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Hearing of the Senate Judiciary Committee - Oversight of the Department of Homeland Security

CHAIRED BY: SENATOR PATRICK LEAHY (D-VT)

WITNESS: JANET NAPOLITANO, SECRETARY OF HOMELAND SECURITY

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SENATOR JEFF SESSIONS (R-AL): (In progress.) Your decision to release some of those that were arrested, in this -- right, I mentioned, in Washington, I think, could represent a significant shift from the policies of the previous administration. Secretary Chertoff and his policies I don't think followed that trend.

So I'm concerned about that. And I also note that while our unemployment rate in America is rising now, to 8.5 percent, in the days after this Yamato raid, in Washington, 150 people applied for those jobs.

So there are people willing to work. And sometimes I think unscrupulous employers are seeking a cheaper way out, violating the law and not providing opportunities for American citizens, who are unemployed, to get good work.

I was also disappointed that in April, you decided to delay implementation of Executive Order 12989, which requires all federal contractors and subcontractors to use E-Verify. And you put it off until June 30th. I think that's the third delay. President Bush delayed it until the beginning of January. And I think this is the second delay from this administration.

Over 100,000 employers use this. I think you have supported this concept in the past. But these extensions may be sending a message that's confusing. And voluntarily people are signing up, as much as 1,000 a week. And we need to keep that going. And I frankly was baffled that the Congress did not require it to be used, with regard to the stimulus package and jobs created there.

So I hope that you will clarify some of the positions you've taken, with regard to people who enter the border. Your letter is pretty clear on that. It is a misdemeanor. And I think perhaps maybe it was just a misspeaking, when you suggested it was only a civil offense to enter the country. But again that's a message that can have an effect of undermining the morale of our officers and the possibility of creating a lawful border.

Thank you for your testimony. I look forward to engaging in dialogue. I want you to succeed; capable person.

You've got good background for this position. And we'll be trying to cooperate and assist you, but we do need to use those great resources effectively, and I'll be counting on you to do that.

Thank you, Mr. Chairman.

SEN. LEAHY: There's going to be a series of votes, and I'd urge senators who are not in line to ask questions, as soon as the vote starts, go to the floor and come right back. And we'll try and keep this going.

I know your time is limited and all, but please go ahead.

SEC. NAPOLITANO: Well, thank you, Mr. Chairman. And congratulations to you, Senator Sessions, on becoming the ranking member of this committee.

And I'll give a preliminary statement now. I do look forward to Senator Sessions clarifying some of the comments you had because I think it will be important that we work together to enforce the rule of law at the border and in the interior of the country, because our immigration strategy cannot just be border-specific; it has to include the entire nation. So I look forward to coming back to those specific questions on Bellingham and E-Verify.

But as you know, and as you've noted, the Department of Homeland Security has a very broad mission. I categorize them in five major categories. The first is to guard against terrorism. That is why the department was stood up. The second is to secure our borders. The third is to enforce our immigration laws in a smart and effective manner. The fourth is to prepare for and recover from disasters. This can be managing events, as we are currently under way with the H1N1 virus, to preparing for the upcoming hurricane season. And the fifth is unifying the department, creating one Department of Homeland Security out of what originally was 22 separate agencies.

We are moving forward in many of these areas. Specifically with respect to this committee, we are moving forward with respect to our borders, immigration enforcement and secure identification. And I detail those efforts in my more elaborate written statement which we'll put in the record for you.

If I might, just to highlight a few things, we are working to protect our borders against rising drug cartel violence and other cross-border threats. We're adding more boots on the ground, technology and equipment through a new Southwest Border strategy. We are expanding our cooperation with state, local and tribal -- (audio break) -- through border enforcement teams, called BEST teams, and other initiatives. And we are strengthening and enhancing our cooperation with Mexico through efforts like the Merida Initiative.

In addition, we are refocusing our efforts on smart and effective immigration enforcement. We are targeting the employers that hire illegal aliens and create the demand for illegal immigration. We are making improvements to the E-Verify system.

Let me pause a moment there. I believe E-Verify is a -- very important and must be an integral part of immigration enforcement moving forward. I signed the nation's toughest employer-sanctions laws when I was governor of Arizona, and it is no surprise that almost 25 percent of the employers currently registered on E-Verify are actually Arizona employers. So we know that with incentives and otherwise, E-Verify can really make a difference. We are committed to making it better.

We are expanding our efforts to identify, arrest and deport criminal and fugitive aliens. We are working on improving -- (audio break from source) -- with proper guidance and oversight with our state and local partners.

And we're doing the same with respect to detention of ICE detainees, making sure that if they are detained by force of the rule of law, they are receiving appropriate treatment and health care.

Finally, we are working to strengthen and standardize travel and identity documents and improve our ability to confirm identity. We are on track to implement the Western Hemisphere Travel Initiative requirements on June 1st of this year at our land and sea ports of entry. We are doing exhaustive outreach to our border regions. We have identified a range of WHTI-compliant credentials available to citizens, from passports to passport cards to trusted-traveler cards. We've added ID readers at 33 of our ports and will soon have them at the top 39 ports -- that account for, I think, roughly 80 to 85 percent of the traffic that crosses the border. And we're improving the capabilities of US-VISIT, moving from two-fingerprint identification to 10-fingerprint collection.

We are working as well with the National Governors' Association to identify ways to strengthen the security of the driver's license. We need to find a workable solution that brings the states into compliance, fulfills our security goals, but does not operate as an unfunded mandate to cash-strapped states.

This is a fairly full plate, and I've just mentioned several of the major items that are under way at the department. Let me close with this: One of the best things I have found as the new secretary of Homeland Security is in the men and women who work for this department. There are 218,000. They work hard every single day to meet the challenges that we have and to protect the American people, and I am proud to serve as their secretary.

I look forward to working with this committee in these other areas, especially as we take up the issue of comprehensive immigration reform. And with that, Mr. Chair, I look forward to the committee's questions.

SEN. LEAHY: Thank you. And Madame Secretary, we'll put your full statement in the record, and as I -- as well as my full statement in the record. And as I noted in the beginning of that, I appreciate, and I think all Americans appreciate, your leadership in the face of the swine-flu threat.

I was struck in -- by your written testimony -- and you referred a little bit to it here, too -- regarding REAL ID reform and reaching out to the governors of our states to develop a better alternative. But you were a governor, and you understand the problems of the governor in a border state too. Legislation is currently being discussed in the Senate to reform the REAL ID law. I understand the department has had some opportunity to review comment on the proposed legislation.

Will you agree, at least as a basic start, that we'd accomplish a lot more if we a law that the states would support and could implement more easily? In other words, if we had something that the states could really be on board with.

SEC. NAPOLITANO: Yes, Mr. Chair. I think that our experience under the existing law which is known as REAL ID has been bipartisan among the states and unanimous that they don't like it and cannot meet its requirements and feel that it was an unfunded mandate at a most unfortunate time.

We have been working since I became secretary with a bipartisan group of governors as well as legislators to craft a solution that unites the goals of the REAL ID with a better way for states to be able to implement it. And I believe a bill is -- if it has not yet been introduced, is -- soon will be introduced --

SEN. LEAHY: Let's work together on that, because we will pass legislation. We're all hearing from our -- most of us hearing from our governors, and we want pass something that makes the situation better, not worse. And so we'll call on you on that.

When you and I met earlier this year, we talked briefly about the EB-5 Regional Center Program. That's something that's important in Vermont. It's important in Alabama. It's important in a number of other states, allows foreign investors to obtain legal permanent residency, provided they've made a substantial investment in an American development project. Billions of dollars have come to the United States since that began in the 1990s. We have thousands of jobs that have been created for Americans.

We reauthorize it over and over again, but always for a short period of time -- six months, so on.

Would you support legislation to make the EB-5 Regional Center Program permanent?

SEC. NAPOLITANO: Mr. Chair, I would support the principle of making it permanent. I would want to actually see the legislation, of course --

SEN. LEAHY: Of course. I understand.

SEC. NAPOLITANO: But obviously this is a way of attracting investment dollars, and it's tied directly to the creation of jobs right here in the homeland.

SEN. LEAHY: But would you agree that if it's -- everybody looks at it and says, "Well, you know, this thing could be turned off again in six months and all," that we ought to have something that makes it little bit more concrete than what it is today?

SEC. NAPOLITANO: It makes sense. If the goal is to attract investment dollars that lead to the creation of jobs, investment dollars requires stability, and so that approach would make sense.

SEN. LEAHY: Let me go to something that Senator Kyl and I worked long and hard with the prior administration. That's on the waiver authority we gave DHS and State Department on those seeking asylum or refugees, because we have the material support and terrorism bar in the immigration laws -- which on the face seem like a good idea, but they are so broad that somebody -- even somebody who's been forced into servitude in some of these terrorist groups, they escape and seek asylum, they're suddenly barred, or they've -- people who have worked with us and have helped us gain intelligence and all, suddenly they're barred. Don't -- are you revisiting the interpretations of material support, terrorism and terrorist acts, to find a better way to handle this?

SEC. NAPOLITANO: Yes, Mr. Chairman, we are. It is being examined by several elements within the Department of Homeland Security to see how best we can accomplish the goals of that waiver authority.

SEN. LEAHY: Would you keep in touch with both myself, Senator Kyl, and others up here who are involved in this? Because we've got to have a better way. I just don't -- I don't want people who we sought their help and suddenly they're barred from seeking asylum here, having helped us, facing possible execution in their home states or their home countries.

And we are, after all, the country that's always been a beckoning factor to people who have been oppressed, people who have faced death in their own country. And we want to keep that going. So please work with us on that.

SEC. NAPOLITANO: Absolutely.

SEN. LEAHY: My time is up. Yield to the ranking member.

SEN. SESSIONS: Thank you.

Madame Secretary, you wrote that you announced new guidance for our agents in the field; you know, you wrote in your letter to me that I received last night. And you are, quote, "directing them to target both illegal workers and employers that create incentives for aliens to illegally cross our borders," which I think is the law and sound policy. And I appreciate that.

But you know, this little flap over the raid that I mentioned earlier is a matter of some concern. One of the things that was disturbing to me apparently was that -- it was some spokesman made the comment that there was a personal commitment by the president to certain immigrant rights groups, and that this raid violated that.

Are you aware of that? Could you explain what was referred to in that news article?

SEC. NAPOLITANO: No, I can't, Senator. I don't know that article. But I can tell you that the president is very committed to the enforcement of our nation's immigration laws, and he has charged me with that responsibility.

Let me, if I might, follow up on the -- this is the Bellingham raid that you're referring to.

SEN. SESSIONS (R-AL): Right.

SEC. NAPOLITANO: And the reason that I said I was looking into it was that there was an existing process within the Department of Homeland Security, that preexisted my tenure there, that before raids like that were undertaken, there was to be notice given up the chain to the head of the -- to the department. And that communication had not occurred.

So there was a breakdown in communications, under existing department policy. And obviously and as you yourself noted, when you head a major office like this, a U.S. attorney's office, AG's office, one of the important things is to have knowledge of what enforcement actions are being undertaken.

SEN. SESSIONS: Madame Secretary, that can have a chilling effect. And your comment I think was, we're going to get to the bottom of it. So you're saying that you did not intend to signal, to your agents, that they should not do workplace raids in the future.

SEC. NAPOLITANO: No. I intended to signal that they should follow the protocols that were in place.

And secondly with respect to the agents, we're not investigating agents. The questions I asked were law enforcement questions. For example, what was the plan, vis-a-vis the employer? Had they sought to get search warrants? And had those been turned down? And if so, why?

Did they have a prosecution agreement with the U.S. attorney's office in that district? Had they sought one? If not, why not? If they had, what was the status of that?

And that leads to the third issue, I think, you had there, which was the issue of some of the workers, who were arrested, being released and allowed to work.

That was a practice under my predecessor and has been a practice, in worksite enforcement actions, for many years. And the purpose and what you do there is, sometimes you arrest the worker.

And then you give them a delayed departure, in order to get their evidence, their cooperating evidence, against others that you may be seeking to prosecute, particularly those for whom you have to establish an intent requirement. It's only a delayed departure when that cooperation period is over. They are then removed from the country.

SEN. SESSIONS: Well, I would just suggest that I don't think there's been another raid of that kind since. And it may be the unintentional result of your comments and actions that agents got the message. So I hope that we'll see how those go in the future.

But I do agree that employers who violate the law, who knowingly do this, if they know that you're serious about this, I think, most of them will comply. And there will be a fairly small number that need to be prosecuted. And I hope that you will move forward on that. And I think it could have a big, positive impact on the difficulties we've been facing, with the immigration policies.

Madame Secretary, the problem of the Uighurs that are held at Guantanamo, who are certified to have been trained at a terrorist camp; U.N. has recently reestablished Mr. Haq, the head of their extremist organization, as a terrorist organization, as has the U.N. and the United States.

But it appears to me, contrary to law, the attorney general is suggesting that those Uighurs, since no one else wants to take them, would be released in our homeland. And under the statute, Title 8, USC 1182(a)(3)(B), it flatly prohibits people who trained in terrorist training camps from being admitted into the United States.

Have you had -- Congressman Wolf has, I believe, written you a letter about that. He's a champion of humanitarian causes worldwide. But he believes that this also raises serious legal questions.

And it sort of falls in your bailiwick. The attorney general isn't before us, but I know he's wrestling with what to do. So I'm going to ask you, what are the plans with regard to these Uighurs? And are you aware that, according to my reading, it's flatly prohibited for them to be released into the United States?

SEC. NAPOLITANO: Senator, several things. First, going back to your earlier question, I know of at least one workplace action that happened after Bellingham, so we continue worksite enforcement. And we have a multi-state human smuggling major action going on today. So we continue all of our enforcement actions, and we will very vigorously.

With respect to the Uighurs, this is part and parcel of the president's decision to close Guantanamo. And in addition to the statutory law, there are court orders with respect to release of the Uighurs that are in place. The attorney general has been directed by the president to put together a committee, on which the Department of Homeland Security sits, to deal case by case with each of the individuals, including the 17 Uighurs.

SEN. LEAHY: Senator Kohl?

SEN. HERB KOHL (D-WI): Thank you, Mr. Chairman.

Madame Secretary, over the past several days, federal officials have advised schools to close if they have probable cases of the swine flu. But yesterday federal officials changed their mind and advised schools to reopen. Is there a one-size-fits-all answer to every school? And what are you doing to assist local school officials in determining whether they should reopen?

SEC. NAPOLITANO: Senator, yes, the advice did change. And what we have done from the beginning of the H1N1 outbreak is say we are going to be guided by the advice of the doctors; what is it that we need to do to protect the safety of the American population from the spread of this new strain of flu? But we are very careful to say that that is going to change as they go through and the scientists find out more about the flu.

And as we've gone through the past days, what they have learned is that some of the lethality factors that could be present in a new strain of flu did not appear to be present, and that even people who contracted this flu were not experiencing flu worse than the normal seasonal flu. Now, realize in a normal seasonal flu, 36,000 Americans will die. But nonetheless, it was not more severe than that. And so after that consideration and, again, the accumulation of knowledge, the CDC changed its school advice. And so that revised guidance went up at the CDC yesterday.

What we are doing is a whole host of things with respect to communication. But the number-one thing we have done with respect to schools and school guidance is drive people to the CDC website and the Department of Education and work with them.

We will continue to do that, because even though this outbreak now, we seem to have reached a kind of active caution, if I might use that phrase, with respect to it, we are very much aware that we could have an even more severe outbreak in the fall, when our normal flu season occurs. And what we learned in this past week is that schools are a central part of how you can contain and what you have to make decisions on when you have a pandemic. So I think we need to further refine our decision-making about closures in the event that we do have a more serious outbreak this fall.

SEN. KOHL: Madame Secretary, most people agree that our current immigration system is fundamentally broken and that status quo is not acceptable going forward. President Obama has signalled his desire to fix the system.

In your opinion, what are the basic principles that should guide the overhaul of the immigration system?

SEC. NAPOLITANO: Mr. Senator, I think there are several things. One is, you have to have a strong and effective enforcement strategy that is sustained over time. And your enforcement strategy has to be a system that is not just at the border, but includes the interior of the country as well.

The second is that you need to look at reform of the entire visa system; in other words, how we award visas, what are the criteria, how long -- or how many are granted, particularly in certain categories. That needs to be reexamined.

And then, third, the Congress is going to need to address what do you do with the members -- or the people already in the United States, many of whom have been here for a number of years, who are undocumented, who are here illegally?

SEN. KOHL: Do you have an opinion on that third point?

SEC. NAPOLITANO: I would prefer to do that in the context of when the president and the Congress take up an overall approach to this immigration issue. I am focused now, as I believe my charge is, to enforce the law that we have, and to do it intelligently and effectively.

SEN. KOHL: Madame Secretary, last April, GAO released a report on whether the government was prepared to evacuate vulnerable populations, such as nursing home residents, in the event of an emergency. At that time, the Department of Homeland Security had not implemented GAO's recommendations to require their state and local grant recipients to plan, train or conduct exercises on such evacuations. What steps is DHS taking to ensure that vulnerable populations are not abandoned during emergency evacuations?

SEC. NAPOLITANO: Thank you, Senator. A number. One of them is, we have gone back, and are in the process of going back through a number of the GAO reports that have been issued in prior years, to say, well, what has the follow-up been, where are we?

Secondly, we're beginning to do some exercises to identify where state and locals are in respect to evacuation of special-needs populations. I cannot be sanguine here. I think that there are still issues to be worked out. And particularly in some places of the country where you're dealing with potentially enormous evacuations, logistics still have not been met. So we have some work to do here.

SEN. KOHL: Have you taken note of some of the extraordinarily good things that -- I believe that have been happening in Florida with respect to preparing for those kinds of evacuations?

SEC. NAPOLITANO: There are a number of states that have done a number of good things. I think one of the things we are concerned about right now is states that were making great progress and cities that were making great progress in their public health plans, their evacuation plans, the resources they would have in case a disaster were to strike. A lot of that has been put on hold and a lot of the personnel that would be involved in carrying out those plans have been furloughed because of their budget situations. So the strain on the nation from the economy is going to have and is having some impact on the preparations that were under way.

SEN. KOHL: Thank you.

Mr. Chairman, thank you.

SEN. LEAHY: Thank you.

Senator Feinstein.

SEN. DIANNE FEINSTEIN (D-CA): Thank you very much, Mr. Chairman.

Welcome, Madame Secretary. I wanted to just begin by thanking you for your attention to the border. As a border state, it obviously is of substantial importance. And the cartels have been creating havoc and violence for much too long now, and it's infiltrating, as we discussed, through the border into our states.

I wanted to ask you a couple of questions. The first is -- and I'll ask two at one time -- has there been any appreciable reduction in violence at the border since you began? And secondly, would you describe the department's effort to trace the origins of guns seized at the border? How is ATF coordinating with your department to investigate gun trafficking on both sides of the border?

SEC. NAPOLITANO: Thank you -- thank you, Senator. Yes, we have seen a reduction in violence. I don't think it would appropriate -- be appropriate for me to claim credit for that. I think the number- one factor in that was the decision of the president of Mexico to send the military into Juarez, which had -- has had a very strong impact on the number of homicides that were happening in the state of Chihuahua.

SEN. FEINSTEIN: So it is working.

SEC. NAPOLITANO: That is working. And the question there will be how long can it be sustained. And that's why we have to continue to work with Mexico on getting at the root cause of that violence, was -- which are these cartels, which, as you know -- that have plagued us for far too long. So we want to continue those efforts, working with Mexico.

In terms of the border communities on our side of the border, I've been to many of them since I've been secretary. We're in -- we are in -- we're having regular conference calls with the sheriffs and police chiefs along the border. What they report to me is they are not seeing any upswing in violence or spillover violence because of the cartel war in Mexico. It's obviously something that we want to stay on top of and be proactive about, because that's the last thing any of us want to occur. We're going to keep those efforts up.

SEN. FEINSTEIN: And the guns?

SEC. NAPOLITANO: With respect to the guns, the key issue there is for Mexican law enforcement, when they find a gun that's been used in the commission of a crime, to immediately give us the information so that it can be traced and so the source of the guns can be determined. That is in process now. We call it the e-tracing initiative. We are working with ATF on that.

In addition, we have added a lot of resources to what we call our southbound strategy: more inspectors, dogs, metal detectors and the like on the southbound lanes going into Mexico, where previously there had been none. And in that process we have already seized a number of weapons that were illegally going into Mexico.

SEN. FEINSTEIN: Good. Let me ask you a question, if I might, about the visa waiver program. I've worked for a number of years to try to mitigate the risks that I believe this program produces for our nation.

It has been expanded now to 35 countries, but DHS still does not keep track of who is entering and exiting the United States at all points of entry. And if those who enter through the visa waiver program in fact leave the country or overstay their visits or remain within their borders, that's still unknown.

So my question is this: What steps are you taking to track who is -- enters the United States through the visa waiver program and if, in fact, they have left, or overstayed the program? This has never been done. We don't know. And I think the time has come for it to be done -- the tracking, that is.

SEC. NAPOLITANO: Yes, Senator. And there are obvious reasons to do it that way, because then you know exactly who is in the country, how long they're entitled to stay, and, if they're an overstay, to take appropriate actions.

SEN. FEINSTEIN: Right.

SEC. NAPOLITANO: With respect to the visa waiver program, let me say that from an air-travel standpoint, ESTA is in the process of being implemented. A number of carriers are now using it, and that is being added on to almost weekly now. So that remains very effective, and through US-VISIT and other programs we are looking at ways to enhance that.

The problem you identify is much bigger than a visa waiver problem, and that is, how do you measure who has left the country -- not just at the airports -- and I believe that there will -- over the next years there will be a way to improve our ability to track at airports who has left; it's the land ports.

Because there we really don't have yet -- and I hesitate to say how much it would even cost to do so -- a process by which we really match who's in with who's going out.

I would be happy -- and really have put it on my radar -- what can we do as a nation to solve that particular problem.

SEN. FEINSTEIN: It's a big problem.

SEC. NAPOLITANO: It's huge.

SEN. FEINSTEIN: It's the soft underbelly of this country.

SEC. NAPOLITANO: It's huge.

SEN. FEINSTEIN: So thank you very much. My time is up.

SEN. LEAHY: Senator Grassley.

SEN. CHARLES GRASSLEY (R-IA): Thank you.

SEN. LEAHY: You came in. I'd thank you. Good to see you here.

SEN. GRASSLEY: Thank you, Mr. Chairman.

Say, what I'm going to ask you, Madame Secretary, you had nothing to do with, but you can correct it. So I want to bring this up.

SEC. NAPOLITANO: (Laughs.)

SEN. GRASSLEY: Last month, I got --

SEN. : (Off mike.)

SEN. GRASSLEY: Okay. Last month the Government Accountability Office released a report that I requested analyzing cooperation between DEA and other law enforcement agencies. This report was a real eye-opener for me, and the findings were even worse than I had anticipated.

Chief among the findings was that the current outdated memorandum of understanding for narcotics investigations, referred to as Title 21, is outdated, and because of that, quote, "There is a potential for duplicative investigative effort and concerns that officer safety could be compromised" -- with "officer safety could be compromised" emphasized -- end of quote.

So, a serious finding. The GAO essentially confirmed that long- standing turf wars between DEA and ICE has created an environment dangerous to our own agents. So I'd say that that's unacceptable.

The GAO ultimately made three major recommendations.

One, that the secretary of Homeland Security and the attorney general show leadership and renegotiate outdated MOUs.

Two, that the secretary of Homeland Security immediately order ICE to participate in the DOJ fusion center.

And three, that DHS and DOJ create a mechanism to review MOUs periodically, so we don't end up here again like 15 years since they've been negotiated.

These recommendations are long overdue. And I wrote to you this letter April 21st -- which isn't so long ago compared to how long it usually takes to get answers from bureaucracies and not necessarily your department. I asked you to implement these recommendations. To date, I haven't heard reply.

These law enforcement turf battles are unacceptable in this post 9/11 war -- world.

So, several questions. Could I expect a written reply soon from you?

SEC. NAPOLITANO: Absolutely.

SEN. GRASSLEY: Okay. Will you commit to immediate implementation of GAO recommendations -- after you've had a chance to study them, obviously -- if you don't know them as I do, I wouldn't expect you to answer if you haven't studied them. But I hope that you would look at them and implement them immediately.

SEC. NAPOLITANO: Senator, the attorney general and I have already been at -- before the GAO recommendations came out, were discussing these outdated MOUs, particularly with respect to Title 21 authority.

Some of those MOUs date back to -- I think one of them is 1975. I mean, they are really old. And so he and I served as U.S. attorneys together, actually, and it is our commitment to update those and make sure those MOUs match the reality of law enforcement today.

SEN. GRASSLEY: Yeah. Have you ordered ICE to begin participating with the fusion center?

SEC. NAPOLITANO: ICE does participate with fusion centers in different ways in different parts of the country. But I'd be happy to provide you more detail on that.

SEN. GRASSLEY: Okay. Well, again, then I would hope that you'd use GAO recommendations as a baseline for that.

Would you ensure that ICE begin participating -- well, you -- this was going to be a follow-up question. And you obviously believe, then -- you just told me that the MOUs should be updated immediately --

SEC. NAPOLITANO: Yes.

SEN. GRASSLEY: -- that you're in the process of doing that.

Do you believe that the current cap on the number of cross- designated ICE agents who are authorized by DEA to investigate Title 21 cases should be increased?

SEC. NAPOLITANO: I think that is something that goes along with redoing the MOUs. And it makes -- well, take the cross-border issue that I was just discussing with Senator Feinstein, where you have ICE agents really actively involved in doing cartel casework. Not to have Title 21 authority and to have to shift cases over to DEA -- that is something that really needs to be thought through again in light of the changing law enforcement needs that we have. So the attorney general and I have committed to work together and to update those basic operating documents.

SEN. GRASSLEY: Okay. And my last question, then: You believe that ICE should be given statutory Title 1 -- 21 authority, or do you believe that this matter can be worked out administratively through the process to revise MOUs?

SEC. NAPOLITANO: Senator, I think it might be quicker to try to work this out administratively between the Department of Justice and the Department of Homeland Security. I'd like to take that crack first.

SEN. GRASSLEY: Yeah. Well, and I'll be observing how that's going, and I hope you would consult with me. I am one that has been dealing with this for so long that I think we ought to take action. But it would be faster if you could do it, and I hope you're successful.

SEC. NAPOLITANO: Thank you.

SEN. GRASSLEY: Thank you, Mr. Chairman -- or I guess --

SEN. : (Off mike.)

SEN. GRASSLEY: Mr. Chairman, I'm done.

SEN. LEAHY: (Off mike.) (Laughter.)

(Off mike) -- have a roll call, and it's started. Senator Durbin, why don't you start? I'll go and vote and come right back. And then the -- if there is another Republican back here at that time, will follow you, Senator Durbin, and not another Democrat.

SEN. RICHARD DURBIN (D-IL): Thank you, Mr. Chairman.

Madame Secretary, thanks for being here. As a former governor of a border state, the story I'm about to tell you may sound familiar.

Two weeks ago I had a meeting in Chicago with students from one of our leading high schools. I met a young woman who was valedictorian of her class and was on a winning team in science competition, who had been accepted at an Ivy League university and was looking forward to pursuing a degree in biology, which may lead to medical research or becoming a medical doctor.

But she had a problem. She came to the United States when she was 2 years old. She was brought by her parents from Mexico. Her parents sold corn on the street corners, and she grew up here. She speaks perfect English, she's never known another country in her entire life, and she's undocumented.

I've introduced a bill for eight years now called the DREAM Act. My cosponsors this year include Senators Lugar and Menendez. And it says for young Americans in -- or young people living in America in her circumstance that they be given a chance, through either two years of service in the military or the completion of two years of college, to move toward legal status. I'm hoping, praying for so many young people who are counting on this that we will have a chance to consider and pass that this year. Could you tell me your opinion of the DREAM Act?

SEC. NAPOLITANO: Yes, Senator. In -- as a governor of a border state, this is one of those areas where everyone wants the immigration law enforced. We must enforce it.

It's part of our national sovereignty, among other things.

On the other hand, we have to have the ability to deal with some of the human issues that arise here. And the one that you have identified is one of the most acute. I supported the DREAM Act when I was governor. I support it now. One of the most moving things I've been privileged to do as secretary is to administer the Oath of Citizenship to men and women in our military who have been serving in Iraq, who were not citizens, who have elected to become citizens -- in a way, kind of mirrors what you're talking about in the DREAM Act. But it seems to me that the DREAM Act is -- is a good piece of legislation and a good idea.

SEN. DURBIN: Thank you. The first hearing I had of the Crime Subcommittee was on the Mexican drug cartels. I'm going to describe for the record a case which I bet you're familiar with, because it involves your state of Arizona.

In March, a state judge in Arizona dismissed charges against a gun dealer accused of knowingly selling about 700 weapons through intermediaries to two smugglers who shipped those weapons from the United States to a Mexican drug cartel -- over 700 weapons. Several of these weapons were recovered in Mexico after shoot-outs with the police, including a gun fight last year in which eight Mexican police officers were killed.

This case shows how difficult it is to convict gun dealers who are knowingly supplying weapons to the Mexican drug cartels. Federal law currently does not have tough criminal statutes on the books specifically aimed at arms traffickers. In order to prosecute gun dealers and purchasers who knowingly supply guns to Mexican drug cartels, prosecutors often have to charge these individuals with paperwork violations, such as making false statements on the purchase forms, and these offenses carry low penalties and can be very hard to establish.

What is your view of this situation? Is it simply a question of additional resources and personnel to deal with this exporting of guns to the Mexican drug cartels, or do we need to make sure that our laws allow us to prosecute those who knowingly supply weapons to these Mexican drug cartels?

SEC. NAPOLITANO: Senator, where we are taking this is to more effectively enforce the laws currently on the books. For example, until we began our southbound strategy, there really was no process by which we were even finding the guns that were being exported illegally across our borders. Secondly, improving the intelligence gathering about who is really funneling arms to these cartels.

So my view right now, and my charge, is to take the laws that we currently have and to fill the gap between the law on the books and what actually should be done from an enforcement status.

SEN. DURBIN: But I guess what I'm asking you is whether you have an opinion -- and maybe you don't at this moment -- as to whether the laws are adequate. This situation I just described to you is egregious. Your attorney general has been a leader -- of your state of Arizona -- has been a leader, and testified at our Crime Subcommittee hearing about the problems he's run into in trying to deal with this issue.

If you have an opinion, do you believe that we need to strengthen the laws when it comes to trafficking and smuggling firearms from the United States into any country, including Mexico?

SEC. NAPOLITANO: I don't have an informed opinion, because I think that opinion needs to be informed by, when you increase your enforcement strategy, what results you can actually obtain. I would rather be given some time to really do that and report back to you about what we're getting from our strategy with the existing laws.

SEN. DURBIN: I wish you would.

SEC. NAPOLITANO: Yeah.

SEN. DURBIN: One last question, if I might, H-1B visas.

Senator Grassley and I have introduced legislation to correct what we consider to be clear abuses. The most outrageous abuses, when it comes to H1-B visas, include the fact that some major companies overseas, primarily in India, have successfully managed to marshal many of these H-1B visas and make a profit off of them.

They charged the citizens of India coming to the United States on H-1B visas. And then when they -- after three to six years, when they are to return to India, they charge to place them in companies which will then compete with the United States. That is certainly not the stated intent of anyone who has come to me asking for H1-B visas.

Secondly there's a serious concern, very serious concern that Senator Grassley and I share, that many of these H1-B visa holders are going to displace American workers or be placed in a position where unemployed American workers might otherwise have an opportunity. And we think this has to be carefully monitored.

We feel, and I hope you share, that our first obligation is to American workers and to encourage if not hold accountable those firms that are looking to fill spots to first turn to the talent pool in America and particularly those who have lost a job.

Do you have any opinions on the H-1B visa program?

SEC. NAPOLITANO: Yes, Senator.

First, I agree with you. Our number -- you know, our top obligation are to American workers, making sure American workers have job. From an enforcement standpoint, my priority is to make sure that there's not fraud occurring within the H-1B program at all. Over the last months, we've added some tools.

We've added fraud-prevention tactics. We've begun looking at other, more standard, fraud investigatory techniques that weren't being used, in H-1B, that we are now going to employ, including things like site visits and worksite visits. We're going to keep at this, to make sure that the intent of that program is fulfilled.

SEN. DURBIN: Thank you very much.

SENATOR BEN CARDIN (D-MD): Madame Secretary, first of all, thank you for being here. Thank you for what you've been able to do and your commitment to our national security and homeland security.

I want to start with a hearing I chaired yesterday, on the Terrorism and Homeland Security Subcommittee, dealing with the issue on some passports. I know that's not under your agency. But passports are very much in your portfolio, as far as national security and homeland security is concerned.

It was brought to our attention, through Senator Feinstein and Senator Kyl, a GAO report in which they fabricated documents, in four cases. And four out of four, they were able not only to get passports but to get boarding passes for flights.

We looked at the type of information that was used, to get the passports. The driver's license was, I think, on its face -- should have been determined to be a fraud. And in two cases, they used Social Security Numbers that were fraudulent. And if they did the checks, it would have shown that they were inappropriate. They didn't go through the checks.

Four out of four is unacceptable. And I just want to bring that to your attention. I can assure you that this committee is going to continue to oversight that and do everything we can, to make sure that passports remain the gold standard for identification.

But I would hope that you would show some interest in this and follow up to make sure that, from the point of view of your reliance, upon passports, you have the right to believe that only those who are entitled to receive passports are receiving passports.

SEC. NAPOLITANO: Yes, Senator, I concur and share those concerns. And there's also the issue of the use of lost or stolen passports as well. So yes, we are paying quite a bit of attention to this.

SEN. CARDIN: Let me go to another hearing we had in our subcommittee, which dealt with sharing of information among intelligence agencies as well as with local law enforcement. And this has been a continuing battle. Senator -- former Senator Gordon pointed out that he felt that there were enough laws on the books but that they were not being used appropriately to make sure that the right information was placed in the data bank and there was appropriate access to that information, that we hadn't quite got that done yet, and local law enforcement could very well stop someone and not have the information they need in order to protect our homeland security.

On the other side of that, I'd bring to your attention the circumstances of the Maryland State Police, where they used resources for an investigation for over a year into lawful protesters who were exercising their First Amendment rights to express their opposition to the war and to the death penalty. That information was then made available to federal agencies inappropriately, and it's still unclear whether that's in our data bank or not.

So I bring this to your attention because I know that you called for a review of how information is shared, and I was hoping that you could perhaps bring us up to date as to where we are in your review as to whether we can improve the way that we bring information into our data banks, share it with local law enforcement, and protect the privacy and civil liberties of the people of our nation.

SEC. NAPOLITANO: Yes, Senator. Our review is not yet complete, but let me share with you a few of the things that I have found. Number one is, our sharing of information with state, local and tribal law enforcement is inadequate. In other words, a lot of it is not operational. It doesn't really inform somebody what, specifically, they're looking for and why.

We want to improve that real-time data sharing and improve the mechanisms by which we get information back, because really, from a law enforcement perspective, the vast majority of the eyes and ears out there are police officers and sheriffs' deputies and tribal police officers and the like, and we don't really have a good way to collect what they are seeing.

So I look forward and hope the Senate will confirm the nominee to be the head of our intel and analysis division, because one of his charges is going to be, and one of the value-added things, I think, our department can contribute is to take all of this intel that's out there and make it more value-added for state, local and tribal law enforcement.

The second thing I've added is that we must do a careful job of what I call a privacy analysis of what we're doing. We have brought into the department an expert on privacy law to help us and to look at things that are being done, practices that are being carried out, to advise us on the privacy issues that are implicated, all the more important because once something's in a database, it's almost, you know, impossible to take out of a database. So we've added that as part of our own internal procedure.

SEN. CARDIN: Congress had passed the law that established the Privacy and Civil Liberties Oversight Board. It has never been appointed. Will you take a look at what your position, what the administration's position is going to be in regards to moving forward with that oversight board, which was recommended by the 9/11 commission but has never been implemented? And if you're prepared to answer that question, now, fine. If not, I would appreciate you getting back to us, letting us know whether we can look forward to that board becoming effective.

SEC. NAPOLITANO: Senator, that one I'll have to get back to you on.

SEN. CARDIN: I could tell by your expression. So I appreciate that and would welcome that.

Let me just lastly point out one other issue, and then I'm going to turn it over to Senator Whitehouse. And that deals with biological security at our labs, which is of immediate concern to me. Fort Detrick's located in the state of Maryland. It was the location where the anthrax occurred, where our security was breached. And I just want to bring that to your attention.

Our subcommittee is also going to spend a good deal of effort looking at the relationship between the different agencies, because there's so many agencies involved. And one of our concerns is that as we've consolidated our homeland security in one agency, there are still lots of responsibilities in other agencies. And here the FBI has a responsibility, the Department of Justice.

And we need to better coordinate to make sure that we're using consistent standards to who has access to biological elements, for the security of our country. And I would just urge that we work together to make sure we have a consistent policy and one that protects the security of our country.

SEC. NAPOLITANO: I couldn't agree more.

SEN. CARDIN: Thank you.

Senator Whitehouse?

SEN. SHELDON WHITEHOUSE (D-RI): Thank you, Mr. Chairman. (Laughter.)

Madame Secretary, good to be with you.

SEC. NAPOLITANO: Senator.

SEN. WHITEHOUSE: You are now the secretary of Homeland Security, but earlier in our careers we were both United States attorneys and attorneys-general, with considerable responsibilities for what I might call hometown security. And if there is a refrain I hear more often than any other from my police chiefs in Rhode Island, it's that the budget for homeland security has ballooned in recent years to the point where they have funds at their disposal to buy things that they, frankly, think are almost ridiculous; while at the same time, the key elements of hometown security have been whittled away at.

You see repeated efforts in the previous administration to cut the COPS program, to cut Byrne grants. You see very important areas, like the reentry of folks once they have served their terms of incarceration back into society, getting scarce attention.

And I just want to hear your thoughts philosophically on -- to the extent to which we've properly balanced homeland and hometown security, and whether you are willing to work with Attorney General Holder to rebalance that.

I'll put my opinion right out there on my sleeve: I think that homeland security was favored at the expense of hometown security. And there's a, I think, reasonable case to be made that it was done for political purposes, to make America look like it was on a war-time footing with respect to the whole terror issue, in order to support the notion that this is a war-time president who we all had to rally behind. So I'm not sure that the case was made in the Bush administration entirely on the merits of the physical security of the American people. And I'd like your thoughts on that balance.

SEC. NAPOLITANO: Thank you, Senator. And, you know, it is a responsibility of the Department of Homeland Security, in my view, to provide resources that would enable hometown security -- your local police departments, sheriffs offices and the like -- to add on to their responsibilities the whole counterterrorism province; which previously they had not really been charged with, but everybody has a role to play here. The initial grant process out of the department --

SEN. WHITEHOUSE: I guess the scope of that role is what my questioning is about. It really strikes me as not all that necessary for, you know, Cranston, Rhode Island to be regularly involved in antiterrorism planning, or for folks in South Providence to see facilities being used for antiterrorism planning, when murders are happening regularly on those streets that aren't getting adequate attention.

SEC. NAPOLITANO: Senator, there I would say -- I would suggest that the local law enforcement role never changed. And that was always local and state obligations to pay for, with the augmentation of things like the COPS Program, which I strongly support and which I think had a real benefit on those kinds of cases. What the Department of Homeland Security's function was, was to add onto that.

Now, I think there were some things, as the department was stood up, that we have grown through; for example, how grants are distributed and what will be paid for. I think too often we paid for the newest widget, law-enforcement widget -- you know, the fancy whatever -- whatever --

SEN. WHITEHOUSE: Yeah.

SEC. NAPOLITANO: -- as opposed to really looking at risk and looking at manpower which is -- and effective technology. And those are the things I think really need to be our funding types of priorities.

So as we've gone through this, I think we can become much more sophisticated, as it were, in terms of what is the real value added of a Department of Homeland Security.

But that basic law enforcement function -- in terms of crime on the street, murders, armed robberies and the like -- remains a state and local prerogative.

SEN. WHITEHOUSE: I'd love to get to a place where the state and local folks, who are enforcing that prerogative, are doing a little bit less scratching of their heads, as to why the federal government is putting so much money into things that they consider to be of marginal or limited utility, while real and pressing problems that affect the security of homes and neighborhoods are left unaddressed.

So I just want to let you know that, to the extent that's a discussion that you care to have, this is where I am on it.

SEC. NAPOLITANO: All right.

SEN. WHITEHOUSE: The other thing I wanted to discuss with you is cybersecurity. We're going to have -- it's a very significant problem. And I want to share with you my concern that the classified elements of the previous administration's cyberstrategy, in my view, put us on a collision course with very basic civil liberties questions, if the trajectory is not adjusted and adjusted fairly soon.

I don't know exactly what is happening, at this point, in the 60- day review that's been taking place. It's getting near to its end. But I would encourage you to actively look at that question and be alert to that particular problem.

If you extend the Bush strategy, I believe, on the trajectory that it was launched on, it drives you to a civil liberties collision that is unnecessary and, I think, unhelpful.

It would create a whole element of drama and fighting and concern about an issue where, I think, if it's properly designed, we can come together. Because we have a huge common interest in preventing cyberattack.

SEC. NAPOLITANO: Senator, I agree.

And it's been one of my top priorities, as secretary, to be engaged with that 60-day review, to be identifying people to bring in the department, who are experts in the cyberworld, and to really understand the leadership role that, I believe, the Department of Homeland Security will need to play here, both with respect to the dot-gov sites, the civilian part of government, but also with respect to working with the private sector.

And of course, part of that are some of the privacy issues that are implicated. So this is a keen interest of mine and a keen interest within the department right now.

SEN. WHITEHOUSE: I think I'm just -- I look forward to working with you on it. Because I do think that time is relatively short, and before we get to a juncture in which we have to either stop expanding the plan or continuing its trajectory, into the areas of real and genuine civil liberties concern, or come up with some alternative.

Where we don't want to be is in a position where we get to that point and suddenly realize, whoops, we haven't thought this through. We really shouldn't do that because of civil liberties concerns. But we haven't developed Plan B that gets us around that obstacle.

I think that's where we're headed.

SEC. NAPOLITANO: Fair enough.

SEN. WHITEHOUSE: Thanks very much.

Mr. Chairman.

SEC. NAPOLITANO: Thank you, Senator.

SEN. LEAHY: Madame Secretary, I'm not going to ask you, at this point, what a comprehensive immigration bill might look like, because we're just beginning to look at it now. But I wonder if you might tell me what we should be looking at, as two or three of the most pressing problems in immigration today.

SEC. NAPOLITANO: Thank you, Senator.

It seems to me, and I've dealt with this immigration issue, on the ground, since I was a U.S. attorney in 1993, then as an attorney general, then as a governor, in the state where illegal immigration was actually funneled.

Operation Gatekeeper went into place in the San Diego-Tijuana area.

Operation Hold the Line went into place at the federal level in the El Paso area, and illegal immigration, by that, was actually funneled into Arizona, and that caused a whole host of consequences.

And so I've really been thinking deeply about this. It seems to me that we have to have the confidence of the American people that the immigration law is enforced and is enforced intelligently and fairly. And we need to sustain those efforts.

SEN. LEAHY: Do you think that that confidence is there today?

SEC. NAPOLITANO: It depends on who you ask and when.

SEN. LEAHY: Okay.

SEC. NAPOLITANO: But I think that we are making good strides there. And I think we can show quantitatively that progress -- significant progress has been made.

Second, I think we need to really look at what is the role of state and local law enforcement in that, because that has evolved over the last 15 years.

Third, I think we need to revisit all the visa programs -- the various visa programs that are out there, how they are enumerated, how they are adjusted, how we make sure that we not costing Americans their jobs, but at the same time, having that input of immigrants into our country that has been such a proud part of our own history.

And then lastly, we're going to have to look at the issue of those who are in the country illegally and have -- particularly those who have been here for quite a period of time.

SEN. LEAHY: Well, let's talk a little bit about them, because, I mean, you saw that certainly in your own state of Arizona and we see it even in my little state of Vermont, but nationwide, you got millions of people who are -- what are the expressions? -- living in the shadows or any other expression you want. They're in an undocumented area.

I've always remembered something I saw once. I was driving in from the airport in Los Angeles. There was a man walking down in his work clothes, appeared to be Hispanic -- walking down the street. We were stopped at a stoplight, so I could see this.

Somebody walking the other way had a large dog on a leash. The dog suddenly lunged out, bit the man in the leg, ripping his clothes. You could see blood spurting out. And the person with the dog just kind of looked at him, walked on, I think realizing this person is probably an undocumented alien; they're not going to be able to do a thing about this. They can't complain. They can't do anything about this dog biting them, because they have no status here.

Now that's just one minor thing. We also have also have what's used -- there are rights of people that you and I enjoy that won't mean -- it can be trampled on, on these people, because of their undocumented area.

Do you share what -- I mean, Secretary Chertoff told us and I think President Bush did too that it's not a practical solution to simply round up and deport these millions of people. You'd agree with that, would you not?

SEC. NAPOLITANO: The ability of our country to do that and the sheer logistics of doing that are overwhelming.

SEN. LEAHY: Yeah, and -- but all the more reason why I think we should try again on some kind of an immigration bill. I agreed with President Bush when he said he wanted a comprehensive bill. For a number of reasons, that fell by the wayside. And this committee will work with you on that issue.

Then in Vermont and elsewhere -- this may seem parochial, but talk about H-2A dairy.

We have -- we get H-2A workers. Certainly apple pickers in our state have traditionally come up for a few months in all. And that's fine. You pick apples a certain time of the year. Dairy cows have to get milked year round, as you know.

SEC. NAPOLITANO: That's right.

SEN. LEAHY: And under current regulation, dairy farmers can't obtain H-2A workers for their farms, so you end up employing undocumented workers.

I would like you to look at the H-2A rules, see how they might be changed, whether they should be changed, to help dairy farmers -- help those farmers who want people on a year-round basis; and also take a look at whether that can be done administratively, even without a change in the law. Will you look at that?

SEC. NAPOLITANO: Mr. Chairman, I'd be happy to. You're exactly right. H-2A is for temporary or seasonal workers, and because cows have to be milked every day, dairies don't qualify. On the other hand, it seems to me that we should be able to revisit this issue and, if we can't do something with -- and looking at this administratively, come back to you and say, "We can't do it, the Congress is going to have to act, this is what would fix the problem."

SEN. LEAHY: Thank you.

And one other thing, and this is totally parochial. On Interstate 91 in Vermont -- and I raised the same question with Secretary Chertoff and with others -- the Customs and Border Protection have been operating a temporary immigration checkpoint on Interstate 91, not up by the border, some distance from the border, closer to Massachusetts. I've consistently asked what's the reason for it. Agents were actually pulled off the border to be down there.

It is a pain in the neck for Vermonters and others. And if I wanted to avoid it, there are about a dozen parallel roads that go down -- in New Hampshire and in Vermont -- that go straight down to the border that don't go on the interstate. I mean, you've got something that's sort of semi-permanent; everybody knows it's there. Can we at least look at this and give me some assurance that this what I hope is a temporary aberration does not become a permanent blight?

That's -- I don't want to indicate by the nature of my question how I feel about it.

SEC. NAPOLITANO: (Laughs.) Thank you for that very neutral question, Mr. Chairman.

Without talking about the I-91 checkpoint, we had a similar issue with the I-19 checkpoint in southern Arizona. I can give you the theory of an interior checkpoint. And it's several-fold. One is that you have to have a system in border areas and into the country from border areas because you never catch everybody at the border. And in a way, what the interior checkpoint helps you figure out is how many people are actually getting through what you have so you can adjust what you have.

Secondly, at least the interior checkpoints I've been involved in, they're typically not alone. In other words, you may have the interior checkpoint, but it is coupled with other things that are going on around those side roads. And because people know who are coming in illegally, the knowledge passes pretty quickly about where there's a checkpoint. But you can -- it makes it easier to identify who's intentionally trying to evade the authorities, and that's not an uncommon law enforcement purpose.

But third, I want you to know, Mr. Chairman, that I've said I want to see what the yield on these checkpoints is, and is this really the best use of the manpower and the dollars that we have for effective border enforcement, not just in Vermont but elsewhere? And so we are doing that now.

SEN. LEAHY: Okay, I appreciate that. And I -- Secretary Chertoff isn't here, and I hate to pick on him in his absence, but he was saying -- knowing that I'd ask the question, he had a list of, well, we found X number of people doing this, X number of people doing that, and were able to get them.

And I said, well, by that same theory, if you're coming in from Maryland -- or Virginia, you have to cross bridges into D.C. Hundreds of thousands of people come in every day. I'm one of them. You could have checkpoints there. I guarantee you you'll find drugs. You'll find people on which there are outstanding warrants. You will find some illegal immigrants.

You will also bring the city of Washington, D.C. to a screeching halt, and you will have -- you will have a traffic jam that will extend to Pennsylvania and West Virginia and North Carolina and everywhere else.

So you have to -- I think there has to be some idea of -- what do we actually accomplish? Is the pain worth what we get? Is the pain worth the gain? And that's the -- I think the question that has to be asked. And I -- or are we better off using some of those same people and some of that same allocation of money on the border itself, and -- so that they can -- they can check on people?

And we don't have a closed border in between the United States and Canada. I can show you between -- from Maine to Washington state, I can show you places where you can easily cross the border. I mean, like -- a -- huge areas, not just in Vermont and North Dakota and everywhere else. We want to be realistic about what we do, how you could manage it and how -- you could stop traffic into Detroit, for example. These are -- these are areas we -- I think we have to be realistic.

I -- I'm not going to ask further questions. I see Senator Klobuchar in back. I'll yield to her. I've just been handed a note that Senator Sessions is coming back, and of course we won't end this until he has a chance to ask further questions.

Please go ahead, Madame Secretary.

SEC. NAPOLITANO: Thank you, Mr. Chairman. And as I said, that's exactly the analysis that we are performing internally: What is the yield for some of these techniques that we've been using?

SEN. AMY KLOBUCHAR (D-MN): Thank you very much. You thought you were done, but we're back. Thank you, Madame Secretary. I wanted to again thank you and the acting director for FEMA for the good job that you did with the flooding in Moorhead, Minnesota and Fargo, North Dakota. And it was much appreciated by those residents that FEMA was so present and helpful and continues to be helpful.

You and I have talked before about some of the issues with funding formulas, and how you have these two communities -- and we were just looking at these pictures -- I think it's hard for anyone to tell which is which, but one's Moorhead and one's Fargo, and they're both flooded; and that we have to make sure -- I hope in this case that the communities are treated the same for how the funding formula works, and that in the future we look at areas that are across state lines and make sure that, however the reimbursement, the cost-sharing formula works, that they are treated the same.

Because it just would seem outrageous to me that our -- one side of a bridge the neighbors get a 75-percent reimbursement, and the other side of a bridge they get 90 percent, when one state has almost double the unemployment of the other. So I just wondered if you could address that.

SEC. NAPOLITANO: Yes, Senator. And we are looking at many issues with FEMA reimbursement, and -- because there are some anomalies that happen. For example, you have communities on the opposite side of the same river flooded the same way, and yet, because the calculations are done based on state populations in part, you get different results.

Part of that -- I've asked, well, what is driven by policy, as opposed to actual rule that would have to be changed through the APA -- versus what's driven by the Stafford Act itself? We'll work with you and your staff on this, because it seems to me that when something is inherently illogical we ought to be able to fix it.

SEN. KLOBUCHAR: Well, that is very practical, so thank you very much for that.

The second thing I wanted to touch on -- I know one of the other senators mentioned the H1N1 virus, but being that I'm from the third- biggest hog-producing state in the country, just for you to clarify that this, in fact, you can't catch it from eating bacon or any pork products would be helpful.

SEC. NAPOLITANO: Senator, that is exactly right, and I've tried to have a ham-and-cheese sandwich every day last week to make that point.

SEN. KLOBUCHAR: (Laughs.) That's very nice. Well, I am going to serve bacon at our "Minnesota Morning" that -- where we invite all our constituents, tomorrow morning, just to make the point. So of course you're welcome to join us.

SEC. NAPOLITANO: Thank you.

SEN. KLOBUCHAR: The second thing is just, as it looks like we may be out of the woods -- we're not certain with this virus -- but there's always -- I keep hearing how, when they look back in history, that some of these viruses come back in the fall or at other times. Could you talk about the preparations being made in case that happens?

SEC. NAPOLITANO: Yes, Senator. With respect to the current outbreak, we're in what I call a state of active caution, but we have been able -- for example the CDC, based on the medical evidence it now has -- to ratchet back school closure, guidance, that sort of thing.

However, we know that this very well could come back in the fall. And it could come back in a more virulent form. We'll know better over the course of the summer because we may be able to find some things about what happens in the Southern Hemisphere during their flu season. So that will help inform decisions.

But we are not standing down any of the planning efforts. And although I think what happened over the past week, 10 days, worked well, we also saw areas that we need to make more robust, where things can be improved, where planning needs to be more thorough. We're going to work at that over the summer.

One concern I shared earlier with the committee is that an awful lot of this is dependent on state and local capacity, public health officials, you know, those sorts of things. And with their budget situations, a lot of that capacity has been diminished right now. So plans that were written two or three years ago may not match what their actual resources are. I think we have to recognize that and adjust accordingly.

SEN. KLOBUCHAR: Very good.

I also wanted to mention I did some work when I first came in, too much work, on problems with passports. And this is about two and a half years ago. I'm a brand new senator. We have all these idealistic young people in our state office. And literally we had to have two people full time helping people with their honeymoons, basically, because the previous administration had gotten so far behind on the passports, so that people who had legally applied for their passports weren't able to get them.

I think we had -- I just checked -- 1,500 cases in a few months in 2007. I will report we saved 17 honeymoons and lost one. So -- and I know there have been improvements, but that continues to be a concern. And Minnesotans cross the border to Canada all the time. So a more specific question would be, just what's going on with the Western Hemisphere travel initiative? You know, we have people that go back and forth to take ball room dancing, and they -- it's a big concern on the border that that go as smoothly as possible.

SEC. NAPOLITANO: Thank you, Senator. It's my intent that it go as smoothly as possible. We've been engaged in a pretty aggressive public relations campaign. We're working actually with Canada on that -- television, radio. We've distributed 6 million-plus tear sheets at the border telling people that in June of this year, WHTI is actually going to happen.

The State Department has -- in the wake of what happened several years ago, where they got that terrible backlog, they have staffed up to be able to process passports, and so we are really doing everything we can humanly think of to do to make sure that WHTI implementation goes as smoothly as possible.

That being said, I think there's a culture change that is happening. And that's more difficult to predict, because people have been used to going back and forth along that border pretty easily, as if really it were not a real border. And with WHTI it really becomes a much more formal designation as a border. And so we will try to ease that transition, but I think it's fair to say that that's a big change for that area of the country.

SEN. KLOBUCHAR: Exactly.

Last, I got a little bit involved in the TASA watch list issue, because we have -- I guess we have a lot of people named Johnson -- I don't know -- but a lot of people with common names in Minnesota. So we had people that were wrongly identified put on the watch list.

And we were working with the previous administration last summer on this, and I know the Secure Flight program is now being implemented.

And I wonder if you could comment about what's happened with that, if you believe there's going to be some reduction in these misidentifications, or how -- what you think the best way to proceed with this is.

SEC. NAPOLITANO: Yes, Senator. And I can think of nothing more frustrating than being put on a watch list and not being able to get off. So -- when there's no reason for you to be on the list to begin with. So -- except for name.

So we have worked to make more efficient the process by which someone gets removed from a watch list. But yes, you're right. The implementation of Secure Flight will help us really mitigate that problem moving forward. I don't think we can totally eliminate it, but I think we can mitigate it.

SEN. KLOBUCHAR: And the idea is to move it off the airlines more and to have it be with TSA?

SEC. NAPOLITANO: That's correct.

SEN. KLOBUCHAR: Right.

SEN. LEAHY: Thank you.

SEN. KLOBUCHAR: Okay. Thank you very much.

SEN. LEAHY: The WHTI -- for those of us on Northern border states, this is still a major question, and we'll work with you to ease it. It's -- certainly even in my state you have so many families where part of the family -- I mean, they live a mile apart or two miles apart, but they're in different countries. And they're just used to going back and forth. It becomes very difficult when you tell an 85-year-old "grand-pere" or "ma mere" they're going to have get a passport to go and see their grandchildren. It's difficult.

And the names, that is -- you've seen all the horror stories. A 1-year-old child -- parents couldn't fly with him because their name -- they're on a watch list. And they have to -- they bought the tickets -- can't fly, and they lost their ticket. They got to go get a passport to prove this 1-year-old child is not a 45-year-old person on the watch list.

You know, some point there's got to be somewhere some flexibility for people just to be reasonable. I remember when Ted Kennedy was a member of this committee, he was stopped a dozen times, or eight or nine times, anyway, on a flight he'd been taking forever to Boston because he was on a watch list. President Bush actually called him and apologized. And he said, "Well, I appreciate that, but I don't want an apology, I just want to be able to get on my airplane."

And these are things where there's got to be some ability to think it through.

Anyway, Senator Feingold has not had his first round, so we'll go to Senator Feingold and then Senator Sessions.

SEN. RUSSELL FEINGOLD (D-WI): Thank you, Mr. Chairman.

Madame Secretary, welcome. You touched on this issue to some extent in your answer to Senator Klobuchar, but I'd like to elaborate. The 2009 emergency supplemental bill drafted in the House reportedly includes over 1.5 billion (dollars) for HHS and CDC to combat pandemic flu, including money for vaccines, and $350 million to aid state and local public officials.

And the GAO has reported that a lack of state and local public health professionals is actually a significant obstacle to any response to a pandemic. And this may become more of an issue as the recession further constrains various states' budgets, as you well know.

In your view, are we allocating the appropriate level of pandemic resource at the state and local level, especially when you consider that vaccines may not always be available in time, and we need state and local assistance to track the spread of a virus, disburse vaccines and treat those who are already infected?

SEC. NAPOLITANO: Senator, I think the $1.5 billion that the president requested was a good figure to lean forward with.

I don't know that any decisions have been made about how specifically that would be allocated, say, between HHS and state and locals. I think that process, now, we can begin to undertake in light of what we've learned with this initial outbreak.

SEN. FEINGOLD: Okay. Switching to another topic, in February of last year The Washington Post reported that customs agents had been searching the cell phones and laptops of U.S. citizens and international business travelers coming across the border and then copying the contents. And I asked then-DHS Secretary Michael Chertoff about this issue, when he appeared before this committee a little over a year ago, and a few months later I held a separate hearing on this issue in the Constitution Subcommittee.

DHS's answers to my questions and its public statements and its practices and policies in this area were often confusing and even contradictory.

In September I then introduced a bill, the Travelers' Privacy Protection Act, to require that border agents actually have a reasonable suspicion of wrongdoing before they search laptops and other electronic devices.

Madame Secretary, the current policy has caused a great deal of consternation, not only among members of certain minority groups who believe they are singled out for heightened screening when they return from trips overseas, but I actually get a lot of comments of great concern from business travelers in general. In fact, testimony at the hearing I held indicated that some companies feel compelled to give their employees who travel overseas a special laptop that has been wiped clean of any confidential information, because they don't government agents looking at and potentially making copies of it when the business traveler returns.

Do you agree with me that the current DHS policy raises legitimate privacy concerns? And what steps are you taking to review and revise the policy?

SEC. NAPOLITANO: Yes. I think clarification is needed here. And we have put together a team within the Department of Homeland Security to issue pretty firm guidance and protocol for how you conduct a laptop search.

That being said, I would say, Senator, that in the course of the very few laptop searches that actually have been done -- and it is been a very small number that actually have been conducted -- they have found some fairly significant criminal activity on some laptops.

But moving forward -- we're a global society, people going from country to country all the time, they're crossing the border, they need to take their laptops to do business -- we need to have a better policy that takes into account some of those IP concerns, some of the privacy concerns. That's what we're drafting now.

SEN. FEINGOLD: Madame Secretary, I don't have any doubt that if you search laptops just sort of indiscriminately, you're going to find some good stuff. That's not the way we do business in this country, and should not do business in this country.

So I know you understand that. But I have held off reintroducing my bill because I wanted to give the new administration a chance to revisit this policy, but I can't just wait forever. So I'm wondering how soon I can expect a review to be completed and a revised policy to be put in place?

SEC. NAPOLITANO: We're working on it right now, Senator.

SEN. FEINGOLD: And when do you think it will be done?

SEC. NAPOLITANO: Senator, if I give you a time frame and don't meet it, you will be unhappy with me. But let me suggest within the next 45 days.

SEN. FEINGOLD: All right. Well, I appreciate that, and I understand that you can't be precise. I appreciate your willingness to say that.

On a related and somewhat broader point, I wanted to bring to your attention two reports issued this past month by a civil rights organization -- organizations. The Asian Law Caucus and the Stanford Law Immigrants Rights Clinic published a study entitled "Returning Home: How U.S. Government Practices Undermine Civil Rights at our Nation's Doorstep."

And Muslim advocates released unreasonable intrusions investigating the politics, faith and finances of Americans returning home. The personal stories in these reports of American citizens being repeatedly detained and questioned for hours at a time; having their possessions taken from them; missing flights and having to pay for stays in cities away from home are troubling.

A progress report the DHS issued on April 29th indicated that you have sent the DHS Office of Civil Rights and Civil Liberties to meet with leaders of the Muslim, Arab and Somali communities in seven major cities.

I'm sure the reports from those meetings will yield similar stories. Will you direct your staff to review these reports and get back to me with your response to the recommendations that these organizations have made for changes in DHS policies?

SEC. NAPOLITANO: Yes.

SEN. FEINGOLD: I thank you, and I thank the chair.

SEN. LEAHY: I like these lengthy answers. That -- (laughs) -- it makes life a lot easier up here.

Senator Sessions.

SEN. SESSIONS: Thank you. Mr. Chairman, I think while I was out you made reference to comprehensive immigration reform. We need to fix our immigration system. It's something I support.

Let me just share with you my personal view. I think it's an accurate political analysis and reality. The American people correctly are dubious of a plan that gives lawfulness now to people who came in illegally without confidence that the legal system is going to work in the future and that we're not going to be back in the same situation just a few years from now. And, in fact, that amnesty, or that status that we provide for those who entered unlawfully, it becomes a magnet or a message abroad.

There's been some progress even under President Bush's administration to see -- I think the numbers show a decline in illegal immigration into the country. We're on the right track. So that's why I'm encouraging you to say and do things that make this trend continue.

Because as a manager, there's a concept I learned during the surging crime years of the '60s and '70s. And it -- when you're -- when the crime starts going down and your agents are going up, then you have a certain leverage and ability you didn't have when you had a low number of agents and a surging number. So the numbers are going down. This puts you in a position to execute some policies that will work, and I want to ask you about one of those.

And I think when the American people realize that the broken pipe is being fixed and we're not just mopping up the water but we're fixing the leak, and -- we can have a far better discussion about how to deal fairly and humanely with people who've been here a long time.

Looking at the Operation Streamline -- and this relates back to my previous questions about whether it's a crime to enter the country, and I think you -- I know you know that it is a misdemeanor on your first entry and a felony on the second -- they have -- in five different border sectors, I think those in Arizona, all of them -- maybe all of your --

SEC. NAPOLITANO: It's both the Tucson and Yuma sectors, yes, sir.

SEN. SESSIONS: Okay. Both Tucson and Yuma. In Yuma, pre- Streamline -- and Streamline is where those who've been apprehended aren't just taken back to the border and sent home the same day; that they're held for at least a few days and they are required to plead guilty to a misdemeanor and then they go home. For several reasons, they've told me, this is working better than they imagined that it would.

In Yuma in '06, there were 117,000 apprehensions. That gives some picture of the scale of what we're doing. In '08, that had dropped to 8,000, a 93 percent decrease. I'm sure there have been barriers in other things, but the prosecution, according to anecdotal evidence I've gotten, has told people that, well, the United States has changed their policy. It's no longer an open border. They're really serious about this.

And when you just take them back and say, "Come try again next week," that's not a good message. So you have a responsibility to send a clarity of message not only to the United States but to the world, who might be interested in coming illegally.

At Laredo, the numbers in '07 were 56,000 arrests; partial implementation of Operation Streamline in '08. The next year, the -- had dropped to 43,000, a 23-percent decrease.

In Del Rio, pre-Streamline, there were 68,000 arrests; when Streamline had been fully implemented in '08, a 70-percent decrease. Are you familiar with this program? Have you been briefed on it? And are you committed to continuing it where it's in existence? And will you expand it?

SEC. NAPOLITANO: Senator, I'm very familiar with Streamline. And as you note, your first time across is a misdemeanor. And what Streamline does is -- the historical practice in these border districts has been not to use the judiciary -- the Article 3 courts, whatever, for the misdemeanors, and to handle these as departs, as civil matters. And so what Streamline did was change that decision; say we are at least going to pursue the misdemeanor there.

At the same time that Streamline was happening, other things were happening. The fences were going in, or other vehicle structures. More border patrol agents were being placed on the ground. The National Guard had been called out -- that was my suggestion -- but the National Guard was being placed in these sectors.

SEN. SESSIONS: Right.

SEC. NAPOLITANO: So that all happened together. And then, of course, you had the economy change, and that had an effect on overall immigration numbers in Streamline and non-Streamline jurisdictions as well.

However, I believe that these kinds of strategies that sent an enforcement message are very useful, and they need to be sustained. And I want to get to the point implicit in your question, which is we need to keep these efforts up, even as numbers are going down. We need to sustain them over time.

And one area that's outside my lane, but it's in this committee's lane, is the impact on the court systems in that part of the country when you adopt these strategies. Because you're talking thousands of people, literally, that now get funneled into Article 3 courts in very sparsely populated border districts, and marshals' offices that have to help with transportation and detention and all the rest. We're trying to provide support, at least on the marshals side. But the courts themselves are very stressed by this.

SEN. SESSIONS: But I would note that when you have a 70-percent decrease from the peak of -- the commencement of enforcement, and those numbers continue to drop each year, the stress has been high on the courts and the prosecutors, but it's moving in the right direction. They actually have fewer cases. And I think they've been provided some additional resources to handle the challenge.

So -- well, do you think -- you sound like you do favor those programs. And will you consider expanding it?

SEC. NAPOLITANO: Yes, I -- I favor them, implemented in the right way, and when they are producing results that you can measure. And we will be looking at other strategies in other places as well.

SEN. SESSIONS: Well, you could follow through on these programs and do some other initiatives, and be able to preside over real improvement, I think, in the lawfulness of our immigration system. And I think that's your challenge. I think that's what the American people would like to see you do.

SEC. NAPOLITANO: I think the president has asked me to make sure that we have strong and vigorous enforcement of our nation's immigration laws.

SEN. SESSIONS: And we'll be looking at those numbers, I think, and the best numbers we can get. And I think the American people will hold you accountable for progress, and I think we can have some.

SEC. NAPOLITANO: Thank you, sir.

SEN. LEAHY: Thank you. Thank you, Senator Sessions. And again, I welcome you here in your new -- new role on the Judiciary Committee.

And Madame Secretary, you and I have known each other for years. You were your usual unflappable and highly-qualified self here. I think that the -- this has been a very difficult time in the United States, and a lot of the issues have come before you.

And I think you've done not just yourself and the president but the country great credit with the way you've handled it.

Your appearances on the various television shows, the various media, have been, I know, in my state, reassuring to a lot of people across the political spectrum. And I think that is a very important role that you carry. And I think that it's been reassuring, because they know behind what you're saying is an extraordinarily competent person.

So I thank you very much. And we will stand recess.

SEC. NAPOLITANO: Thank you, Mr. Chairman.

END.


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