframe that really we need to, or setting a more
aggressive date which, of course, we can always extend if we are not
able to meet it.
But there is one other point; that is, the Senator is also correct,
we are going to have to get another request from the administration in
the final year in the administration's budget to adequately support
this. Having the earlier date focuses, then, on getting that money in
their budget, so the chairman of the Appropriations Committee has the
ability to then plan and incorporate that into the overall budget.
So that is part of the rationale. It is nothing more magic than that.
If the Senator agrees with us--and I think he does--that it is
important for us to get going as soon as possible, then perhaps he can
accept that rationale, at least for this first year, and then we can,
of course, see what happens after that.
Mr. BYRD. I certainly can understand what the distinguished Senator
is saying and the reasoning behind the decisions that were made. I am
only saying, as I said at the very beginning, if we pass legislation
that creates unreasonable expectations on the part of the American
people, we lose credibility, our Government loses credibility, and the
people lose faith in their

[[Page S2659]]

Government. That is what Hamilton was worrying about in the Federalist
Paper No. 25, which I read earlier this afternoon.
But now about this money that I talked about, it has been said here
there is $743 million in the President's request. But we are talking
about 3 years--3 years; that if it were $743 million a year, that would
be something like $2.1 or some such billion. Yet the estimated cost for
the third year here, as I am told, as I am hearing here, is $3.1 or
$3.2 billion. So it seems to me that is $1 billion short there.
Mr. KYL. If I could respond to the Senator, the $3.2 billion is the
estimated total cost over the 3-year period of time. And as Senator
Brownback said, the request would not come in three equal tranches. So
you would not multiply $743 million times 3. The administration would
have to include in its next budget an amount of money to make up the
difference.
Now, there is, we are informed, $327 million not yet expended from
the $40 billion supplemental, some or all of which might be made
available in the first year, which comes close to meeting the $1
billion amount. But the Senator from West Virginia is correct, there
will have to be an amount included in the budget in the subsequent year
to reach the $3.2 billion. That is correct.
Mr. BYRD. I do not have any assurance that money is going to be
included. We do not have any assurance it will be. The President only
requested $37 million, I believe it was, in his supplemental, out of
$27 billion; $35 million for border security--I mean, for the INS. So
there we are.
Mr. KYL. If I could respond to that, to some extent, it is a chicken-
and-egg proposition. You have to have an authorization before you can
have an appropriation. And the administration merely has the benefit of
both. It can put something in the budget which then encourages us to do
an authorization or it can respond to an authorization which the
Congress passes.
The intent here, since we have been working with the administration,
is for the Congress to authorize a program which the administration
then is supposed to carry out, and that would include an inclusion in
the next budget of an amount of money sufficient to fund the
authorization that we provide.
Then the chairman of the Appropriations Committee would have the
jurisdiction to determine how much of that to fund in the
appropriations request.
But the idea here is to authorize the program, which gives direction
to the administration as to what we want it to do. Hopefully, that
direction would be then to include that money in the budget. I
certainly would be encouraging them to do that.
Mr. BYRD. I am sure the Senator would.
If I may, Mr. President, just take a further minute.
For fiscal year 2003, the President has proposed increasing
nondefense programs by only 1 percent. He has threatened to veto
appropriations bills that have ``excessive spending.'' For the INS, he
has proposed an increase of only $150 million or about a 2-percent
increase.
That is not even enough to cover inflation. So if we must do more for
the INS, what are we supposed to cut? What are we going to cut if we do
more than that for the INS? Veterans programs? Are we going to cut
veterans programs? Are we going to cut education programs, highways,
programs to promote our energy independence, programs dealing with the
environment? What do we cut? If we don't do that, we run afoul of the
President's threat to veto appropriations bills.
I thank all Senators for listening. I yield the floor.
The PRESIDING OFFICER (Mr. Carper). The Senator from Arizona.
Mr. KYL. Mr. President, I inquire of the Senator from West Virginia,
is it correct that it was not only defense but homeland security that
is above and beyond the 1 percent; and if that is the case, then could
not this money be included within the homeland security part of the
budget?
I am not certain, but I believe the 1 percent does not include the
homeland security requirements.
Mr. BYRD. The Senator is correct, but if we do more for homeland
defense, then we are restricted by the President's figures, what he has
asked. Then we have to take the money out of something else. So what
does it come out of? Veterans programs, education, the environment,
energy? That is our dilemma. I thank the Senator.
Mr. BROWNBACK. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

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