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Hearing of the Immigration and Border Security Subcommittee of the Senate Judiciary Committee

Location: Washington, DC


SEN. SAXBY CHAMBLISS (R-GA): The subcommittee will come to order. Last month GAO issued a report titled "Border Security: New Policies and Procedures are Needed to Fill Gaps in the Visa Revocation Process." That title still is appropriate for today's hearing, even as we look more generally at the visa process. Overall coordination and information sharing between the State Department and the Department of Homeland Security is essential to our national security after September 11. We must reshape our government in accordance with the president's vision for homeland security, from the creation of a new department to the culture change away from old habits and down to the details of interagency cooperation.

The June GAO report brings into sharp focus the lack of communication between the State Department's Consular Affairs and the Homeland Security Department's Bureau of Customs and Border Protection, as well as its Bureau of Immigration and Customs Enforcement. The report exposes how suspected terrorists may have entered the country, even after their visas had been revoked. In this instance, terrorism is still illustrative of the underlying problem. Policies and procedures must be adopted and formalized to stop immigration related threats to our nation's security.

I understand the State Department has implemented a new code to inform our border inspectors in real time about visa revocations, so that the information sharing mistakes of the past won't be repeated. I applaud this progress, but it remains to be seen whether this code is itself the silver bullet to stop all terrorist threats. I am concerned that law enforcement is already hamstrung due to the lack of information sharing, and the use of the code alone may not address this problem. Several recommendations for the June GAO report remain unanswered and today we will seek answers for the State and Homeland Security Departments on those and some other issues.

Several of the issues that we will address today include is the State Department transmitting sufficient information on visa revocations, including information to assist immigration and law enforcement with removal or prosecution? When will the new department in accordance with the Homeland Security Act take its lead role in the visa process and formulate written policies and procedures? Are State and Homeland Security agencies sharing information fully enough to ensure that terrorists and other threats do not enter the United States, and in case they do, that action can be taken against them?

It is important to establish policies that are clear and procedures that are institutionalized, whether in a memorandum of understanding between departments or with access to agency watch lists. One problem we saw after 9/11 was the lack of information sharing, either vertically within our federal agencies, but more significantly horizontally across federal agencies. It is not just keeping that bad guys out that is important, but when they do get here, anyone who has a suspicious background, we need to make sure that everybody is on the same wavelength with respect to sharing of information on individuals in the right way.

Today we have before us, GAO's expert in this area, Mr. Jess Ford. Mr. Ford authored the most recent June 2003 report as well as its prequel, the October 2002 report, titled "Border Security, Visa Process Should be Strengthened as an Anti-Terrorism Tool." We appreciate Mr. Ford being with us today, to lay out the issues and the remaining problems. Our second panel includes the three key agency leaders on visa issuance, border security and immigration enforcement. The State Department's deputy assistant secretary for visa services, Ms. Janice Jacobs, and within the Department of Homeland Security, the assistant commissioner for the Bureau of Customs and Border Protection, Mr. Jay Ahern, and the director of operations for the Bureau of Immigration and Customs Enforcement, Mr. Michael Dougherty.

I appreciate all of you making yourselves available for today's hearing and we look forward to hearing from you. This issue of information sharing has been of particular importance to me, during my two years of service on the House Intelligence Committee, it was pretty obvious both before September 11, but more significantly after September 11, that we simply were not sharing, not just not sharing information, but not sharing the right kind of information between agencies, and our failure to do that probably didn't allow September 11, or the instance of September 11 to happen, but certainly we had no opportunity to, or it lessened our opportunity to interrupt and disrupt that specific instant and other terrorist activity, because of the fact that we were not sharing information between agencies.

Before going to Mr. Ford, my colleague Mr. Cornyn is here, Senator Cornyn if you have any comments that you would like to make before we hear from Mr. Ford, we would be glad to hear that at this time.

SEN. JOHN CORNYN (R-TX): Just briefly, Mr. Chairman. Thank you very much, and thank you for convening this important hearing. I too am anxious to learn about the status of our visa issuance and information sharing and enforcement post 9/11. But there are other concerns strictly -- beyond strictly the concerns about terrorist activity and terrorists coming into our country illegally and whether we are doing the kinds of things that will allow us to, in your words, to identify the bad guys and make sure they don't do us harm.

Yesterday the Judiciary Committee had hearings on free trade agreements that had been proposed with Chile and Singapore and some immigration related provisions of those free trade agreements which would create another category of entrant into this country, temporary professional workers outside of our traditional immigration system. And as you and I have discussed, Mr. Chairman, on Thursday I filed a Guest Worker Bill to hopefully begin to restart the debate that had been put on the backburner in the last two years in the wake of 9/11, with how we deal with the huge number of people that we know are illegally in this country and who we simply don't know who they are, or for sure exactly why they're here.

And a means to try to determine that in addition to provide a lawful framework under which people who do want to come work in this country can do so, and provide the labor that, frankly we need. And at the same time provide some protection against exploitation.

My point is that I'm concerned that our administrative process for keeping track of immigration and issuance of visas and information sharing, may not be up to the current task, and therefore causes me concerns about additional burdens that may be placed on our State Department and Department of Homeland Security, and doing the other things that we need to do on top of the mandate we have in a post 9/11 environment.

And obviously we want to make sure that our enemies cannot thread the cracks in a system that is not functioning as it should and threaten our homeland. So, thank you for convening this important hearing and I look forward to hearing from these witnesses that you've asked to appear before the committee.

SEN. CHAMBLISS: Thank you, Senator Cornyn, and we're going to be joined by other colleagues off and on during the hearing, and it may be that some of them will want to have opening statements, which they certainly will be allowed to make at that point in time. Mr. Ford, we welcome you here today, we appreciate the work that you have done, we have read your report, which has been very enlightening in any number of ways and we look forward to hearing your testimony. Before doing so, as I indicated we are now joined by one of our colleagues, and Senator Durbin, if you have any opening statement you wish to make, we'll certainly -- okay. Mr. Ford, again thank you for being here, we look forward to your testimony, and you may proceed.

MR. JESS T. FORD: Thank you, Mr. Chairman, members of the subcommittee. I'd like to have my full statement submitted to the record, I plan to briefly summarize my comments.

SEN. CHAMBLISS: Without objection, that will be appreciated.

MR. FORD: I'm pleased to be here today, to discuss our recent work on the visa process, and some of the ways we believe this process could be strengthened as an important part of our country's border security strategy. Mr. Chairman, citizens of other countries seeking to enter the United States temporarily for business, tourism and other reasons generally must apply for and obtain a U.S. travel document called the non-immigrant visa at U.S. embassies or consulates abroad before arriving at U.S. ports of entry.

In deciding who should and should not receive a visa, the State Department and its consular officers must perform a risk assessment, that balances the need to facilitate legitimate travel, with a need to protect the United States against potential terrorist and to deter others whose entry is considered likely harmful to U.S. national interests. Since September 11, visa operations have played an increasing important role in ensuring the national security of the United States. The Departments of State, the Department of Homeland Security and the Department of Justice as well as other agencies, are involved in the visa process, with each playing an important role in making security decisions.

My testimony today is based on two of our recent reports on the visa process that contained observations and recommendations on the ways in which the national and border security can be strengthened through the visa process, implementation of clear visa policies and guidelines and the sharing of information and data. The first report we issued in October focuses on the effectiveness of the visa process as anti-terrorism tool and recommended ways that the process could be strengthened. The second report issued in June of this year provides examples of how weaknesses in policy and interagency coordination on the visa revocation process are effecting border security.

Our analysis of the visa process shows that the Departments of State, Homeland Security and Justice could more effectively manage the visa function if they had clear and comprehensive policies and procedures and increased agency coordination and information sharing. Our October report addressed the need for a clear policy on how the State Department and its consular officers should balance national security concerns with the desire to facilitate legitimate travel when issuing visas. It also discussed the need for more coordination and information sharing to realize the full potential of the visa process.

In addition, there is a need for more human resources and training for consular officers. We made several recommendations to the Department of State and the new Department of Homeland Security to improve this process, and the State Department has taken several actions to implement these recommendations. Our June 2003 report also pointed out that the U.S. government does not have a clear and comprehensive policy on the interagency visa revocation process. This process should be used more aggressively to alert homeland security and law enforcement agencies that individuals who entered the country before their visas were revoked might be security risks.

However we found that the process broke down, because information on visa revocations was not shared between the State Department and appropriate immigration and law enforcement offices. It broke down even further when individuals in question had already entered the United States prior to revocation. In our review of 240 visa cases that were revoked by the State Department from September 11 to the end of calendar year 2002, we found numerous cases where notification of the revocation did not reach appropriate units within the former INS, now called the Bureau of Customs and Border Protection, and the Bureau of Immigration and Customs Enforcement, and the FBI.

We also found evidence that individuals whose visas were revoked because of terrorism concerns entered the United States and may still be in the country. We found that a lack of formal written policies and procedures may have contributed to a lack of timely notifications, posting of lookouts, and investigations of persons who may have entered the country. For example, INS said that it did not receive notification from the State Department in 43 of the 240 cases we analyzed. In another 47 cases, the INS lookout unit did not receive the information on a timely basis. We also identified at least 30 cases where persons had entered the United States before their visas had been revoked.

INS investigators were not always informed of these cases and therefore did not follow up on all of the cases. To remedy the weaknesses in the visa revocation process, we made recommendations to the Departments of Homeland Security, State and Justice to develop specific policies and procedures to improve the interagency visa revocation process and to ensure prompt notification from the State Department to immigration and law enforcement agencies. We also recommended a specific policy be established on actions that the immigration and law enforcement agencies should take to investigate and locate individuals whose visas had been revoked because of terrorism concerns. The Department of Homeland Security agreed with the thrust of recommendations.

Mr. Chairman, I'd like to conclude my comments by reiterating the need that there must be clear, comprehensive policies and procedures governing U.S. visa processes to ensure that our borders are protected from potential terrorist threats. This concludes my statement. I'd be happy to answer any of your questions.

SEN. CHAMBLISS: Thank you very much. I want to start out by going back to your June 3rd report, and on page 8 you state in here, "Homeland security officials said that the issue of whether a visa revocation after an individual is admitted on that visa has the effect of rendering the individual out of status is unresolved legally." Can you tell me what was meant by that, and if that's unresolved legally, is there any action being taken to try to resolve that so that they'll know what their power and authority is and can take action on that?

MR. FORD: Mr. Chairman, the issue that we raised in the -- that you referred to had to do with discussions that we had with the Department of Homeland Security and the Justice Department regarding the difficulty of actually removing an individual who had already entered the United States on a legitimate visa and then subsequently had it revoked. And the discussion really focuses on whether or not there's enough legal basis to have that individual removed, and the commentary that we had with the agencies essentially focused on the level of evidence that's required to have an individual potentially removed. And there's some disagreement between State Department and DHS and I believe Justice over the level of evidence that's needed and whether or not they can easily remove an individual because they might have suspicions he might be a threat to national security.

SEN. CHAMBLISS: The June 18 hearing before the House Government Reform Committee, you testified that at the time neither the State Department or Homeland Security had a specific policy on using visa revocations as an anti-terrorism tool. Since the release of your June GAO report and that House committee hearing, are you aware of any action taken by the departments to formalize policies or establish procedures, and if so, in what ways do these actions meet or fall short of GAO recommendations?

MR. FORD: Mr. Chairman, it's difficult for me to answer that question directly. The State Department did not comment on our recommendations in our report that we issued in June. At the hearing you referred to, they mentioned the new coding process that they put in place, and they had indicated that they had tested this process and based on those tests they indicated that the notifications were going to the appropriate authorities. We have not independently had an opportunity to verify that, and we do not know at this time what changes, if any, they have made in their procedures related to the revocation process. We would like to see a little more information about what actions they have actually taken.

SEN. CHAMBLISS: Are you scheduled to do any follow up with them in an oversight capacity?

MR. FORD: We have not been formally tasked with that by anyone on Congress. We are following up on some questions that the House asked us related to the chronology of the events of our conversations with the Justice Department, but we have not to date been asked to follow up on that. We do routinely however follow up on our recommendations with agencies every 60 days.

SEN. CHAMBLISS: Well. After we hear testimony from the agencies today, we very well may want to give you a schedule to do that. In your June report you state that INS and the FBI did not routinely investigate, locate or take any action on individuals who might have remained in the United States after their visas were revoked. INS and FBI officials cited a variety of legal and procedural challenges to their taking action in these cases. What specifically were the legal and procedural challenges cited by the former INS, now Homeland Security, and have there been any efforts to overcome those?

MR. FORD: I'd like to answer that in two ways. First with regard to the issue of routine investigations, we had some subsequent discussions with the former INS officials that investigate these cases, but they indicated to us that in every case that they had been notified by the lookout unit within the former INS or by State, they did in fact investigate. Our point was that many times those notifications were not reaching them. As a consequence to that, a number of the individuals that we had identified that may have entered the country they were not investigating because they hadn't been informed that these individuals were here or that they might be potential risks.

The other issue that you mentioned really focuses on a comment I made earlier, regarding legalities of the difficulties involved in trying to investigate, collect evidence and remove individuals that might be suspected terrorists in the country, and the discussion there really focused on the difficulty that they felt they would have to make those cases.

SEN. CHAMBLISS: Thank you. Gentleman, I -- we have set the timer at five minutes, but we're going to be liberal and we'll go around as many times as you want to, but I thought we'd just do it at five minutes so we can make sure everybody has an opportunity.

Senator Cornyn?

SEN. CORNYN: Thank you, Mr. Chairman.

Mr. Ford, I appreciate the work you've done which you've outlined. I guess trying to put this in a larger context, did your study primarily do -- have to do with the -- as I understand visa issuance policies and the level of coordination and cooperation between the different federal agencies that were responsible for this process?

MR. FORD: Mr. Senator, we have two separate reports that I should make a distinction on. The report that we issued in October of 2002 was a more comprehensive review of the visa issuance process, primarily focused on the role of the State Department and its Consular Affairs offices overseas, and that report really focused on a comparison of policies and practices prior to 9/11 and policies and practices after 9/11, and the differences in the way that the department was focusing on the issuance of visas.

The report in June that we issued is more involved with the interagency process of identifying visas that had been revoked and making sure that they were -- that the information was provided to the appropriate domestic authorities, in this case law enforcement and immigration. So the second report really focuses more on the interagency process.

SEN. CORNYN: But your focus was on people who had actually applied for and received a visa and -- as opposed to people who have entered this country without even making any pretence at doing so through the legal process.

MR. FORD: That is correct. Our analysis was based on all cases where there was an illegal visa that was either reviewed and/or issued and later revoked.

SEN. CORNYN: And I want to make sure I understand -- Senator Chambliss asked you about, and I believe you addressed the question of what sort of legal -- what sort of evidence would be required to expel someone whose visa had been revoked, what that legal test might be or what the case -- what they might have to prove in order to expel that individual, is that correct?

MR. FORD: That is correct and the issue here is that we felt that there was some disagreement between the State Department and the Department of Justice and DHS with regard to what level of evidence or test might be required.

SEN. CORNYN: And are you suggesting that it's -- that the State Department or the United States of America, any of agencies, can't expel somebody whose visa has been revoked for any reason?

MR. FORD: Well, Senator, I have to tell you that I'm not a lawyer. My understanding is -- I can't really answer that directly because I don't know -- I can't tell you what the level of evidence is required. What I can tell you is that there was some disagreement between the agencies with regard to that level of evidence. And in the case of the State Department they felt that they needed a higher level of evidence in order to, for example, issue a visa. With regard to the Department of Justice, for example, in October when we reported on that issue, they felt that the level of evidence didn't need to be as high as the State Department. Now, we had recommended at that time that they get together and try to resolve that. I don't know what the current status of those discussions are.

SEN. CORNYN: Whatever the standard is though, after someone who's entered this country on a visa, after that visa has been revoked, is there any question about our legal ability to expel that individual?

MR. FORD: Yes, my understanding is that we -- that the fact that the visa itself has been revoked, is not a basis to have someone removed. That individual has due process, and there has to be a process that they go through before they can be removed. They can -- when the difference is that when an individual has their visa revoked prior to entering the country, my understanding is the law is clear that they can be unilaterally put back on a plane and -- without any due process. Once an individual comes into this country legally, with a legal visa and then subsequently has it revoked, there is a -- some due process that has to occur, they cannot just be removed unilaterally.

SEN. CORNYN: Would it be different for somebody who's entered in -- come to the country on a visa and then that visa's simply expired as opposed to being revoked, do you know if there's any difference in the legal standard of what needs to be shown before they can be deported?

MR. FORD: My understanding is if this -- if the visa is expired they can be removed or deported from the country.

SEN. CORNYN: Well, my understanding is that we have between eight and 10 million people who have come to this country illegally, and are currently still in the country, and most of whom have come to the country on some form of visa, and have simply overstayed their visa in terms of it's expired and they stayed here. And while I applaud the efforts that are being undertaken to identify those for whom a visa should never be issued or those who represent threats to the United States and whose visas should be revoked, my hope is that we will look at the eight to 10 million people who are here, and try to figure out why they're here. Hopefully they're all here for good purpose, and we can address that, but it seems like this is only scraping the surface of the true threat to our homeland security.

Thank you, Mr. Chairman.

SEN. CHAMBLISS: Senator Durbin?

SEN. RICHARD J. DURBIN (D-IL): Thank you very much, Mr. Chairman, and I'd like to ask that my statement by Senator Leahy be made part of the record.

SEN. CHAMBLISS: Without objection.

SEN. DURBIN: And I'd like to thank you, Mr. Chairman, for announcing at the outset that this is going to be a much more liberal subcommittee from this point forward.


SEN. CHAMBLISS: I've heard two judges, for two days now.

SEN. DURBIN: I also think that most members of Congress, certainly this Senator, should be given some opportunity to have several of my staffers on the Department of Homeland Security payroll, since 85 percent of my casework in Chicago is about immigration, visas. We just spend more time on that than anything else, and I don't profess expertise on it, but a lot of frustration which is mirrored by my staff.

Let me ask you, Mr. Ford, if I can, I want to put this in context. At one point here in the GAO report you say 500 million people enter the United States legally each year, 300 million are non- citizens. I assume that it means that those coming in from Canada and such obviously don't need visas. How many people come into the United States each year legally by visa?

MR. FORD: I believe in our October report the -- I believe it was 10 million cases of non-immigrant visas that -- people had come in on non-immigrant visas.

SEN. DURBIN: Temporary visa situation?

MR. FORD: Correct.

SEN. DURBIN: Right. And how many are denied -- visa applications are denied each year?

MR. FORD: I don't have that information across the board, I can probably get it for you. It -- I do know it varies by country, the denial rate.

SEN. DURBIN: Incidentally for my colleagues, if you get a chance go to Mexico City and see how they handle it, they do a great job at our consulate there. I really want to salute them for what I think is a very humane and professional way that they handle visas for the people that go through that process. Let me ask you this: we asked four or five years ago for the INS and the Department of Justice to come up with some sort of software or program that would keep track of people who've left the country, who were here on a legal visa and left, so we would have some sort of inventory at any given time about how many people were still here and their visas, as far as we knew it, had expired. Has that ever been done?

MR. FORD: I am not aware whether that's been done or not, again I -- that's something I can check on and get back to you on, but I don't know the status of that.

SEN. DURBIN: I think the answer is it has not been done. I think it's been four years since we asked for it. To give you an idea even before 9/11, this was something that seemed so obvious so we would have some net inventory of expired visas in the United States. And so, as I understand what you have in your report here, in a span of 16 months, September 11th 2001 to December 31st 2002, there were 240 visas revoked, albeit for terrorism related purposes, is that correct?

MR. FORD: That's correct.

SEN. DURBIN: Which is about 15 a month, roughly?

MR. FORD: Roughly.

SEN. DURBIN: And you say that no notice was given to the INS of these revocations in 43 of the cases, is that correct?

MR. FORD: That's correct.

SEN. DURBIN: So the communications clearly broke down. The agencies that are supposed to be working together didn't work together in this instance. Then you have this other reference that 47 notices of revocation were sent by cable. When you say cable, I think of Western Union. In the world of e-mail, what is the world of cable all about?

MR. FORD: Essentially, the State Department has two ways they transmit the information that we're aware of. One is by fax. They fax the information to the appropriate lookout unit. And the other option is cable or e-mail that they use to notify. In this particular case they notified INS and FBI.

SEN. DURBIN: And if I read your report correctly, they'd better crank up their e-mail, because it took 12 days to deliver it.

MR. FORD: Yes, actually that was the average -- for those cases that were late, the average was 12 days. Actually a couple of them was over a month.

SEN. DURBIN: Explain that form of e-mail to me that would take a month for delivery?

MR. FORD: I can't explain it. All I can tell you is that when we looked at the written record at INS and looked at the dates on it, the difference between the date that the visa had been revoked and the time that they had received it was on average 12 days.

SEN. DURBIN: Not exactly a confidence booster. And I went through Dulles coming into the United States several months ago, and the long lines waiting to go through, or I supposed our names against a watch list, I suppose that's what it's all about, and finally when I got to the -- my position in line, the lady said, "I'm sorry, Senator, to tell you the computers have been down all day, we're just making it up. I want to see if anybody's going to admit to being a terrorist." How often does that happen, that the computers break down so that the watch list can't be applied to the incoming people from --

MR. FORD: I really can't answer that, I would have to defer to the administration on that, I don't know how often it breaks down. I've heard that it has.

SEN. DURBIN: The thing that strikes me about this system is we are talking about legitimate travelers who are applying for visas and whether they will be suspected to be terrorists and somehow denied a visa or have a visa revoked, and my guess is that the likelihood of a terrorist applying for a visa is about as strong as the likelihood of a fugitive going to the police department to report a change of address. It strikes me that this may not be the best way to stop terrorists from coming in the United States, and we still spend a lot of money doing it, and clearly don't do it very efficiently. Thanks for your report.

Thanks, Mr. Chairman.

SEN. CHAMBLISS: Just before we leave that on Senator Durbin's subject of communicating by cable or e-mail or whatever, are our computers not able to talk to each other between agencies?

MR. FORD: It's my understanding that they should be able to. The basic lookout systems that are at least as far as the former INS and the State Department, they're supposed to be compatible and they should be able to easily transmit the information.

SEN. CHAMBLISS: But it's still taking this period of time. Twelve days I would assume would be an extreme situation, but it still takes that long to get information in the right hands?

MR. FORD: Well, our view is it shouldn't take that long. The cases where we said they weren't timely, those were the 47 that I referred to out of the 240, the rest of them all were received within 24 hours.

SEN. CHAMBLISS: Senator Sessions?

SEN. JEFF SESSIONS (R-AL): You know, something that I'd like to pursue that general subject a little bit. As a prosecutor for a number of years, the burden of proof is a significant matter. If a person, let's say in a country that is known to have terrorist connections, a person comes to the embassy and asks to be able to get a visa to come to the United States, that's what they would normally do, is it not? That's what a lot of them do?

MR. FORD: Yes, if they're required to have a visa, they have to go in and file it.

SEN. SESSIONS: Come in and ask for it. Well, if that -- let's assume at that point that the embassy approves it and did not have any negative information about the individual. Let's say later something comes out that one of the organizations that that person had been involved in had terrorist connections and it raised a question about that person's possible connection to terrorist activity. Now this person's already in the United States. So now we've got a -- burden of proof trial to get them out of the country, is that correct?

MR. FORD: That's my understanding, sir.

SEN. SESSIONS: Whereas in the beginning the embassy can reject them for virtually any reason they deem fit. Any reasonable suspicion they may have -- they have pretty much discretion, do they not?

MR. FORD: That's pretty much true, that's correct.

SEN. SESSIONS: And so to me that's -- that is a problem I've thought about it for some time and thought it should have been in the one of our terrorist bills, a PATRIOT Act, that deal with this situation because as a matter of law -- is this a statutory or a judicial decision that allows this person to have a presumption that they can stay in the country until it's overcome? Do you know if it's statute or court ruling or regulation?

MR. FORD: I've been informed that it's statute.

SEN. SESSIONS: I think, Mr. Chairman, we ought to look at that statute because, yes, you could say that, but before the world of terrorism we could say that perhaps and it would work, but a person comes to America as a non-citizen by permission. They're here at the acceptance of the United States and they can stay here, and we allow more people to come to our country than any country in the history of the world's ever allowed to come to their country to visit and become citizens. But it is by our acceptance, and it can be revoked I think, at any time, but we've got this statute that is making it difficult. And I'll just say this: it's not a matter of burden or proof beyond a reasonable doubt.

We've got millions of people coming to this country and want to come to this country. If there's one in 50 chances that this individual may be a terrorist, this country does not have to let them stay here. But we get into a court trial and I don't know exactly what the burden level is but the net result of all of this is it overwhelms the INS, the State Department people, the FBI and whoever's involved in handling the case, and they don't have time to do it. And the problem with immigration law in America, fundamentally in my view, is we have the semblance of a legal system, we have a good group of laws on the surface that appear to work but in reality they're not working.

We're getting overwhelmed and we're not able to act and the protections that are, for example for terrorist activities, even there's a marginally connection to terrorism, I think we ought to be able to ask that person to leave, and terminate their tenure in the United States. Let me ask you a little further about some of the questions that Senator Durbin was pursuing. I thought -- I'm glad he asked that about why it took 12 days. I think it just -- are you saying that it took 12 days before they really got it entered and pushed the button to send the e-mail, in effect?

MR. FORD: Our information is based on the lookout unit at the former INS. The information we compared that with the time that the revocation had been officially signed by the Department of State. And when we say it took 12 days, that means that the INS unit didn't -- had not received the actual revocation on average 12 days from the time it had been revoked. Now, what that means is that theoretically and individual could have entered the country during that 12 day time frame who had a visa revoked but INS wouldn't have known about it because they hadn't entered it into their lookout system yet.

SEN. SESSIONS: So when we -- a person that has a visa and then has it revoked oftentimes those people are not in the country, and they'll be coming into the country? Sometimes they're already here, would they not be?

MR. FORD: Well, we found cases where visas had been revoked. We then went to INS and through the -- a couple of their databases, we were able to determine that the individual had entered the country. In our report we cited 30 instances of this. We've subsequently done a little more analysis -- we think the number could be as high as 50.

SEN. SESSIONS: Out of 240 cases? Fifty out of 240 entered, where if the system had worked properly they would not have been allowed to come in?

MR. FORD: Well --

SEN. SESSIONS: Or some may already have come in?

MR. FORD: Some, some. They may have been able to stop some. Now, we did confirm in our analysis we did find that when INS did in fact receive the information on a timely basis, they did in fact stop a number of individuals from entering. We identified 14 cases of that in our report.

SEN. SESSIONS: Is my time -- sorry, Mr. Chairman, if my time is up?

SEN. CHAMBLISS: We're being somewhat liberal, but not as liberal as Senator Durbin maybe would like for us to be.


SEN. CHAMBLISS: We're going to come back around too, if you want.

SEN. SESSIONS: All right. Just on that subject then, the whole deal here is if the information is somewhere in the computer in the sky, it is of no value unless it's in the hand of the person at the border. And that is difficult to do, but not impossible, businesses do it every day. If you get in trouble with your credit card, it goes on there within minutes probably, that no more approval of your credit card, and we ought to be able to do that with regard to this. And I will yield back -- I don't have anything to yield back, but I'll stop.


SEN. CHAMBLISS: Mr. Ford, the fact of the matter is, on those 47 cases where the average was 12 days for communication to take place, it probably just meant that the computers were talking to each other but it sat in somebody's box for 11 days before they picked it up on the 12th day, is that a fair assessment?

MR. FORD: We -- to be honest about it, we don't know the cause, we just know that the -- when we talked to the lookout officials at INS they had indicated that they just hadn't received the notifications on a timely basis.

When we viewed all 240 cases and the 47 that we referred to were a match between the date that the revocation occurred and the time that the INS had put it in their system. The reason that it was put in late, we can't -- we don't know the reason for that.

SEN. CHAMBLISS: All right. You made a comment on page 6 of your report, "There will always be some cases in which the information arrives after the visa has been issued." And I'm assuming from that that you're referring to the fact that State continues to look at individuals -- even though they may issue a visa, State continues to look at those individuals and if they come up with something after the fact, they still are communicating that, is that -- am I interpreting that correctly?

MR. FORD: That's correct, that's correct.

SEN. CHAMBLISS: Right. With respect to the FBI's lack of concern about individuals whose visas were revoked because of terrorism concerns unless their names were on the tip off. How significant is that, the fact that they weren't on the tip off list but the FBI's been notified that an individual may have some suspect of terrorist activity in his background? That to me, again, that appears to be pretty significant. Am I wrong in that, or am I correct?

MR. FORD: This actually raises an interesting issue. At the time we began our assessment of the visas, and the 240 names that I referred to, those names were provided to us by the Department of State. And we had asked them to provide names of individuals that had had their visas revoked because of some information that would indicate there could be some connection to terrorism. The FBI, when they testified in June, had indicated that their primary source of concern is a particular lookout list that they use, called tip off.

And that they felt that the 240 individuals that we had in our survey, according to them only 47 of them were in the tip off system, which is a system that's specifically designed to identify suspected terrorists. So they felt that the other individuals apparently were not of as much concern because they hadn't been identified through the tip off system as a potential terrorist. So the issue here really gets into the manner in which the Department of State makes a determination to revoke the visa in the first place.

We know that they did not always put those names into the tip off system, and from the FBI's point of view, if they're not in there, they're not of concern, unless they got some other information from some other source.

SEN. CHAMBLISS: Senator Cornyn.

SEN. JOHN CORNYN (R-TX): Mr. Chairman, I don't have any more questions for Mr. Ford, I just want to say, though, the more I hear about our immigration system, the more concerned I get.

SEN. CHAMBLISS: Thanks for those comforting words.


Senator Durbin.

SEN. DURBIN: Mr. Ford, one last question. Of the 240 visa revocations, was that out of a universe of about 13 million visas that were issued in that period?

MR. FORD: Actually, we were unable to get the universe of revocations. We were told --

SEN. DURBIN: Universe of visas issue.

MR. FORD: The number issued, I believe the number I cited was roughly 10 million, I believe, in 2002. The revocations -- I have to backup for a minute. These revocations were based on the screening process that the department had in place for particular individuals that they had a concern might have terrorist connections. So the 240 is -- that's the reason that they identified that number.

SEN. DURBIN: Okay. Just so the record's clear, 10 million in 2002, but there was a period of 2001 that was also included. So it would have included, I assume, 2 or 3 million others?

MR. FORD: The revocations cover from September 11th to the end of calendar year 2002.

SEN. DURBIN: Okay, so just use roughly 10 or 12 million visas issued, 240 revoked because of terrorist concerns. And the other revocations? Were there other visa revocations not for that?

MR. FORD: Yeah, apparently they have other types of revocations due to immigration concerns, things like that.

SEN. DURBIN: Any idea of the number that were generally revoked?

MR. FORD: We asked for a number, we were unable to receive a number. I don't think the department has a database that specifically captures all this information in one place, they have to pull it out of their overall universe.

SEN. DURBIN: Mr. Chairman, if it's any encouragement to the committee, I think we've made fantastic strides at the FBI when it comes to computer capabilities. Director Muller's done a fabulous job in a short period of time, and I've every confidence that Director Ridge will too. But we are still a long way from that interoperability that we need for these computer efforts to complement one another. Thank you.

SEN. CHAMBLISS: Senator Sessions, anything further?

SEN. SESSIONS: Just to follow up. Of these 240 --

SEN. CHAMBLISS: Microphone.

SEN. SESSIONS: -- These 240, were all the revocations dealing with terrorism in that time period?

MR. FORD: That's our understanding, sir.

SEN. SESSIONS: And so of those, how many were -- in how many cases did the information promptly get to the border agents who would be in a position to make a stop if need be?

MR. FORD: Okay, 43 times it's our understanding that the INS did not receive a notification.

SEN. SESSIONS: So the State Department -- well, we don't know who dropped the bomb?

MR. FORD: Right. The other 47 times I mentioned, they were provided but not in a timely basis. So if you add the two together, that comes out to about 90 cases.

SEN. SESSIONS: Right. And then the State Department did not enter 64 more into their --

MR. FORD: No, the State Department, as part of their process they also notified their overseas embassies, because if the individual had not yet left, the embassies can try to check to find out if the individual's still there and notify them that their visas been revoked. They'd indicated to us that they routinely do that. Out of the 240, we had found that 64 of those were not in their lookout system, the State Department lookout system called CLASS.

SEN. SESSIONS: And was this difference in the State Department list and the tip off list, do you know if that was a failure of communication between State and FBI? Or a systematic evaluation of the cases that caused the FBI to not put them in tip off?

MR. FORD: I believe it has to do with the amount of information that is available to the department to make the decision.

They've indicated to us that they aired on the side of if there was any even limited information indicating there could be a potential problem, that they were going to revoke the visa. I should add that the FBI, we provided names --

SEN. SESSIONS: But the State Department has decided to revoke the visa for possible connections to terrorism, yet the FBI decides not to put them in their system?

MR. FORD: Well, actually the tip off system is a State Department system, the State Department makes that decision.

SEN. SESSIONS: Okay, I'm sorry.

Thank you, Mr. Chairman.

SEN. CHAMBLISS: Anything further from anyone?

Mr. Ford, thank you very much. Again, we appreciate your very diligent work, and we look forward to staying in touch and following up on this down the road. Thank you very much.

MR. FORD: Thank you, sir.

SEN. CHAMBLISS: We would ask your next panel, Ms. Janice Jacobs, Mr. Michael Dougherty, Mr. Jayson Ahern, to come forward, please.

We welcome Ms. Janice Jacobs, deputy assistant, visa services from the Department of State. Mr. Michael Dougherty, director of operations, Bureau of Immigrations and Customs Enforcement, Department of Homeland Security. And Mr. Jayson Ahern, assistant commissioner, Bureau of Customs and Border Protection, Department of Homeland Security. I would say to each of you we know and understand that your job is a very difficult one, been made more difficult since September 11.

We appreciate your contribution to the national security of the United States, we look forward to your statements. If you want to submit a written statement and give us a brief oral statement we would welcome that, and Ms. Jacobs, we'll start with you. Thank you for being here.

MS. JANICE L. JACOBS: Thank you, Mr. Chairman, members of the subcommittee. I appreciate the opportunity to address you on a subject that all of us in the executive and legislative branch agree is crucial, the swift and proper exchange of information among relevant agencies controlling the security of our borders. The Department of State's visa work abroad constitutes the forward base defense of the United States against terrorists and criminals who seek to enter the country to harm us.

We have no higher responsibility and we are determined to do this work in the best and most comprehensive manner possible. The General Accounting Office has issued a number of reports touching upon this subject, and the three that we have just heard GAO speak to are very familiar to us at State. We have found them to be thoughtful studies of a conflict subject and we have learned from them and put many of their recommendations into affect.

I have appended to my written statement a substantial list of actions taken since September 11th to strengthen the visa process along the lines suggested by GAO. Let me summarize them quickly here. We've doubled our database holdings on individuals who should not be issued visas, increased our training efforts to better apprise consular officers of counterterrorism concerns, set up special programs to more fully vet visa applicants of particular interest and move to increase staffing for visa positions abroad.

Our training efforts are focused on needed counterterrorism expertise and we have devoted much more time in senior training for ambassadors and deputy chiefs of mission to consular work and its responsibilities for senior managers. We have thoroughly reviewed consular procedures on visa work and begun a series of standard operating procedures, cables to the field, to codify the way in which we expect visa work to be consistently performed abroad.

While you never achieve perfection in this area, I'm confident that we have a much stronger visa process in place at our posts overseas than we had just one year ago, and the country is safer for it. While security is our primary focus, we also realize that the U.S. economy counts on the billions of dollars spent each year by international tourists, our universities reap the economic benefits of preeminence among destination countries for international students, our scientific establishment flourishes in a climate of open exchange across borders, and our entire society is accustomed to living in a free and open manner that counts upon an ease of movement across international borders.

We're determined to preserve these crucial benefits to the United States, even as we work to strengthen the visa process' security. The GAO speaks of cultural differences as being among the chief reasons for variation in the sharing of watch lists among the federal agencies. While I would not deny that cultures unique to a particular federal agency or service do condition its work, I think that what the GAO really means is that the mission of each federal agency is distinct, and the need for an ability to use certain information is different among them.

A consular officer abroad who has as much time as he or she needs to look over a visa applicant is in a much different situation than a port of entry inspector who has a few minutes to decide whether or not to admit an alien to the United States. Our consular officer can use information that is much less precise than the inspector would require, and a law enforcement officer in the United States will have somewhat different requirements than either of those two officials.

While it is obviously right to air on the side of caution when dealing with potentially lethal security risks, we cannot eliminate every element of risk from our operations, and saddling certain officials with information that experience tells us they cannot use effectively either because of legal or operational requirements, will not enhance our border security. These are questions without easy answers, but we believe that DHS is best placed to consider them and broker intelligent solutions based on the contributions of the interested agencies.

The GAO correctly identified a problem in our failure to rapidly and certainly apprise our immigration and law enforcement agencies of credential revocations that we had made based on intelligence and other source identifications of potential security threats. Our procedures were not sufficiently systematic and our notifications did not make use of the best our technology can deliver. We fixed this problem last year by creating a revocation code that is shared with the relevant agencies through the interagency border inspection system, or IBIS, when a visa is potentially revoked.

Though it should have been fully operational in August of 2002 when we designed the code, it was put into place of December of that year. And we have verified that each and every revocation for calendar year 2003 was properly coded and entered into CLASS and IBIS and was available in near real time to our law enforcement and border inspection colleagues. A potential revocation of a visa is a safety precaution that in security cases we undertake with a relatively low threshold of information to ensure that all relevant or potentially relevant facts about an alien are thoroughly explored before we admit that alien to the United States.

It's a signal to the consular officer abroad to re-adjudicate the case with the new information at hand. In many such instances, we find that the information does not pertain to the alien whose visa was revoked, a mistaken identity due to incomplete identifying data, or that the information can be explained in a way that clarifies the question at hand and eliminates the potential threat. In these cases, we reissue the visa and purge the alien's name from the lookout system.

The Department of State has advised the Department of Homeland Security that it is prepared to begin revoking visas effective immediately in cases of aliens who present a valid visa to an immigration inspector at a port of entry, but who DHS nevertheless stops for more in depth inspection because of a potential security concern. We will institute this practice on a routine basis once we have developed implementation procedures with DHS. Meanwhile, we can consider cases on an individual basis.

Making a revocation effective immediately when the alien is still undergoing port of entry inspection will allow DHS to use expedited exclusion procedures appropriate to the nature of the potential threat. A third situation arises if the alien has already been admitted to the United States.

In this context there is no legal precedent indicating that if a visa were revoked effective immediately, it would facilitate DHS' ability to remove the alien from the United States.

For example, it is unclear what removal charges could be filed against the alien. We intend to discuss this matter further with DHS as well as with the Department of Justice. I can assure the subcommittee that in all of these areas we worked hand in glove with our colleagues in law enforcement and homeland security. There are no cultural differences in each of our determination to make the United States safe from terrorists and criminals, both for Americans and our foreign guests.

We have made great strides in information sharing and cooperation towards this end, but we clearly have a ways to go. I'll be happy to answer any questions that you have, thank you.

SEN. CHAMBLISS: Thank you very much.

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