[Congressional Record Volume 153, Number 37 (Monday, March 5, 2007)]
[Senate]
[Pages S2588-S2593]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
IMPROVING AMERICA'S SECURITY ACT OF 2007--Continued
Amendment No. 328, as Modified
Mr. LIEBERMAN. Mr. President, I ask unanimous consent that amendment
No. 328 be modified, with the changes at the desk.
The PRESIDING OFFICER. Without objection, the amendment is so
modified.
The amendment, as modified, is as follows:
(Purpose: To require Amtrak contacts and leases involving the State of
Maryland to be governed by the laws of the District of Columbia)
On page 299, between lines 2 and 3, insert the following:
SEC. 1337. APPLICABILITY OF DISTRICT OF COLUMBIA LAW TO
CERTAIN AMTRAK CONTRACTS.
Section 24301 of title 49, United States Code, is amended
by adding at the end the following:
``(n) Applicability of District of Columbia Law.--In the
case of Maryland, any lease or contract entered into by the
National Railroad Passenger Corporation after the date of the
enactment of this subsection shall be governed by the laws of
the District of Columbia.''.
Mr. LIEBERMAN. I thank the Chair, and I yield the floor.
Mr. COBURN. Mr. President, I ask that the pending amendment be set
aside.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 325 to Amendment No. 275
Mr. COBURN. Mr. President, I call up amendment No. 325.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Oklahoma [Mr. Coburn] proposes an
amendment numbered 325.
Mr. COBURN. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To ensure the fiscal integrity of grants awarded by the
Department of Homeland Security)
On page 106, preceding the matter on line 7, insert the
following:
SEC. 204. COMPLIANCE WITH THE IMPROPER PAYMENTS INFORMATION
ACT OF 2002.
(a) Definitions.--In this section, the term--
(1) ``appropriate committees'' means--
(A) the Committee on Homeland Security and Governmental
Affairs of the Senate; and
(B) the Committee on Oversight and Government Reform of the
House of Representatives; and
(2) ``improper payment'' has the meaning given that term
under section 2(d)(2) of the Improper Payments Information
Act of 2002 (31 U.S.C. 3321 note).
(b) Requirement for Compliance Certification and Report.--
The Secretary shall not award any grants or distribute any
grant funds under any grant program under this Act or an
amendment made by this Act, until the Secretary submits a
report to the appropriate committees that--
(1) contains a certification that the Department has for
each program and activity of the Department--
(A) performed and completed a risk assessment to determine
programs and activities that are at significant risk of
making improper payments; and
(B) estimated the total number of improper payments for
each program and activity determined to be at significant
risk of making improper payments; and
(2) describes the actions to be taken to reduce improper
payments for the programs and activities determined to be at
significant risk of making improper payments.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. COBURN. Mr. President, by our estimates, this bill is about $17-
plus billion. As I said, it has not been scored. The House bill that
will be merged with this in conference is over $20 billion. That is a
large chunk of change for the American taxpayer. What we know is a lot
of the grants which make up about $3-plus billion a year over the next
5 years of the vast majority of this bill will be homeland security
grants of one type or another. What we know is the Department of
Homeland Security has not followed the law when it comes to improper
payments.
What the Improper Payments Act of 2002 required of every agency of
the Federal Government was that they perform a risk assessment of every
program they have, that they develop a statistically valid estimate of
improper payments, that they develop a corrective action plan, and they
report the results of those activities to us.
This is not an optional plan for the agencies. Yet this plan has been
ignored since its inception and since the creation of the Department of
Homeland Security. We are getting ready to send another $17- to $18
billion-plus out the door for homeland security grants--that is the
majority of this--and we know the Department of Homeland Security is
not in compliance with the Federal law.
The reason the law exists is to make sure we get good value for the
taxpayers' money. The year 2004 was the first year the agencies were
required to respond to this act. It is worth noting again that there is
not an agency of the Federal Government, not one agency, that is exempt
from this law. This is not a request. This is a statutory requirement
of every agency.
The Department of Homeland Security has not even complied with the
first step of this law. They have not performed risk assessments for
the programs to be of significant risk of making improper payments.
They are an at-risk program according to the analysis, yet they have
not even looked to do a risk assessment. The Government Accountability
Office has found at least six major programs at this Department are out
of compliance with the Improper Payments Act. The Department of
Homeland Security's independent auditor has repeatedly cited
noncompliance, and the Department of Homeland Security continues to
face significant challenges with FEMA and the Individual and Households
Program.
Based upon the Department's performance and accountability report and
their independent auditor assessment, the following programs are out of
compliance with the improper payments act: Customs and Border
Protection; Office of Grants and Training; Federal Air Marshals--the
Coast Guard was supposed to have done a performance evaluation and risk
assessment but it has not been done; FEMA; the Transportation Security
Agency; and Immigration and Customs Enforcement. Not one of them has
performed the first risk assessment as to improper payments.
In case you think that is not a lot of money, we have already spent
over $25 billion in grants through the years for these programs, of
which we have not looked at the problem accounts. The press is replete
with problems in terms of these grants: $9 billion on State and local
preparedness grants--that is what we get from DHS. Secretary Chertoff
at the most recent hearing said $5 billion of the money, another $5
billion--part of which has been obligated but has not gone out the door
yet.
I think we owe it to the American people, if there is a law on the
books, before we send more money out the door the agency ought to
comply with the law. They ought to at least do a risk assessment. If
there is no risk, that is fine. Then they will have complied with the
law. But if there is risk, we ought to be identifying the risk. Every
dollar we spend wastefully is a dollar we don't use to protect
ourselves in terms of our security.
KPMG was the independent auditor for 2004, 2005, and 2006 for the
Department of Homeland Security. In each one of those years they were
out of compliance with this act. Specifically, the Department is cited
for not instituting a systematic method of reviewing all practices and
identifying those believed to be susceptible to erroneous, improper
payments. The most important part of the Improper Payments Act is to
create the process of good, strong oversight within the Department to
make assessments about whether they are making improper payments. What
this assessment does is it identifies where those improper payments
could have been made, and that is essential to find out where the
problems exist.
This amendment does not debate any of the merits of the Department's
programs. It simply demands compliance with the transparency and
accountability measurements that already exist under current law. If we
want the American people and the executive branch to take us seriously,
Congress must demand compliance with the laws that are laws. We cannot
back off.
[[Page S2589]]
This amendment is not a surprise to the Department of Homeland
Security. They know they are failing and they need to respond to it.
This amendment in no way jeopardizes State funding. Let me tell you
why. It is because there is a pipeline of 9 to 12 months in the works
already on grants that are going there. For this to have any impact
would mean they would have to not respond for another year before those
grants would be in jeopardy. Some of my colleagues say, You can't do
this. You can't put these grants at the risk of noncompliance of an
agency in terms of meeting the law. The question ought to be, Why not?
Why shouldn't we put the agency at risk with their grants for being
noncompliant?
The other point I make is most of these grants go to States and
localities. The problem with the grants is there is some culpability on
the part of the States and the localities in terms of these grants. The
States are not totally innocent. There is $2.5 billion that has not
even been awarded yet that still can be awarded before this takes
effect. So there is still another $5 billion, which is greater than the
amount we spend in any one year on these grants. What this amendment
says is they cannot go past that unless they have complied with the
law.
If we are not going to agree to this amendment, then we need to trash
the Improper Payments Act. If we are not going to say the Department of
Homeland Security has an obligation to follow the law, then we ought to
take the law off the books. We know for sure in the other areas of the
Federal Government we have somewhere between $40- and $80 billion worth
of improper payments. We know we have $40 billion of improper payments,
overpayments, in Medicare; somewhere close to $30 billion in Medicaid.
We have a third of the Earned Income Tax Credit that we know were
improper payments and we have only looked at 40 percent of the
Government; 60 percent of the Government still isn't complying.
We ought to say right now if we are going to put more money through
the door, the American taxpayer ought to have value for the money they
send through that door. What we are saying is we want them to be
accountable, to be accountable as an agency of the Federal Government.
There ought to be transparency. We ought to be able to see where they
are making mistakes and where they are not. The question of not even
asking the question is what we are debating with this amendment; they
are in absolute noncompliance with the Federal law that requires them
to be compliant about whether their grants are improperly paid or
funding other than what they expected to fund.
Investigation showed FEMA spent millions on puppet shows, bingo, and
yoga in south Florida. There is an article in the National Review, 7/
19/05, on homeland pork. Baltimore Sun, 5/29/05, chasing security with
dollars. The only transparency we have here is that there is a total
lack of transparency in the Department of Homeland Security.
Needless to say, this is a bill that goes far outside 9/11
recommendations. The 9/11 recommendations said all money should be risk
based. What we have turned around with the 9/11 bill, this one and what
had passed in the previous Congresses, is a way to dole out money to
States and not hold them accountable.
What this amendment says is you are going to have to start being
accountable. If we are going to send out another almost $20 billion in
terms of grants, Homeland Security ought to have to follow the law in
terms of improper payments.
Remember, these grants are not competitively awarded--which is very
different than the grants we have in almost every other Federal
program. The fact they are not competitive is another reason, a much
greater reason, for us to demand accountability and transparency at the
Department of Homeland Security. These grants are also not let on the
basis of risk. Some are. In some of these it will be down to .45
percent, others at .75, and a few at .25. Most of them have no local
match so there is no risk on the side of the States or the
municipalities that get these grants.
Just a note: The best way for Congress to practice spending
discipline is to demand that the agencies comply with the laws assuring
appropriated dollars are spent adequately, appropriately, and lawfully.
We have yet to do that with many agencies.
DHS is a good place to start. FEMA awarded $22.6 million for crisis
counseling for victims of Hurricanes Rita and Katrina--$22.6 million.
Katrina did not even hit Florida. Yet a large portion of that was spent
in Florida. There is no accountability. There was no risk assessment.
Was there a risk? They have not done the work we demand by the law and
what is being demanded of other agencies.
There was an article in the Florida Sun. I cannot vouch for its
accuracy, but where there is a little smoke there is some fire. Of the
$1.2 billion in aid that FEMA granted to individuals--not
municipalities or contractors but to individuals--affected by the
weather disasters between 1999 and 2004, the Florida Sun-Sentinel found
of $1.2 billion, at least $330 million of that went to people who did
not personally suffer any damage or disruption from the storms. That is
a fourth of the money out of that $1.2 billion. No wonder we have a
deficit. No wonder. Because we are not willing to take the time to
force an agency to do what they should be doing under the law.
I want to talk for a minute about this bill. The 9/11 Commission was
very succinct and direct, noting that we have tremendous
vulnerabilities and risks and exposures throughout this country. They
were very clear to state that money that comes out of Congress to
address those ought to be absolutely risk based. The House bill at
least is down to 0.25 percent for every State. What that gives us is
about 15 percent of the money is going to go to the States regardless
of their risk. So that is about $3.5 billion or $4 billion--no risk,
you are going to get Homeland Security grants even though you have no
risk.
Think about what we are going to ask ourselves if we have another
terrorist attack and it is in one of the high-risk areas and we have
sent, year after year after year, $4 billion to areas that do not have
a high risk and that money could have prevented that action.
With good fiscal discipline, we will best protect the people of this
country. I know the tendency of this body is to make sure you get
enough for you and to make sure you can go home and say we got this for
you. You pat yourself on the back. But I wonder how many of us will be
patting ourselves on the back when we buy things that are not
absolutely necessary with these grants that are going to States and we
ignore the very high-risk east coast, west coast, gulf coast, and the
large metropolitan areas in this country that need more money while we
are playing politics with 15 to 20 percent of the money. We will be
judged on that, and that judgment will not be a pretty picture.
This amendment simply says no funds can go for any of these grants
until FEMA and the Department of Homeland Security start complying with
the Federal statute, which is called the Improper Payments Act of 2002.
It is very straightforward.
What we will have raised is the fear that my State may not get some
money. They have a year to comply. They have plenty of time to do what
they have been asked to do. Senator Obama and I, this last year, over 8
months ago, sent a letter to the Department of Homeland Security asking
why.
I ask unanimous consent to print that letter in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Washington, DC, November 16, 2006.
Hon. Michael Chertoff,
Secretary, U.S. Department of Homeland Security, Washington,
DC.
Dear Secretary Chertoff: We are writing with regard to a
recent Government Accountability Office (GAO) report
concerning improper payments at the Department of Homeland
Security (DHS). The persistent pattern of improper payments
limits the Department's ability to respond to our nation's
most dire threats and hazards, and we seek assurances that
you are taking adequate steps to address this problem.
As you may know, the GAO released a report on November 14,
2006 assessing the compliance of government agencies with the
Improper Payments Information Act (IPIA) of 2002 (P.L. 107-
300). Congress passed and the President signed the IPIA with
the belief that the Federal government, as a steward of
[[Page S2590]]
taxpayer dollars, should safeguard these funds from improper
payments and make timely and accurate reports on the improper
payments that do occur, so that erroneous payments are not
repeated in the future.
Based on the recently-released GAO report, it appears that
DHS is not fulfilling its duty to address improper payments.
Specifically, the Department appears to have failed to
adequately perform the first step in reducing improper
payments--assessing which of its programs are at risk for
these payments. If an accurate risk assessment does not
occur, the Department's ability to reduce improper payments
is seriously compromised.
We understand that in the period evaluated by the GAO (in
DHS' Fiscal Year 2005 Performance and Accountability Report),
DHS identified no programs in the entire agency with a high
risk for improper payments. However, the GAO analysis of
certain DHS programs indicates that the Department has not
``institute[ed] a systematic method of reviewing all programs
and identifying those it believed were susceptible to
significant erroneous payments.''
For example, GAO points to the Individuals and Households
Program (IHP) within the Federal Emergency Management Agency.
Despite warnings of reported financial management weaknesses
in the IHP program from the DHS Office of Inspector General
and the Senate Committee on Homeland Security and Government
Affairs, DHS concluded that the program did not meet the OMB
standard for identifying programs susceptible to significant
improper payments--exceeding $10 million and 2.5 percent of
program payments. However, the GAO analysis of the IHP
program reveals improper payments of approximately $1
billion. In GAO's words, this ``dramatically different''
result--a difference of at least $990 million--far exceeds
the OMB requirement for a high-risk program.
In fact, this was the third year in a row that your
independent auditor reported IPIA noncompliance for DHS. If
DHS cannot accurately determine which of its programs are at
risk for improper payments, it cannot take further steps to
root out these payments. And if steps are not taken to root
out improper payments in an agency with an annual budget of
over $34 billion, American taxpayer dollars will be left
vulnerable to waste, fraud and abuse with funds that should
have been used to protect them.
Please provide us with an explanation of how the Department
failed to identify the IHP as a risk susceptible program
during the risk assessment process for fiscal year 2005,
potentially failing to account for as much as $990 million in
improper payments. We further ask that you provide details on
how the Department plans to institute an improved method of
reviewing all of its programs and identifying those programs
that are susceptible to improper payments, in accordance with
the letter and spirit of the law.
Please provide a response by December 15, 2006. Thank you
in advance for your consideration of this important matter.
Sincerely,
Barack Obama,
U.S. Senator.
Tom Coburn,
U.S. Senator.
Mr. COBURN. This letter was sent to Secretary Chertoff. The Federal
Financial Management Subcommittee of the Committee on Homeland Security
and Governmental Affairs had four hearings on improper payments. We
know what is required. We know they can do it. What the Congress has to
do is make them do it, if they want to spend the money. It is only
right for our children and grandchildren to get fair value for the
taxpaying public, as we send out this money.
I am a skeptic when it comes to this body, when it gets away from the
political porking that goes on. I am not sure this amendment will pass.
But if it doesn't pass, I will offer an amendment to get rid of the
Improper Payments Act because there is no reason to have a law that we
are not going to enforce. If we are not going to enforce it, why is it
on the books? It is similar to enforcing the borders. The law is there,
but we don't do it.
We have to be accountable to the American public to make sure that
agencies follow the law. This is a simple amendment that requires
Homeland Security to follow that.
By the way, we have not had an answer to this letter. It was dated
November 16. I spoke in error.
United Nations Funding
I want to correct something I said last week on the United Nations.
My numbers were wrong. We, in fact, do pay for about 22 percent of the
unified budget at the United Nations, and our total contribution is in
excess of $5 billion. I had the ratios right, I had the numbers wrong.
I want to correct that for the Record today.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alabama is recognized.
Amendment No. 305
Mr. SESSIONS. Mr. President, I call up amendment No. 305. I believe
it is already pending, having been offered by Senator McConnell.
The PRESIDING OFFICER. The amendment is pending.
Mr. SESSIONS. Mr. President, I ask unanimous consent that Senators
Craig, Inhofe, Isakson, and Coburn be made cosponsors of the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SESSIONS. Mr. President, it is critically important that we
clarify the role of State and local law enforcement officers in the
enforcement and apprehension of those who violate our immigration laws
and that we expand the National Crime Information Center interest. It
is critical that we have them participate because with expanded NCIC
capability, which I am surprised is not already being done, they can be
partners in Federal law enforcement efforts.
It would be in compliance with what the 9/11 Commission and other
reports have asked us to do. It is a loophole in the system today that
needs to be fixed.
The amendment I offer is a slimmed down version of the bill I offered
in the last Congress, the Homeland Security Enforcement Enhancement
Act. That was cosponsored by Senators Craig, Inhofe, and Isakson. The
ideas contained in the amendment have also been supported by Senators
Kyl and Cornyn. They included it in their immigration bill last
Congress. Senators Ben Nelson and Coburn included those provisions in
the Nelson-Sessions immigration enforcement bill in the last Congress.
Additionally, my amendment is almost word for word the provision that
the Senate Judiciary Committee included when it marked up the Senate
immigration bill last year and the provision that the full Senate voted
for when it passed S. 2611.
The first section of the amendment reaffirms what I believe to be the
existing inherent authority of State and local law enforcement to
assist the Federal Government in enforcing the immigration laws of the
United States during the normal course of carrying out their law
enforcement duties. The amendment specifically states that the
participation of State and local law enforcement personnel is not
required, not mandated by this legislation. It is 100 percent
voluntary.
Section 2 of the amendment deals with the listing of immigration
violators in the National Crime Information Center database. State and
local officers need easily accessible roadside access to critical
immigration information, just as they would do for citizens of the
United States who violate our laws. Officers routinely, when they stop
people on the road, run National Crime Information Center database
checks when they pull over suspects, speeders, or people they are
investigating for other crimes. The NCIC is their bread-and-butter
database. Today the immigration violators file of the National Crime
Information Center database contains information on deported felons,
alien absconders, and wanted persons, aliens with outstanding criminal
warrants. That is in the National Crime Information Center database.
But my amendment would direct that the Department of Homeland Security
work with the FBI to place additional information on certain
immigration violators into the already existing immigration violators
file.
The four categories of immigration violators whose information would
be entered are, one, aliens who have final orders of removal. That is
someone who has been apprehended, gone through a hearing, and a judge
has ordered finally that they be removed from the country for whatever
violation; two, it would cover aliens under voluntary departure
agreements who for one reason or another have signed an order that they
would voluntarily deport themselves or leave the country; No. 3, it
would cover aliens who are known to have overstayed their authorized
period of stay, the visa overstays; and No. 4, it would cover aliens
whose visas have been revoked. Sometimes people misbehave seriously.
Twenty-seven percent of our Federal penitentiary bed spaces today are
filled by noncitizens.
For some reason in recent years we are seeing a substantial number of
[[Page S2591]]
criminal aliens coming into the country. These are not bed spaces for
immigration law violations, not people waiting to be deported. These
are people who have been arrested, tried, or convicted of Federal
criminal laws such as drug dealing and assaults or smuggling, things of
that nature.
When State and local police officers encounter individuals during
their regular law enforcement duties, it is important that they know if
the individual in front of them falls into one of these violator
categories. Importantly, my amendment includes a new procedure for
removal of erroneous information from NCIC. If there is something
entered incorrectly, under the new procedures an alien may petition the
Secretary of the Department of Homeland Security or the head of NCIC to
remove any erroneous information that may have been placed in that file
to protect them from any unfair treatment.
These are recommendations that should already be law, but they are
recommendations made in the 9/11 Commission Report. We are all familiar
with those recommendations, and they have been included in the Hart-
Rudman report.
On page 384 of the 9/11 Commission Report, the Commission says:
Our investigations showed that two systemic weaknesses came
together in our border system's inability to contribute to an
effective defense against the 9/11 attacks: a lack of well-
developed counterterrorism measures as a part of border
security and an immigration system not able to deliver on its
basic commitments, much less support counterterrorism. These
weaknesses have been reduced but are far from being overcome.
On page 390, the report says:
There is a growing role for State and local law enforcement
agencies. They need more training and work with Federal
agencies so that they can cooperate more effectively with
those Federal authorities in identifying terror suspects.
In the fall of 2002, a year after the
9/11 attacks, the Council on Foreign Relations published the Hart-
Rudman report entitled ``America Still Unprepared, America Still in
Danger.'' That report found that one problem America still confronts is
that 700,000 local and State police officials continue to operate in a
virtual intelligence vacuum. The first recommendation of the Hart-
Rudman report was to ``tap the eyes and ears of local and State law
enforcement officers in preventing attacks.'' That is their first
recommendation, to ``tap the eyes and ears of local and State law
enforcement officers in preventing attacks.''
On page 19 the report specifically cited the burden of finding
hundreds of thousands of illegal fugitive aliens living among the
population of more than 8.5 million illegal aliens and suggested that
the burden could and should be shared with the 700,000 local, county,
and State law enforcement officers, if they could be brought out of the
information void.
So this amendment I am offering tightly targets 9/11 Commission and
Hart-Rudman report recommendations that we look at the growing role for
State and local law enforcement, that we move toward an immigration
system that can ``deliver on its basic commitments'' as a way to fight
terrorism, and that we ``tap the eyes and ears of local and State law
enforcement officers'' in an effort to find the hundreds of thousands
of fugitive aliens in the United States.
Most Americans would probably be amazed that is not occurring today.
In fact, a recent poll of 3 years ago was done on this very subject. It
found that a large majority of Americans believe that State and local
governments should be aiding the Federal Government in finding alien
fugitives. That is pretty commonsensical. In fact, a Roper poll found
that 85 percent of Americans agree and 65 percent strongly agree--those
are powerful numbers--that Congress should pass a law requiring State
and local governments and law enforcement agencies to apprehend and
turn over to INS, now ICE, illegal immigrants with whom they come in
contact. That is pretty strong data.
It is important to note that those responses were collected in answer
to questions about requiring State and local immigration enforcement
action. So it is very likely that a poll on this subject, one about
voluntary State and local assistance, would be even stronger.
Let me tell my colleagues about the problem that started my interest
in this area and prompted me to offer this amendment, as well as 3
years ago to push for a hearing, which was held on April 22, 2004, in
the Judiciary Committee entitled ``State and Local Authority to Enforce
Immigration Law, Evaluating a Unified Approach for Stopping
Terrorists'' and for me to author a Law Review article in April of
2005, along with my chief counsel on Judiciary, Cindy Hayden, that was
published in the Stanford Law and Policy Review, entitled ``The Growing
Role for State and Local Law Enforcement in the Realm of Immigration
Law.''
This is the reality. This is the problem we are dealing with. Police
chiefs and sheriffs in Alabama have begun to tell me, as I have
traveled the State and met with them frequently, and as I continue to
do so, that they have been shut out of immigration enforcement and that
they felt powerless to do anything about Alabama's growing illegal
immigrant population. I heard the same story wherever I went:
When we come across illegal aliens in our normal course of
duty, we have given up calling the INS, because they tell us
we have to have 15 or more illegals in custody or they will
not even bother to come and pick them up.
Even worse, Alabama police were routinely told that aliens could not
be detained until INS could manage to send someone. They were told they
just had to let them go. This is basically the policy all over America
today, I kid you not. If a local officer in virtually any State in
America stops someone for speeding or DUI and finds out they are here
illegally, they basically take no steps to even contact INS because
they only have 2,000 agents in the entire United States and they are
not going to come out there and get them. In fact, for other legal
reasons, they may have some doubt--although, frankly, not much--but
there is some doubt about what their authority might be.
Now, we have done some research into this and believe the legal
authority of State and local officers to voluntarily act on violations
of immigration law is pretty clear. If there is any doubt that State
and local law enforcement officers have any authority--and if there is
any, and there certainly is some today--Congress needs to remove that
doubt, which is what this amendment will do.
Basically, there is a split in the circuits. I will take just a
moment to explain. The Tenth Circuit on more than one occasion
concluded squarely that a ``state trooper has general investigatory
authority to inquire into possible immigration violations.'' As the
Tenth Circuit went on to say, there is a ``preexisting general
authority of state or local police officers to investigate and make
arrests for violations of federal law, including immigration laws.''
The Tenth Circuit went on to say, in 2001:
[S]tate and local police officers [have] implicit authority
within their respective jurisdictions ``to investigate and
make arrests for violations of federal law, including
immigration laws.''
Now, these Tenth Circuit cases made no distinction between criminal
violations and visa overstays, which are not criminal in nature but
civil. But the Ninth Circuit did. They concluded the civil violations
of a visa overstay did not amount to an offense of law that the local
law enforcement officer could arrest and detain for. It was in dictum,
not part of the central holding of that case. But that one piece of
dicta has created an impression throughout the country that has
impacted lawyers and police departments and sheriffs' departments all
over America.
They are telling their officers: Well, it might be that the person
you stop and is here illegally is a visa overstay and not someone who
came across the border illegally, and if you arrest them and detain
them, they might sue us, they might sue the city, they might sue the
police department. So they have established policies based on this
ambiguity that have effectively reduced the participation of local law
enforcement officers to a dramatic degree in the enforcement of
immigration laws. That is not appropriate. We can fix that. This
amendment would fix that.
The second problem the amendment deals with is the inadequate way we
share information on immigration matters with State and local police.
We have databases full of information on
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criminal aliens and aliens with final deportation orders, but that
information is not directly available to the State and local police
through their base system, the NCIC. Instead, officers are required to
make a special second inquiry to the Law Enforcement Support Center,
which is headquartered in Vermont, to see if the person they pulled
over is an illegal alien wanted by DHS.
Now, I have to tell you, they are not just carrying around in their
pocket those phone numbers anyway. They do not know how to do it. They
are not comfortable with it. It is not what they do every day. They are
not doing it. Besides, if they do and find out the person is illegal,
there is nothing much they can do but let them go anyway. So the
ability of the bread-and-butter NCIC database to convey to local police
who stop someone out on the highway information that this may be a
wanted person, maybe even a terrorist, has been severely impacted or
really is not effective in many different areas.
I have complained about this for some time, and some progress has
been made but not enough. To date, the Immigration Violators File of
the NCIC contains about 200,000 entries, and only about 107,000 of the
approximately 600,000 alien absconders are in the NCIC. I want you to
hear that. Only about 100,000 of the 600,000 alien absconders have been
entered into the NCIC.
So what does that mean? That means if a local police officer
somewhere stops a person who has been previously arrested for an
immigration violation and that person has been released on bail, as
often is the case, and ordered to return to court or to be deported--
and they frequently do not do so; they abscond; and there are 600,000
of those absconders out there, but only 107,000 of those records are in
NCIC, so a local police officer is not likely to find a hit for the
person before him--there will be a 1-in-5 chance of them getting that
hit.
That really needs to be fixed. For the life of me, I cannot see why
more progress has not been made. We have been talking about this for 4
or 5 years in the Senate Judiciary Committee with the Department of
Justice officials and ICE officials and FBI people who run the NCIC.
At the very least, NCIC should contain four types of immigration
information.
The first group: aliens with final orders of removal. If someone has
been ordered removed, they should not be in this country. They
sometimes leave the country and come back into the country and you get
a hit on that person. In other words, they have been ordered removed.
Why are they back in the country?
The second group that should be in there: aliens under voluntary
departure agreements. Some agree to leave voluntarily and sign an
agreement to that effect. They ought to be in there because they should
not have stayed in the country or, if they left, they should not have
returned.
The third group: aliens who are known to have overstayed their
authorized period of stay should be entered.
The fourth group: aliens whose visas have been revoked, for heaven's
sakes, ought to be in there.
If somebody is here improperly--maybe they have been associated with
some criminal enterprise; the ICE people have revoked their visa for
some reason; it would have to be significant, usually, for that to
occur--they ought to go in there because if they are stopped somewhere,
they should be detained and turned over to ICE; otherwise, the system
is not working.
Let me tell my colleagues--I know how this system works--if someone
had their visa revoked and had been ordered to be removed, trust me,
the ICE agents do not go out and walk the streets of Philadelphia or
Atlanta or Birmingham and look for them so they can deport them. They
do not do it. They are not even close to having the ability to do that.
Only the people for whom they have evidence who are extremely dangerous
is that done. That is very few. The way most people are caught is just
like everybody else in America who is caught who has absconded or run
off on bail. They get caught by getting picked up by police on a
traffic stop somewhere. The police officer runs their name and ID in
NCIC and a hit comes back; there is a warrant for his arrest in
Montgomery, AL, for armed robbery, and he locks him up.
If you are an American citizen and you get a reckless driving ticket
and you are ordered to appear in court at a given time and place and
you do not appear in court, they issue a warrant for your arrest.
Normally, the police officers do not go out and chase you down all over
and find you to arrest you. Normally, they put it in the NCIC
immediately on the assumption you will soon be stopped somewhere else
along the way and they will get a hit on you and somebody will put you
in jail because you have a warrant for flight out there or for jumping
bail. But we do not do that for noncitizens. A citizen, that will
happen to; a U.S. Senator, that will happen to but not somebody who is
coming to the country illegally. We do not do the same thing when they
jump bail on their charges.
So there are a lot of stories we can tell. I will just summarize a
number of them. It really caught the attention of the 9/11 Commission.
For example, Mohamed Atta, who is believed to have piloted American
Airlines Flight 11, which flew into the World Trade Center's North
Tower, and played a leading role in more than 3,000 deaths that
occurred that day, in July, just 2 months before the attacks, was
stopped by police in Tamarac, FL, and was ticketed for having an
invalid license. He ignored the ticket and a bench warrant was issued
for his arrest. When he was stopped for speeding a few weeks later in a
nearby town, the officer did not check, did not discover this warrant
had been issued and let him go with only a warning.
Now, OK, Atta had not yet become illegal. I believe at that time he
still was on a legal status. However, it was about to expire. I doubt
he would have returned to the immigration office to get it extended. He
would soon have been here illegally as a visa overstay. He could well
have been apprehended and identified before 9/11 had he done so.
That is the example I am trying to make. It could very well have been
decisive.
Also Hani Hanjour was, just 1 month before 9/11, stopped by police in
Arlington, VA, for driving 50 miles an hour in a 35-mile-per-hour zone.
He was in a Chevy van with New Jersey plates. He produced a Florida
driver's license. But he was the pilot of the American Airlines Flight
77 which crashed into the Pentagon.
A third hijacker was stopped by State police just 2 days before
September 11, also for speeding. Maryland State police stopped Ziad
Jarrah on Interstate 95 for driving 90 miles an hour in a 60-mile-per-
hour zone.
Well, we are not talking about academic matters; we are talking about
the fact that the alien database needs to be accessible to local
police. It might as well, for all practical purposes, be locked up in
some vault somewhere in secrecy, the way it is being done today. It is
not available to the people out there who need it.
The Hart-Rudman Commission raised that point, as did the 9/11
Commission. I have been told at hearings by the appropriate officials
that the NCIC system can handle the additional data. It will not
overburden the system. It will make this information readily and
immediately available to a police officer. He or she may have stumbled
onto a person such as Mohamed Atta on his way to commit a horrible,
unspeakable act of terrorism against the people of the United States.
That opportunity to make that arrest and to identify that criminal is
most important.
So that is the purpose of the amendment. I believe as people think
about it we will see the need for it. I have tried to get this done in
any number of different ways, but we have not quite gotten there yet. I
think there is a majority in the Senate, probably on both sides of the
aisle, who would support this when it is clearly raised. But as so
often tends to happen, matters that actually work to a significant
degree and will actually substantially increase the ability of our law
enforcement system to be effective are the things that do not become
law. It is almost like if it works, it will not pass. If you come up
with something that sounds good but will not work, that will get
passed.
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This needs to be done. In many ways, it will be a test of the Members
of this body.
Are we serious about enforcement of immigration laws? I think we are
becoming that way. I believe there is a growing understanding that
lawfulness needs to be returned to immigration. Without it, we are
going to continue to have an erosion of public confidence in our
system. We can do all of that. I ask that my colleagues consider this
amendment. I hope we will be able to move it forward as part of this
security legislation.
Mr. President, I yield the floor, and I note the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SESSIONS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 347 to Amendment No. 275
Mr. SESSIONS. Mr. President, I send an amendment to the desk.
The PRESIDING OFFICER. Is there objection to setting aside the
pending amendment? Without objection, it is so ordered.
The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Alabama [Mr. Sessions] offers an amendment
numbered 347 to amendment No. 275.
Mr. SESSIONS. Mr. President, I ask that this amendment be called up
and made pending.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To express the sense of Congress regarding the funding of
Senate approved construction of fencing and vehicle barriers along the
southwest border of the United States)
At the appropriate place, insert the following:
SEC. __. SENSE OF CONGRESS ON THE FUNDING OF FENCING AND
VEHICLES BARRIERS ALONG THE SOUTHWEST BORDER OF
THE UNITED STATES.
(a) Findings.--Congress makes the following findings:
(1) On May 17, 2006, by a vote of 83 to 16, the Senate
approved amendment 3979 sponsored by Senator Sessions to
Senate Bill 2611 (109th Congress), the Comprehensive
Immigration Reform Act of 2006, which required the Secretary
of Homeland Security to construct at least 370 miles of
fencing and 500 miles of vehicle barriers along the southwest
border of the United States.
(2) On August 2, 2006, by a vote of 94 to 3, the Senate
approved amendment 4775 sponsored by Senator Sessions to
House Bill 5631 (109th Congress), the Department of Defense
Appropriations Act, 2007, which included a provision to
appropriate $1,829,000,000 for the construction of 370 miles
of fencing and 461 miles of vehicle barriers along the
southwest border of the United States.
(3) On September 20, 2006, by a vote of 80 to 19, the
Senate approved House Bill 6061 (109th Congress), the Secure
Fence Act of 2006, which mandates the construction of fencing
and border improvements along the southwest border.
(4) On October 26, 2006, the President signed the Secure
Fence Act of 2006 (Public Law 109-367; 120 Stat. 2638), which
mandates that ``[n]ot later than 18 months after the date of
the enactment of this Act, the Secretary of Homeland Security
shall take all actions the Secretary determines necessary and
appropriate to achieve and maintain operational control over
the entire international land and maritime borders of the
United States,'' including ``physical infrastructure
enhancements to prevent unlawful entry by aliens into the
United States'' into law.
(b) Sense of Congress.--It is the sense of Congress that
Congress should--
(1) appropriate funds in the Department of Homeland
Security Appropriations Act for fiscal year 2008 to fund, at
a minimum, the strong commitment to border security
represented in the President's budget request for fiscal year
2008, which is consistent with the congressional intent
expressed in amendment 3979 sponsored by Senator Sessions to
Senate Bill 2611 (109th Congress), amendment 4775 sponsored
by Senator Sessions to House Bill 5631 (109th Congress), and
the Secure Fence Act of 2006; and
(2) appropriate funds in Department of Homeland Security
Appropriations Acts for fiscal years after fiscal year 2008
in a manner consistent with the congressional intent
expressed in such amendment 3879, such amendment 4775, and
the Secure Fence Act of 2006.
Mr. SESSIONS. Mr. President, I thank the Chair. I yield the floor,
and I note 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.
Mr. REID. Mr. President, I ask unanimous consent that at 11:30
tomorrow morning, the Senate proceed to vote in relation to the
following amendments in the order listed, that there be 2 minutes of
debate between each vote, with the time divided and controlled in the
usual form: amendment No. 316, McCaskill; amendment No. 315, Lieberman,
as amended, if amended; Collins amendment No. 342; and amendment No.
314, the DeMint amendment.
The PRESIDING OFFICER. Is there objection?
Mr. McCONNELL. Mr. President, reserving the right to object, and I
would say to my good friend, the majority leader, I will have to
object. I have not had a chance to vet several of these amendments on
this side yet, and I understand we are still going to have a vote on
the DeMint amendment, a motion to table in the morning, even if this
unanimous consent is not agreed to. So, therefore, I will be
constrained for the moment to object.
The PRESIDING OFFICER. Objection is heard.
Mr. McCONNELL. I would indicate to the majority leader I will
continue to work on it. I believe I am also correct the plan is to go
ahead and have a vote on the tabling motion of the DeMint amendment.
Mr. REID. Yes. If I was unable to do that, that is what I will do.
Thank you very much, Mr. President. I appreciate the statements of my
friend.
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