Hearing of the Senate Committee on Homeland Security and Govenrnmental Affairs

Statement

HEARING OF THE SENATE COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
SUBJECT: CONFRONTING THE TERRORIST THREAT TO THE HOMELAND SIX YEARS AFTER 9/11

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SEN. JOHN SUNUNU (D-NH): Thank you, Madame Chairman.

Director Mueller, there was an earlier question about the terrorist watch list, and I wanted to follow up on that a little bit to get a little bit more specific information about the recommendations of the IG and objectives for implementing their recommendations.

They made 18 suggestions. You indicated that you're already under way in implementing some of those suggestions. Could you speak to the two or three that you think are the most significant and describe the way that you think they will improve the integrity and usefulness of the watch lists?

MR. MUELLER: Well, the two that I mentioned before, the -- that are, I think, areas where we need to spend more effort, and that is in the area of quality assurance of the information. We have information coming through -- from a number of agencies that results in the information being and individuals then being put on the watch list.

What we have accomplished over the last several years, I would guess, is put into place a quality assurance program that scrubs that information. I mean, it was pointed out by the attorney general, and that was working as well as it should. What we're looking at is adding personnel, improving training and assuring that that scrub is more effective and efficient than it has been in the past.

The second area is in the redress, giving those who have are stopped and believed that as a result of their name being improperly placed on this watch list is to give those individuals an Office of Redress, where you can go and determine and ask the questions about whether or not your name is on it and get some redress. We established that office --

SEN. SUNUNU: How often does that happen? How often does that happen?

MR. MUELLER: Several hundreds of times, if I -- I'd have to get back to you, but I believe it's several hundred in the last figures I saw.

SEN. SUNUNU: Over a one-year period? Several hundred times?

MR. MUELLER: I believe it was over -- I think it may have been a one-year period. And what the IG focused on is it's good to set up -- that you set up an Office of Redress. What's happening is it takes too long to get that accomplished, and that's an area that again, with resources and personnel and training, we hope to do better at.

SEN. SUNUNU: Is there any particular area of law enforcement or a particular source of information where names are being provided for the watch list that really shouldn't be? In other words, any specific areas where the quality of the information provided has been especially poor?

MR. MUELLER: No. I can't pick out -- I can't pick any particular entity that contributes to the watch list and say this is more problematic. The problem comes in identifiers, and the problem comes is a name could be a(n) identifier, dates of birth can be identifiers or -- and you can have, with one individual, a number of names; you can have a number of dates of birth associated with that particular name; and sorting out the information that may come in from overseas or may come in domestically and identifying it with a particular person with particular identifiers is a substantial challenge.

I will tell you, I believe, the latest figure I saw: Approximately 90 percent of the names on the watch list are individuals outside the United States.

SEN. SUNUNU: Yeah, you mentioned increased staffing a couple of times. How many more people do you expect to add to this task? And what's your timeline for implementation of the majority of the 18 recommendations?

MR. MUELLER: I'd have to get back to you on that, sir.

SEN. SUNUNU: Both?

MR. MUELLER: Both.

SEN. SUNUNU: Okay, please do.

Secretary Chertoff, Senator Collins and others on this committee have been very concerned about the process of implementing the Real ID program. As you well know, my personal preference would be to have pursued aggressively the negotiated rulemaking, the collaborative rulemaking that was underway back in 2004, in 2005, prior to the passage of the Real ID mandate. At the moment, however, the proposal is to publish final rule in October, and October is also the deadline for states to file for an extension for implementation. That wouldn't seem to give the states a fair amount of time to really assess the scope, the costs and the changes that are necessary for complying to implementation. How are you going to address that administrative trainwreck?

SEC. CHERTOFF: Well, first of all, we did put a preliminary rule out and we did indicate that we'd be pretty -- well, I've said -- quite reasonable in terms of granting extensions. I mean, the current plan would be in theory to have next spring be the point at which the process of people signing up for Real ID licenses would begin. But we've indicated that we anticipate extending that to the end of 2009 upon a request and indication that states want to move forward and do that.

And I think frankly a lot of states have now begun the process of and have been seriously engaged with us in talking about what their plans are, including many of the major states, like California, Arizona, I think, Virginia. So I envision that this is not going to be a problem. I do think, you know, if a state does not want to participate obviously and they give us notice about that, that's not so much an implementation issue as it is a resolve issue.

SEN. SUNUNU: As I understand, one of the requirements of the preliminary rule is that the data fields that are collected through the ID process would have to be made available in a database to all other states. That naturally raises privacy concerns. And I'd like you to describe the way in which that -- at the federal level, you intend to protect the private information which, I think everyone would understand, needs to be protected in a very aggressive way.

SEC. CHERTOFF: Well, first, let me make clear that, I mean, we have tried to design this so as to maximize privacy. We have specifically avoided creating a new federal database that would accumulate information that's otherwise not there. And we have also worked very closely with the Association of Motor Vehicle Administrators. There's a model for doing this kind of sharing with respect to commercial drivers licenses, where there's cross-checking among states.

So we envision using that model. It's basically a distributed model in which states would be able to have access to other states' databases for purposes of checking, but we wouldn't create a new database.

I might add, one of the positive privacy benefits of the new rules are the requirement of background checks in DMVs. That's going to elevate the level of privacy. I can tell you historically as a prosecutor I remember cases where people abused their access to existing systems for criminal reasons or because they wanted -- they saw an attractive woman going down the highway and they wanted to get her phone number. So we're actually curing that problem by putting these background check requirements in place.

SEN. SUNUNU: I appreciate your candor. And I would underscore that the privacy issues are issues that need to be a very high priority. I believe that they are, with the work that you're doing, but it's always worth underscoring that we need to continue to (maintain ?) that priority status.

Second is dealing with the costs. You know, this is a -- it's a federal mandate. You mentioned a new database isn't being created; but there's a requirement that the information be shared, and that costs money and carries with it risks. So we've got to recognize the costs associated with the program and do everything possible to minimize those costs. There are some people that would like to use the fact that it is a mandate as an excuse to simply increase the size or the role or the responsibility at the federal level. I think that the focus should be on minimizing the costs, and I hope you take that to heart.

And the third is the concern of unintended consequences, and that's probably my biggest concern with a program like this, is not that it can't be implemented in a reasonable way, but that it will provide a foundation for others to use the program at a later date in ways in which it just wasn't intended. And it's very difficult to sit here today and to look two or three or four years or 10 years or 20 years down the road and try to come up with ways that the program might be misused or misapplied or expanded in an inappropriate way. But I think that's something we all need to be conscious of, most of all those who are working to structure the program today.

Thank you. Thank you, Madame Chairman.

SEC. CHERTOFF: I think that's reasonable. If I may just for one moment --

SEN. COLLINS: Yes.

SEC. CHERTOFF: Just to -- I didn't answer this part of the question. The actual deadline for requesting extensions is going to be February of '08. So there will be some time to assimilate --

SEN. SUNUNU: So it will not be an October deadline to request an extension --

SEC. CHERTOFF: Correct.

SEN. SUNUNU: -- but a February deadline.

SEC. CHERTOFF: Correct.

SEN. SUNUNU: Thank you.

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