[Congressional Record (Bound Edition), Volume 153 (2007), Part 4]
[Senate]
[Pages 5288-5294]
[From the U.S. Government Publishing Office, www.gpo.gov]




          IMPROVING AMERICA'S SECURITY ACT OF 2007--Continued


                     Amendment No. 328, as Modified

  Mr. LIEBERMAN. Mr. President, I ask unanimous consent that amendment 
No. 328 be modified, with the changes at the desk.
  The PRESIDING OFFICER. Without objection, the amendment is so 
modified.
  The amendment, as modified, is as follows:

(Purpose: To require Amtrak contacts and leases involving the State of 
    Maryland to be governed by the laws of the District of Columbia)

       On page 299, between lines 2 and 3, insert the following:

     SEC. 1337. APPLICABILITY OF DISTRICT OF COLUMBIA LAW TO 
                   CERTAIN AMTRAK CONTRACTS.

       Section 24301 of title 49, United States Code, is amended 
     by adding at the end the following:
       ``(n) Applicability of District of Columbia Law.--In the 
     case of Maryland, any lease or contract entered into by the 
     National Railroad Passenger Corporation after the date of the 
     enactment of this subsection shall be governed by the laws of 
     the District of Columbia.''.

  Mr. LIEBERMAN. I thank the Chair, and I yield the floor.
  Mr. COBURN. Mr. President, I ask that the pending amendment be set 
aside.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                 Amendment No. 325 to Amendment No. 275

  Mr. COBURN. Mr. President, I call up amendment No. 325.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Oklahoma [Mr. Coburn] proposes an 
     amendment numbered 325.

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

   (Purpose: To ensure the fiscal integrity of grants awarded by the 
                    Department of Homeland Security)

       On page 106, preceding the matter on line 7, insert the 
     following:

     SEC. 204. COMPLIANCE WITH THE IMPROPER PAYMENTS INFORMATION 
                   ACT OF 2002.

       (a) Definitions.--In this section, the term--
       (1) ``appropriate committees'' means--
       (A) the Committee on Homeland Security and Governmental 
     Affairs of the Senate; and
       (B) the Committee on Oversight and Government Reform of the 
     House of Representatives; and
       (2) ``improper payment'' has the meaning given that term 
     under section 2(d)(2) of the Improper Payments Information 
     Act of 2002 (31 U.S.C. 3321 note).
       (b) Requirement for Compliance Certification and Report.--
     The Secretary shall not award any grants or distribute any 
     grant funds under any grant program under this Act or an 
     amendment made by this Act, until the Secretary submits a 
     report to the appropriate committees that--
       (1) contains a certification that the Department has for 
     each program and activity of the Department--
       (A) performed and completed a risk assessment to determine 
     programs and activities that are at significant risk of 
     making improper payments; and

[[Page 5289]]

       (B) estimated the total number of improper payments for 
     each program and activity determined to be at significant 
     risk of making improper payments; and
       (2) describes the actions to be taken to reduce improper 
     payments for the programs and activities determined to be at 
     significant risk of making improper payments.

  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. COBURN. Mr. President, by our estimates, this bill is about $17-
plus billion. As I said, it has not been scored. The House bill that 
will be merged with this in conference is over $20 billion. That is a 
large chunk of change for the American taxpayer. What we know is a lot 
of the grants which make up about $3-plus billion a year over the next 
5 years of the vast majority of this bill will be homeland security 
grants of one type or another. What we know is the Department of 
Homeland Security has not followed the law when it comes to improper 
payments.
  What the Improper Payments Act of 2002 required of every agency of 
the Federal Government was that they perform a risk assessment of every 
program they have, that they develop a statistically valid estimate of 
improper payments, that they develop a corrective action plan, and they 
report the results of those activities to us.
  This is not an optional plan for the agencies. Yet this plan has been 
ignored since its inception and since the creation of the Department of 
Homeland Security. We are getting ready to send another $17- to $18 
billion-plus out the door for homeland security grants--that is the 
majority of this--and we know the Department of Homeland Security is 
not in compliance with the Federal law.
  The reason the law exists is to make sure we get good value for the 
taxpayers' money. The year 2004 was the first year the agencies were 
required to respond to this act. It is worth noting again that there is 
not an agency of the Federal Government, not one agency, that is exempt 
from this law. This is not a request. This is a statutory requirement 
of every agency.
  The Department of Homeland Security has not even complied with the 
first step of this law. They have not performed risk assessments for 
the programs to be of significant risk of making improper payments. 
They are an at-risk program according to the analysis, yet they have 
not even looked to do a risk assessment. The Government Accountability 
Office has found at least six major programs at this Department are out 
of compliance with the Improper Payments Act. The Department of 
Homeland Security's independent auditor has repeatedly cited 
noncompliance, and the Department of Homeland Security continues to 
face significant challenges with FEMA and the Individual and Households 
Program.
  Based upon the Department's performance and accountability report and 
their independent auditor assessment, the following programs are out of 
compliance with the improper payments act: Customs and Border 
Protection; Office of Grants and Training; Federal Air Marshals--the 
Coast Guard was supposed to have done a performance evaluation and risk 
assessment but it has not been done; FEMA; the Transportation Security 
Agency; and Immigration and Customs Enforcement. Not one of them has 
performed the first risk assessment as to improper payments.
  In case you think that is not a lot of money, we have already spent 
over $25 billion in grants through the years for these programs, of 
which we have not looked at the problem accounts. The press is replete 
with problems in terms of these grants: $9 billion on State and local 
preparedness grants--that is what we get from DHS. Secretary Chertoff 
at the most recent hearing said $5 billion of the money, another $5 
billion--part of which has been obligated but has not gone out the door 
yet.
  I think we owe it to the American people, if there is a law on the 
books, before we send more money out the door the agency ought to 
comply with the law. They ought to at least do a risk assessment. If 
there is no risk, that is fine. Then they will have complied with the 
law. But if there is risk, we ought to be identifying the risk. Every 
dollar we spend wastefully is a dollar we don't use to protect 
ourselves in terms of our security.
  KPMG was the independent auditor for 2004, 2005, and 2006 for the 
Department of Homeland Security. In each one of those years they were 
out of compliance with this act. Specifically, the Department is cited 
for not instituting a systematic method of reviewing all practices and 
identifying those believed to be susceptible to erroneous, improper 
payments. The most important part of the Improper Payments Act is to 
create the process of good, strong oversight within the Department to 
make assessments about whether they are making improper payments. What 
this assessment does is it identifies where those improper payments 
could have been made, and that is essential to find out where the 
problems exist.
  This amendment does not debate any of the merits of the Department's 
programs. It simply demands compliance with the transparency and 
accountability measurements that already exist under current law. If we 
want the American people and the executive branch to take us seriously, 
Congress must demand compliance with the laws that are laws. We cannot 
back off.
  This amendment is not a surprise to the Department of Homeland 
Security. They know they are failing and they need to respond to it. 
This amendment in no way jeopardizes State funding. Let me tell you 
why. It is because there is a pipeline of 9 to 12 months in the works 
already on grants that are going there. For this to have any impact 
would mean they would have to not respond for another year before those 
grants would be in jeopardy. Some of my colleagues say, You can't do 
this. You can't put these grants at the risk of noncompliance of an 
agency in terms of meeting the law. The question ought to be, Why not? 
Why shouldn't we put the agency at risk with their grants for being 
noncompliant?
  The other point I make is most of these grants go to States and 
localities. The problem with the grants is there is some culpability on 
the part of the States and the localities in terms of these grants. The 
States are not totally innocent. There is $2.5 billion that has not 
even been awarded yet that still can be awarded before this takes 
effect. So there is still another $5 billion, which is greater than the 
amount we spend in any one year on these grants. What this amendment 
says is they cannot go past that unless they have complied with the 
law.
  If we are not going to agree to this amendment, then we need to trash 
the Improper Payments Act. If we are not going to say the Department of 
Homeland Security has an obligation to follow the law, then we ought to 
take the law off the books. We know for sure in the other areas of the 
Federal Government we have somewhere between $40- and $80 billion worth 
of improper payments. We know we have $40 billion of improper payments, 
overpayments, in Medicare; somewhere close to $30 billion in Medicaid. 
We have a third of the Earned Income Tax Credit that we know were 
improper payments and we have only looked at 40 percent of the 
Government; 60 percent of the Government still isn't complying.
  We ought to say right now if we are going to put more money through 
the door, the American taxpayer ought to have value for the money they 
send through that door. What we are saying is we want them to be 
accountable, to be accountable as an agency of the Federal Government. 
There ought to be transparency. We ought to be able to see where they 
are making mistakes and where they are not. The question of not even 
asking the question is what we are debating with this amendment; they 
are in absolute noncompliance with the Federal law that requires them 
to be compliant about whether their grants are improperly paid or 
funding other than what they expected to fund.
  Investigation showed FEMA spent millions on puppet shows, bingo, and 
yoga in south Florida. There is an article in the National Review, 7/
19/05, on homeland pork. Baltimore Sun, 5/29/05, chasing security with 
dollars. The only

[[Page 5290]]

transparency we have here is that there is a total lack of transparency 
in the Department of Homeland Security.
  Needless to say, this is a bill that goes far outside 9/11 
recommendations. The 9/11 recommendations said all money should be risk 
based. What we have turned around with the 9/11 bill, this one and what 
had passed in the previous Congresses, is a way to dole out money to 
States and not hold them accountable.
  What this amendment says is you are going to have to start being 
accountable. If we are going to send out another almost $20 billion in 
terms of grants, Homeland Security ought to have to follow the law in 
terms of improper payments.
  Remember, these grants are not competitively awarded--which is very 
different than the grants we have in almost every other Federal 
program. The fact they are not competitive is another reason, a much 
greater reason, for us to demand accountability and transparency at the 
Department of Homeland Security. These grants are also not let on the 
basis of risk. Some are. In some of these it will be down to .45 
percent, others at .75, and a few at .25. Most of them have no local 
match so there is no risk on the side of the States or the 
municipalities that get these grants.
  Just a note: The best way for Congress to practice spending 
discipline is to demand that the agencies comply with the laws assuring 
appropriated dollars are spent adequately, appropriately, and lawfully. 
We have yet to do that with many agencies.
  DHS is a good place to start. FEMA awarded $22.6 million for crisis 
counseling for victims of Hurricanes Rita and Katrina--$22.6 million. 
Katrina did not even hit Florida. Yet a large portion of that was spent 
in Florida. There is no accountability. There was no risk assessment. 
Was there a risk? They have not done the work we demand by the law and 
what is being demanded of other agencies.
  There was an article in the Florida Sun. I cannot vouch for its 
accuracy, but where there is a little smoke there is some fire. Of the 
$1.2 billion in aid that FEMA granted to individuals--not 
municipalities or contractors but to individuals--affected by the 
weather disasters between 1999 and 2004, the Florida Sun-Sentinel found 
of $1.2 billion, at least $330 million of that went to people who did 
not personally suffer any damage or disruption from the storms. That is 
a fourth of the money out of that $1.2 billion. No wonder we have a 
deficit. No wonder. Because we are not willing to take the time to 
force an agency to do what they should be doing under the law.
  I want to talk for a minute about this bill. The 9/11 Commission was 
very succinct and direct, noting that we have tremendous 
vulnerabilities and risks and exposures throughout this country. They 
were very clear to state that money that comes out of Congress to 
address those ought to be absolutely risk based. The House bill at 
least is down to 0.25 percent for every State. What that gives us is 
about 15 percent of the money is going to go to the States regardless 
of their risk. So that is about $3.5 billion or $4 billion--no risk, 
you are going to get Homeland Security grants even though you have no 
risk.
  Think about what we are going to ask ourselves if we have another 
terrorist attack and it is in one of the high-risk areas and we have 
sent, year after year after year, $4 billion to areas that do not have 
a high risk and that money could have prevented that action.
  With good fiscal discipline, we will best protect the people of this 
country. I know the tendency of this body is to make sure you get 
enough for you and to make sure you can go home and say we got this for 
you. You pat yourself on the back. But I wonder how many of us will be 
patting ourselves on the back when we buy things that are not 
absolutely necessary with these grants that are going to States and we 
ignore the very high-risk east coast, west coast, gulf coast, and the 
large metropolitan areas in this country that need more money while we 
are playing politics with 15 to 20 percent of the money. We will be 
judged on that, and that judgment will not be a pretty picture.
  This amendment simply says no funds can go for any of these grants 
until FEMA and the Department of Homeland Security start complying with 
the Federal statute, which is called the Improper Payments Act of 2002. 
It is very straightforward.
  What we will have raised is the fear that my State may not get some 
money. They have a year to comply. They have plenty of time to do what 
they have been asked to do. Senator Obama and I, this last year, over 8 
months ago, sent a letter to the Department of Homeland Security asking 
why.
  I ask unanimous consent to print that letter in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                Washington, DC, November 16, 2006.
     Hon. Michael Chertoff,
     Secretary, U.S. Department of Homeland Security, Washington, 
         DC.
       Dear Secretary Chertoff: We are writing with regard to a 
     recent Government Accountability Office (GAO) report 
     concerning improper payments at the Department of Homeland 
     Security (DHS). The persistent pattern of improper payments 
     limits the Department's ability to respond to our nation's 
     most dire threats and hazards, and we seek assurances that 
     you are taking adequate steps to address this problem.
       As you may know, the GAO released a report on November 14, 
     2006 assessing the compliance of government agencies with the 
     Improper Payments Information Act (IPIA) of 2002 (P.L. 107-
     300). Congress passed and the President signed the IPIA with 
     the belief that the Federal government, as a steward of 
     taxpayer dollars, should safeguard these funds from improper 
     payments and make timely and accurate reports on the improper 
     payments that do occur, so that erroneous payments are not 
     repeated in the future.
       Based on the recently-released GAO report, it appears that 
     DHS is not fulfilling its duty to address improper payments. 
     Specifically, the Department appears to have failed to 
     adequately perform the first step in reducing improper 
     payments--assessing which of its programs are at risk for 
     these payments. If an accurate risk assessment does not 
     occur, the Department's ability to reduce improper payments 
     is seriously compromised.
       We understand that in the period evaluated by the GAO (in 
     DHS' Fiscal Year 2005 Performance and Accountability Report), 
     DHS identified no programs in the entire agency with a high 
     risk for improper payments. However, the GAO analysis of 
     certain DHS programs indicates that the Department has not 
     ``institute[ed] a systematic method of reviewing all programs 
     and identifying those it believed were susceptible to 
     significant erroneous payments.''
       For example, GAO points to the Individuals and Households 
     Program (IHP) within the Federal Emergency Management Agency. 
     Despite warnings of reported financial management weaknesses 
     in the IHP program from the DHS Office of Inspector General 
     and the Senate Committee on Homeland Security and Government 
     Affairs, DHS concluded that the program did not meet the OMB 
     standard for identifying programs susceptible to significant 
     improper payments--exceeding $10 million and 2.5 percent of 
     program payments. However, the GAO analysis of the IHP 
     program reveals improper payments of approximately $1 
     billion. In GAO's words, this ``dramatically different'' 
     result--a difference of at least $990 million--far exceeds 
     the OMB requirement for a high-risk program.
       In fact, this was the third year in a row that your 
     independent auditor reported IPIA noncompliance for DHS. If 
     DHS cannot accurately determine which of its programs are at 
     risk for improper payments, it cannot take further steps to 
     root out these payments. And if steps are not taken to root 
     out improper payments in an agency with an annual budget of 
     over $34 billion, American taxpayer dollars will be left 
     vulnerable to waste, fraud and abuse with funds that should 
     have been used to protect them.
       Please provide us with an explanation of how the Department 
     failed to identify the IHP as a risk susceptible program 
     during the risk assessment process for fiscal year 2005, 
     potentially failing to account for as much as $990 million in 
     improper payments. We further ask that you provide details on 
     how the Department plans to institute an improved method of 
     reviewing all of its programs and identifying those programs 
     that are susceptible to improper payments, in accordance with 
     the letter and spirit of the law.
       Please provide a response by December 15, 2006. Thank you 
     in advance for your consideration of this important matter.
           Sincerely,
                                                     Barack Obama,
                                                     U.S. Senator.
                                                       Tom Coburn,
                                                     U.S. Senator.

  Mr. COBURN. This letter was sent to Secretary Chertoff. The Federal 
Financial Management Subcommittee of the

[[Page 5291]]

Committee on Homeland Security and Governmental Affairs had four 
hearings on improper payments. We know what is required. We know they 
can do it. What the Congress has to do is make them do it, if they want 
to spend the money. It is only right for our children and grandchildren 
to get fair value for the taxpaying public, as we send out this money.
  I am a skeptic when it comes to this body, when it gets away from the 
political porking that goes on. I am not sure this amendment will pass. 
But if it doesn't pass, I will offer an amendment to get rid of the 
Improper Payments Act because there is no reason to have a law that we 
are not going to enforce. If we are not going to enforce it, why is it 
on the books? It is similar to enforcing the borders. The law is there, 
but we don't do it.
  We have to be accountable to the American public to make sure that 
agencies follow the law. This is a simple amendment that requires 
Homeland Security to follow that.
  By the way, we have not had an answer to this letter. It was dated 
November 16. I spoke in error.


                         United Nations Funding

  I want to correct something I said last week on the United Nations. 
My numbers were wrong. We, in fact, do pay for about 22 percent of the 
unified budget at the United Nations, and our total contribution is in 
excess of $5 billion. I had the ratios right, I had the numbers wrong. 
I want to correct that for the Record today.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.


                           Amendment No. 305

  Mr. SESSIONS. Mr. President, I call up amendment No. 305. I believe 
it is already pending, having been offered by Senator McConnell.
  The PRESIDING OFFICER. The amendment is pending.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that Senators 
Craig, Inhofe, Isakson, and Coburn be made cosponsors of the amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, it is critically important that we 
clarify the role of State and local law enforcement officers in the 
enforcement and apprehension of those who violate our immigration laws 
and that we expand the National Crime Information Center interest. It 
is critical that we have them participate because with expanded NCIC 
capability, which I am surprised is not already being done, they can be 
partners in Federal law enforcement efforts.
  It would be in compliance with what the 9/11 Commission and other 
reports have asked us to do. It is a loophole in the system today that 
needs to be fixed.
  The amendment I offer is a slimmed down version of the bill I offered 
in the last Congress, the Homeland Security Enforcement Enhancement 
Act. That was cosponsored by Senators Craig, Inhofe, and Isakson. The 
ideas contained in the amendment have also been supported by Senators 
Kyl and Cornyn. They included it in their immigration bill last 
Congress. Senators Ben Nelson and Coburn included those provisions in 
the Nelson-Sessions immigration enforcement bill in the last Congress.
  Additionally, my amendment is almost word for word the provision that 
the Senate Judiciary Committee included when it marked up the Senate 
immigration bill last year and the provision that the full Senate voted 
for when it passed S. 2611.
  The first section of the amendment reaffirms what I believe to be the 
existing inherent authority of State and local law enforcement to 
assist the Federal Government in enforcing the immigration laws of the 
United States during the normal course of carrying out their law 
enforcement duties. The amendment specifically states that the 
participation of State and local law enforcement personnel is not 
required, not mandated by this legislation. It is 100 percent 
voluntary.
  Section 2 of the amendment deals with the listing of immigration 
violators in the National Crime Information Center database. State and 
local officers need easily accessible roadside access to critical 
immigration information, just as they would do for citizens of the 
United States who violate our laws. Officers routinely, when they stop 
people on the road, run National Crime Information Center database 
checks when they pull over suspects, speeders, or people they are 
investigating for other crimes. The NCIC is their bread-and-butter 
database. Today the immigration violators file of the National Crime 
Information Center database contains information on deported felons, 
alien absconders, and wanted persons, aliens with outstanding criminal 
warrants. That is in the National Crime Information Center database. 
But my amendment would direct that the Department of Homeland Security 
work with the FBI to place additional information on certain 
immigration violators into the already existing immigration violators 
file.
  The four categories of immigration violators whose information would 
be entered are, one, aliens who have final orders of removal. That is 
someone who has been apprehended, gone through a hearing, and a judge 
has ordered finally that they be removed from the country for whatever 
violation; two, it would cover aliens under voluntary departure 
agreements who for one reason or another have signed an order that they 
would voluntarily deport themselves or leave the country; No. 3, it 
would cover aliens who are known to have overstayed their authorized 
period of stay, the visa overstays; and No. 4, it would cover aliens 
whose visas have been revoked. Sometimes people misbehave seriously. 
Twenty-seven percent of our Federal penitentiary bed spaces today are 
filled by noncitizens.
  For some reason in recent years we are seeing a substantial number of 
criminal aliens coming into the country. These are not bed spaces for 
immigration law violations, not people waiting to be deported. These 
are people who have been arrested, tried, or convicted of Federal 
criminal laws such as drug dealing and assaults or smuggling, things of 
that nature.
  When State and local police officers encounter individuals during 
their regular law enforcement duties, it is important that they know if 
the individual in front of them falls into one of these violator 
categories. Importantly, my amendment includes a new procedure for 
removal of erroneous information from NCIC. If there is something 
entered incorrectly, under the new procedures an alien may petition the 
Secretary of the Department of Homeland Security or the head of NCIC to 
remove any erroneous information that may have been placed in that file 
to protect them from any unfair treatment.
  These are recommendations that should already be law, but they are 
recommendations made in the 9/11 Commission Report. We are all familiar 
with those recommendations, and they have been included in the Hart-
Rudman report.
  On page 384 of the 9/11 Commission Report, the Commission says:

       Our investigations showed that two systemic weaknesses came 
     together in our border system's inability to contribute to an 
     effective defense against the 9/11 attacks: a lack of well-
     developed counterterrorism measures as a part of border 
     security and an immigration system not able to deliver on its 
     basic commitments, much less support counterterrorism. These 
     weaknesses have been reduced but are far from being overcome.

  On page 390, the report says:

       There is a growing role for State and local law enforcement 
     agencies. They need more training and work with Federal 
     agencies so that they can cooperate more effectively with 
     those Federal authorities in identifying terror suspects.

  In the fall of 2002, a year after the 
9/11 attacks, the Council on Foreign Relations published the Hart-
Rudman report entitled ``America Still Unprepared, America Still in 
Danger.'' That report found that one problem America still confronts is 
that 700,000 local and State police officials continue to operate in a 
virtual intelligence vacuum. The first recommendation of the Hart-
Rudman report was to ``tap the eyes and ears of local and State law 
enforcement officers in preventing attacks.'' That is their first 
recommendation, to ``tap the eyes and ears of local and State law 
enforcement officers in preventing attacks.''

[[Page 5292]]

  On page 19 the report specifically cited the burden of finding 
hundreds of thousands of illegal fugitive aliens living among the 
population of more than 8.5 million illegal aliens and suggested that 
the burden could and should be shared with the 700,000 local, county, 
and State law enforcement officers, if they could be brought out of the 
information void.
  So this amendment I am offering tightly targets 9/11 Commission and 
Hart-Rudman report recommendations that we look at the growing role for 
State and local law enforcement, that we move toward an immigration 
system that can ``deliver on its basic commitments'' as a way to fight 
terrorism, and that we ``tap the eyes and ears of local and State law 
enforcement officers'' in an effort to find the hundreds of thousands 
of fugitive aliens in the United States.
  Most Americans would probably be amazed that is not occurring today. 
In fact, a recent poll of 3 years ago was done on this very subject. It 
found that a large majority of Americans believe that State and local 
governments should be aiding the Federal Government in finding alien 
fugitives. That is pretty commonsensical. In fact, a Roper poll found 
that 85 percent of Americans agree and 65 percent strongly agree--those 
are powerful numbers--that Congress should pass a law requiring State 
and local governments and law enforcement agencies to apprehend and 
turn over to INS, now ICE, illegal immigrants with whom they come in 
contact. That is pretty strong data.
  It is important to note that those responses were collected in answer 
to questions about requiring State and local immigration enforcement 
action. So it is very likely that a poll on this subject, one about 
voluntary State and local assistance, would be even stronger.
  Let me tell my colleagues about the problem that started my interest 
in this area and prompted me to offer this amendment, as well as 3 
years ago to push for a hearing, which was held on April 22, 2004, in 
the Judiciary Committee entitled ``State and Local Authority to Enforce 
Immigration Law, Evaluating a Unified Approach for Stopping 
Terrorists'' and for me to author a Law Review article in April of 
2005, along with my chief counsel on Judiciary, Cindy Hayden, that was 
published in the Stanford Law and Policy Review, entitled ``The Growing 
Role for State and Local Law Enforcement in the Realm of Immigration 
Law.''
  This is the reality. This is the problem we are dealing with. Police 
chiefs and sheriffs in Alabama have begun to tell me, as I have 
traveled the State and met with them frequently, and as I continue to 
do so, that they have been shut out of immigration enforcement and that 
they felt powerless to do anything about Alabama's growing illegal 
immigrant population. I heard the same story wherever I went:

       When we come across illegal aliens in our normal course of 
     duty, we have given up calling the INS, because they tell us 
     we have to have 15 or more illegals in custody or they will 
     not even bother to come and pick them up.

  Even worse, Alabama police were routinely told that aliens could not 
be detained until INS could manage to send someone. They were told they 
just had to let them go. This is basically the policy all over America 
today, I kid you not. If a local officer in virtually any State in 
America stops someone for speeding or DUI and finds out they are here 
illegally, they basically take no steps to even contact INS because 
they only have 2,000 agents in the entire United States and they are 
not going to come out there and get them. In fact, for other legal 
reasons, they may have some doubt--although, frankly, not much--but 
there is some doubt about what their authority might be.
  Now, we have done some research into this and believe the legal 
authority of State and local officers to voluntarily act on violations 
of immigration law is pretty clear. If there is any doubt that State 
and local law enforcement officers have any authority--and if there is 
any, and there certainly is some today--Congress needs to remove that 
doubt, which is what this amendment will do.
  Basically, there is a split in the circuits. I will take just a 
moment to explain. The Tenth Circuit on more than one occasion 
concluded squarely that a ``state trooper has general investigatory 
authority to inquire into possible immigration violations.'' As the 
Tenth Circuit went on to say, there is a ``preexisting general 
authority of state or local police officers to investigate and make 
arrests for violations of federal law, including immigration laws.''
  The Tenth Circuit went on to say, in 2001:

       [S]tate and local police officers [have] implicit authority 
     within their respective jurisdictions ``to investigate and 
     make arrests for violations of federal law, including 
     immigration laws.''

  Now, these Tenth Circuit cases made no distinction between criminal 
violations and visa overstays, which are not criminal in nature but 
civil. But the Ninth Circuit did. They concluded the civil violations 
of a visa overstay did not amount to an offense of law that the local 
law enforcement officer could arrest and detain for. It was in dictum, 
not part of the central holding of that case. But that one piece of 
dicta has created an impression throughout the country that has 
impacted lawyers and police departments and sheriffs' departments all 
over America.
  They are telling their officers: Well, it might be that the person 
you stop and is here illegally is a visa overstay and not someone who 
came across the border illegally, and if you arrest them and detain 
them, they might sue us, they might sue the city, they might sue the 
police department. So they have established policies based on this 
ambiguity that have effectively reduced the participation of local law 
enforcement officers to a dramatic degree in the enforcement of 
immigration laws. That is not appropriate. We can fix that. This 
amendment would fix that.
  The second problem the amendment deals with is the inadequate way we 
share information on immigration matters with State and local police. 
We have databases full of information on criminal aliens and aliens 
with final deportation orders, but that information is not directly 
available to the State and local police through their base system, the 
NCIC. Instead, officers are required to make a special second inquiry 
to the Law Enforcement Support Center, which is headquartered in 
Vermont, to see if the person they pulled over is an illegal alien 
wanted by DHS.
  Now, I have to tell you, they are not just carrying around in their 
pocket those phone numbers anyway. They do not know how to do it. They 
are not comfortable with it. It is not what they do every day. They are 
not doing it. Besides, if they do and find out the person is illegal, 
there is nothing much they can do but let them go anyway. So the 
ability of the bread-and-butter NCIC database to convey to local police 
who stop someone out on the highway information that this may be a 
wanted person, maybe even a terrorist, has been severely impacted or 
really is not effective in many different areas.
  I have complained about this for some time, and some progress has 
been made but not enough. To date, the Immigration Violators File of 
the NCIC contains about 200,000 entries, and only about 107,000 of the 
approximately 600,000 alien absconders are in the NCIC. I want you to 
hear that. Only about 100,000 of the 600,000 alien absconders have been 
entered into the NCIC.
  So what does that mean? That means if a local police officer 
somewhere stops a person who has been previously arrested for an 
immigration violation and that person has been released on bail, as 
often is the case, and ordered to return to court or to be deported--
and they frequently do not do so; they abscond; and there are 600,000 
of those absconders out there, but only 107,000 of those records are in 
NCIC, so a local police officer is not likely to find a hit for the 
person before him--there will be a 1-in-5 chance of them getting that 
hit.
  That really needs to be fixed. For the life of me, I cannot see why 
more progress has not been made. We have been talking about this for 4 
or 5 years

[[Page 5293]]

in the Senate Judiciary Committee with the Department of Justice 
officials and ICE officials and FBI people who run the NCIC.
  At the very least, NCIC should contain four types of immigration 
information.
  The first group: aliens with final orders of removal. If someone has 
been ordered removed, they should not be in this country. They 
sometimes leave the country and come back into the country and you get 
a hit on that person. In other words, they have been ordered removed. 
Why are they back in the country?
  The second group that should be in there: aliens under voluntary 
departure agreements. Some agree to leave voluntarily and sign an 
agreement to that effect. They ought to be in there because they should 
not have stayed in the country or, if they left, they should not have 
returned.
  The third group: aliens who are known to have overstayed their 
authorized period of stay should be entered.
  The fourth group: aliens whose visas have been revoked, for heaven's 
sakes, ought to be in there.
  If somebody is here improperly--maybe they have been associated with 
some criminal enterprise; the ICE people have revoked their visa for 
some reason; it would have to be significant, usually, for that to 
occur--they ought to go in there because if they are stopped somewhere, 
they should be detained and turned over to ICE; otherwise, the system 
is not working.
  Let me tell my colleagues--I know how this system works--if someone 
had their visa revoked and had been ordered to be removed, trust me, 
the ICE agents do not go out and walk the streets of Philadelphia or 
Atlanta or Birmingham and look for them so they can deport them. They 
do not do it. They are not even close to having the ability to do that. 
Only the people for whom they have evidence who are extremely dangerous 
is that done. That is very few. The way most people are caught is just 
like everybody else in America who is caught who has absconded or run 
off on bail. They get caught by getting picked up by police on a 
traffic stop somewhere. The police officer runs their name and ID in 
NCIC and a hit comes back; there is a warrant for his arrest in 
Montgomery, AL, for armed robbery, and he locks him up.
  If you are an American citizen and you get a reckless driving ticket 
and you are ordered to appear in court at a given time and place and 
you do not appear in court, they issue a warrant for your arrest. 
Normally, the police officers do not go out and chase you down all over 
and find you to arrest you. Normally, they put it in the NCIC 
immediately on the assumption you will soon be stopped somewhere else 
along the way and they will get a hit on you and somebody will put you 
in jail because you have a warrant for flight out there or for jumping 
bail. But we do not do that for noncitizens. A citizen, that will 
happen to; a U.S. Senator, that will happen to but not somebody who is 
coming to the country illegally. We do not do the same thing when they 
jump bail on their charges.
  So there are a lot of stories we can tell. I will just summarize a 
number of them. It really caught the attention of the 9/11 Commission. 
For example, Mohamed Atta, who is believed to have piloted American 
Airlines Flight 11, which flew into the World Trade Center's North 
Tower, and played a leading role in more than 3,000 deaths that 
occurred that day, in July, just 2 months before the attacks, was 
stopped by police in Tamarac, FL, and was ticketed for having an 
invalid license. He ignored the ticket and a bench warrant was issued 
for his arrest. When he was stopped for speeding a few weeks later in a 
nearby town, the officer did not check, did not discover this warrant 
had been issued and let him go with only a warning.
  Now, OK, Atta had not yet become illegal. I believe at that time he 
still was on a legal status. However, it was about to expire. I doubt 
he would have returned to the immigration office to get it extended. He 
would soon have been here illegally as a visa overstay. He could well 
have been apprehended and identified before 9/11 had he done so.
  That is the example I am trying to make. It could very well have been 
decisive.
  Also Hani Hanjour was, just 1 month before 9/11, stopped by police in 
Arlington, VA, for driving 50 miles an hour in a 35-mile-per-hour zone. 
He was in a Chevy van with New Jersey plates. He produced a Florida 
driver's license. But he was the pilot of the American Airlines Flight 
77 which crashed into the Pentagon.
  A third hijacker was stopped by State police just 2 days before 
September 11, also for speeding. Maryland State police stopped Ziad 
Jarrah on Interstate 95 for driving 90 miles an hour in a 60-mile-per-
hour zone.
  Well, we are not talking about academic matters; we are talking about 
the fact that the alien database needs to be accessible to local 
police. It might as well, for all practical purposes, be locked up in 
some vault somewhere in secrecy, the way it is being done today. It is 
not available to the people out there who need it.
  The Hart-Rudman Commission raised that point, as did the 9/11 
Commission. I have been told at hearings by the appropriate officials 
that the NCIC system can handle the additional data. It will not 
overburden the system. It will make this information readily and 
immediately available to a police officer. He or she may have stumbled 
onto a person such as Mohamed Atta on his way to commit a horrible, 
unspeakable act of terrorism against the people of the United States. 
That opportunity to make that arrest and to identify that criminal is 
most important.
  So that is the purpose of the amendment. I believe as people think 
about it we will see the need for it. I have tried to get this done in 
any number of different ways, but we have not quite gotten there yet. I 
think there is a majority in the Senate, probably on both sides of the 
aisle, who would support this when it is clearly raised. But as so 
often tends to happen, matters that actually work to a significant 
degree and will actually substantially increase the ability of our law 
enforcement system to be effective are the things that do not become 
law. It is almost like if it works, it will not pass. If you come up 
with something that sounds good but will not work, that will get 
passed.
  This needs to be done. In many ways, it will be a test of the Members 
of this body.
  Are we serious about enforcement of immigration laws? I think we are 
becoming that way. I believe there is a growing understanding that 
lawfulness needs to be returned to immigration. Without it, we are 
going to continue to have an erosion of public confidence in our 
system. We can do all of that. I ask that my colleagues consider this 
amendment. I hope we will be able to move it forward as part of this 
security legislation.
  Mr. President, I yield the floor, and I note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                 Amendment No. 347 to Amendment No. 275

  Mr. SESSIONS. Mr. President, I send an amendment to the desk.
  The PRESIDING OFFICER. Is there objection to setting aside the 
pending amendment? Without objection, it is so ordered.
  The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Alabama [Mr. Sessions] offers an amendment 
     numbered 347 to amendment No. 275.

  Mr. SESSIONS. Mr. President, I ask that this amendment be called up 
and made pending.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

[[Page 5294]]



  (Purpose: To express the sense of Congress regarding the funding of 
Senate approved construction of fencing and vehicle barriers along the 
                 southwest border of the United States)

       At the appropriate place, insert the following:

     SEC. __. SENSE OF CONGRESS ON THE FUNDING OF FENCING AND 
                   VEHICLES BARRIERS ALONG THE SOUTHWEST BORDER OF 
                   THE UNITED STATES.

       (a) Findings.--Congress makes the following findings:
       (1) On May 17, 2006, by a vote of 83 to 16, the Senate 
     approved amendment 3979 sponsored by Senator Sessions to 
     Senate Bill 2611 (109th Congress), the Comprehensive 
     Immigration Reform Act of 2006, which required the Secretary 
     of Homeland Security to construct at least 370 miles of 
     fencing and 500 miles of vehicle barriers along the southwest 
     border of the United States.
       (2) On August 2, 2006, by a vote of 94 to 3, the Senate 
     approved amendment 4775 sponsored by Senator Sessions to 
     House Bill 5631 (109th Congress), the Department of Defense 
     Appropriations Act, 2007, which included a provision to 
     appropriate $1,829,000,000 for the construction of 370 miles 
     of fencing and 461 miles of vehicle barriers along the 
     southwest border of the United States.
       (3) On September 20, 2006, by a vote of 80 to 19, the 
     Senate approved House Bill 6061 (109th Congress), the Secure 
     Fence Act of 2006, which mandates the construction of fencing 
     and border improvements along the southwest border.
       (4) On October 26, 2006, the President signed the Secure 
     Fence Act of 2006 (Public Law 109-367; 120 Stat. 2638), which 
     mandates that ``[n]ot later than 18 months after the date of 
     the enactment of this Act, the Secretary of Homeland Security 
     shall take all actions the Secretary determines necessary and 
     appropriate to achieve and maintain operational control over 
     the entire international land and maritime borders of the 
     United States,'' including ``physical infrastructure 
     enhancements to prevent unlawful entry by aliens into the 
     United States'' into law.
       (b) Sense of Congress.--It is the sense of Congress that 
     Congress should--
       (1) appropriate funds in the Department of Homeland 
     Security Appropriations Act for fiscal year 2008 to fund, at 
     a minimum, the strong commitment to border security 
     represented in the President's budget request for fiscal year 
     2008, which is consistent with the congressional intent 
     expressed in amendment 3979 sponsored by Senator Sessions to 
     Senate Bill 2611 (109th Congress), amendment 4775 sponsored 
     by Senator Sessions to House Bill 5631 (109th Congress), and 
     the Secure Fence Act of 2006; and
       (2) appropriate funds in Department of Homeland Security 
     Appropriations Acts for fiscal years after fiscal year 2008 
     in a manner consistent with the congressional intent 
     expressed in such amendment 3879, such amendment 4775, and 
     the Secure Fence Act of 2006.

  Mr. SESSIONS. Mr. President, I thank the Chair. I yield the floor, 
and I note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, I ask unanimous consent that at 11:30 
tomorrow morning, the Senate proceed to vote in relation to the 
following amendments in the order listed, that there be 2 minutes of 
debate between each vote, with the time divided and controlled in the 
usual form: amendment No. 316, McCaskill; amendment No. 315, Lieberman, 
as amended, if amended; Collins amendment No. 342; and amendment No. 
314, the DeMint amendment.
  The PRESIDING OFFICER. Is there objection?
  Mr. McCONNELL. Mr. President, reserving the right to object, and I 
would say to my good friend, the majority leader, I will have to 
object. I have not had a chance to vet several of these amendments on 
this side yet, and I understand we are still going to have a vote on 
the DeMint amendment, a motion to table in the morning, even if this 
unanimous consent is not agreed to. So, therefore, I will be 
constrained for the moment to object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. McCONNELL. I would indicate to the majority leader I will 
continue to work on it. I believe I am also correct the plan is to go 
ahead and have a vote on the tabling motion of the DeMint amendment.
  Mr. REID. Yes. If I was unable to do that, that is what I will do. 
Thank you very much, Mr. President. I appreciate the statements of my 
friend.

                          ____________________