[Congressional Record (Bound Edition), Volume 148 (2002), Part 4]
[Senate]
[Pages 4539-4556]
[From the U.S. 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. 3525) 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quorum call be rescinded.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

[[Page 4540]]

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, 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

[[Page 4541]]

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 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

[[Page 4542]]

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 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

[[Page 4543]]

     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.
       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 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 Customs 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 an 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

[[Page 4544]]

     inspector had inappropriately allowed them to take shore 
     leave after a ship docked in the Norfork, Virginia harbor.
       On November 30, Senators Feinstein, Kennedy, Brownback 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 
     expired. 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, 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.

             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 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 too 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,

[[Page 4545]]

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 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

[[Page 4546]]

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. 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

[[Page 4547]]

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 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

[[Page 4548]]

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 
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

[[Page 4549]]

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 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.

[[Page 4550]]


  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 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

[[Page 4551]]

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 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

[[Page 4552]]

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 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

[[Page 4553]]

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. 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

[[Page 4554]]

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 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.

[[Page 4555]]


  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 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.

[[Page 4556]]

  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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