[Congressional Record Volume 152, Number 25 (Thursday, March 2, 2006)]
[Senate]
[Pages S1646-S1647]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN (for herself, Mr. Kyl, Ms. Cantwell, Mr. Frist, 
        Mrs. Boxer, Mrs. Hutchison, Mr. McCain, Mr. Domenici, and Mr. 
        Bingaman):
  S. 2355. A bill to amend chapter 27 of title 18, United States Code, 
to prohibit the unauthorized construction, financing, or reckless 
permitting (on one's land) the construction or use of a tunnel or 
subterranean passageway between the United States and another country; 
to the Committee on the Judiciary.
  Mrs. FEINSTEIN. Mr. President, our borders are our Nation's first 
line of defense. They are the key to our homeland, and ensuring their 
integrity is vital to our national security.
  But there are some who seek to create a means of entering our country 
illegally. For years, they've tried to go around the border 
checkpoints. Now they are trying to go under them through sophisticated 
border tunnels.
  In fact, there have been 40 border tunnels financed and constructed 
since 9/11--to move humans, drugs, and weapons under the border. 
Twenty-one of these were on the California-Mexico border--eight since 
January of this year.
  This is a serious issue not just for San Diego and California, but 
for the entire country.
  Surprisingly, there is no law on the books now that makes it a crime 
to construct, finance, build, or use a tunnel into the United States.
  Last week, I toured a recently discovered tunnel in San Diego with 
San Diego Mayor Jerry Sanders, Police Chief Bill Lansdowne, Sheriff 
Bill Kolender and various Federal Government officials from the 
Department of Homeland Security.
  This tunnel is the largest, most sophisticated underground passageway 
ever discovered; approximately half a mile long (8 football fields); at 
its deepest point, more than nine stories below ground; equipped with a 
drainage system, cement flooring for traction, lighting, and a pulley 
system; disguised as a produce distribution company known as ``V & F 
Distributors, LLC''; and accessible only through a small office inside 
this warehouse, covered by four square tiles.
  The Bureau of Immigration and Customs Enforcement began investigating 
the case two years ago, and raided the tunnel last month from the 
Mexican side not knowing if or where an opening on the U.S. would be 
found. They discovered over 2,000 pounds of marijuana on the Mexican 
side of the border and approximately 300 on the U.S. side.
  The legislation which I am introducing today--joined by Senator Kyl 
as the Republican lead, as well as Senators Frist, Cantwell, Boxer, 
Hutchison, McCain, Bingaman and Domenici--throws the book at those who 
build these tunnels and subterranean passageways into the United 
States.
  It would: criminalize the construction or financing of an 
unauthorized tunnel or subterranean passage across an international 
border into the United States with a term of imprisonment up to 20 
years; punish those who recklessly permit others to construct or use an 
unauthorized tunnel on their land with a term of imprisonment of up to 
10 years; punish those who use a tunnel to smuggle aliens, weapons, 
drugs, terrorists, or illegal goods by doubling the sentence for the 
underlying offense; in addition to imprisonment, ensure that assets 
involved in the offense, or any property traceable to the offense, may 
be subject to forfeiture; and instruct the U.S. Sentencing Commission 
to promulgate or amend sentencing guidelines to provide for criminal 
penalties for persons convicted under this bill, and to take into 
account the gravity of this crime when considering the base offense 
levels.
  The legislation is critical. We must secure every aspect of our 
borders.
  Since 9/11: forty border tunnels have been discovered in the United 
States; all but one have been on the southern border; twenty-one of the 
tunnels were along the California-Mexico border; eight of the tunnels 
were discovered in San Diego since the beginning of the year; these 
tunnels range in complexity from simple ``gopher holes'' a few feet 
long at the border to massive drug-cartel built mega-tunnels, costing 
hundreds of thousands to millions of dollars to construct.
  The need for this legislation is urgent. We must secure every aspect 
of our borders, including those we can't always see. And it is in our 
national security interest that we find these tunnels and prosecute 
those who construct, finance or recklessly permit the use of these 
tunnels on their land or property to the fullest extent of the law.
  I ask unanimous consent that the text of the legislation be printed 
in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 2355

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Border Tunnel Prevention 
     Act''.

     SEC. 2. CONSTRUCTION OF BORDER TUNNEL OR PASSAGE.

       (a) In General.--Chapter 27 of title 18, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 554. Border tunnels and passages

       ``(a) Any person who knowingly constructs or finances the 
     construction of a tunnel or subterranean passage that crosses 
     the international border between the United States and 
     another country, other than a lawfully authorized tunnel or 
     passage known to the Secretary of Homeland Security and 
     subject to inspection by the Bureau of Immigration and 
     Customs Enforcement, shall be imprisoned for not more than 20 
     years.
       ``(b) Any person who recklessly permits the construction or 
     use of a tunnel or passage described in subsection (a) on 
     land that the person owns or controls shall be imprisoned for 
     not more than 10 years.
       ``(c) Any person who uses a tunnel or passage described in 
     subsection (a) to unlawfully smuggle an alien, goods (in 
     violation of section 545), controlled substances, weapons of 
     mass destruction (including biological weapons), or a member 
     of a terrorist organization (as defined in section 
     212(a)(3)(B)(vi) of the Immigration and Nationality Act (8 
     U.S.C. 1182(a)(3)(B)(vi))) shall be subject to twice the 
     penalty that would have otherwise been imposed had the 
     unlawful activity not made use of such a tunnel or 
     passage.''.
       (b) Clerical Amendment.--The table of sections for chapter 
     27 of title 18, United States Code, is amended by adding at 
     the end the following:

``Sec. 554. Border tunnels and passages.''.

       (c) Criminal Forfeiture.--Section 982(a)(6) of title 18, 
     United States Code, is amended by inserting ``554,'' before 
     ``1425,''.

     SEC. 3. DIRECTIVE TO THE UNITED STATES SENTENCING COMMISSION.

       (a) In General.--Pursuant to its authority under section 
     994 of title 28, United States Code, and in accordance with 
     this section, the United States Sentencing Commission shall 
     promulgate or amend sentencing guidelines to provide for 
     increased penalties for persons convicted of offenses 
     described in section 554 of title 18, United States Code, as 
     added by section 1.
       (b) Requirements.--In carrying out this section, the United 
     States Sentencing Commission shall--

[[Page S1647]]

       (1) ensure that the sentencing guidelines, policy 
     statements, and official commentary reflect the serious 
     nature of the offenses described in section 554 of title 18, 
     United States Code, and the need for aggressive and 
     appropriate law enforcement action to prevent such offenses;
       (2) provide adequate base offense levels for offenses under 
     such section;
       (3) account for any aggravating or mitigating circumstances 
     that might justify exceptions, including--
       (A) the use of a tunnel or passage described in subsection 
     (a) of such section to facilitate other felonies; and
       (B) the circumstances for which the sentencing guidelines 
     currently provide applicable sentencing enhancements;
       (4) ensure reasonable consistency with other relevant 
     directives, other sentencing guidelines, and statutes;
       (5) make any necessary and conforming changes to the 
     sentencing guidelines and policy statements; and
       (6) ensure that the sentencing guidelines adequately meet 
     the purposes of sentencing set forth in section 3553(a)(2) of 
     title 18, United States Code.
                                 ______