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unworkable in practice. At its core, it is a one-dimensional simplistic response to a multi-dimensional

complex challenge: thwarting highly sophisticated and well-organized criminal enterprises intent on

smuggling people and contraband into the United States. There can be no margin of error when dealing with terrorists and weapons of mass destruction. The complex task of weeding out these threats to our homeland

security requires specialized excellence, not generalized mcdiocrity.

While it may appear at first glance that the Border Patrol is immunc from many of these problems, upon closer examination it becomes apparent that this is not the case at all. Even though its mission remains largely focused on the enforcement of immigration laws, the Border Patrol is negatively affected by the diffuse focus of the other agencies due to their symbiotic relationship. For example, the Border Patrol is largely dependent upon ICE to detain and remove the illegal alicns that it apprehends. When ICE cannot

meet those responsibilities for any reason, it negatively affects the ability of the Border Patrol to carry out

its mission. The current "catch and relcase” debacle that has resulted in an alarming surge in the number of illegal aliens from countries other than Mexico is dramatic proof of this. Likewise, the Border Patrol is largely dependent upon ICE to conduct investigations of smuggling rings and perform worksite and interior

enforcement operations. When ICE cannot fulfill those responsibilities, it encourages large numbers of

illegal aliens to enter the country. The current andual migration of millions of illegal aliens into the United States is due in no small measure to the fact that they know there is little chance they will be pursued once they get beyond the immediate border. A successful immigration enforcement strategy must address all aspects of the problem. Of course, thc single most important step that can be taken is the enactment of

legislation such as H.R. 98, the Ilegal Immigration Enforcement and Social Security Protection Act of 2005,

that would eliminate the employment magnet that draws most illegal aliens to our country

The fact that former Customs personnel now dominate the hierarchy of both of the new

enforcement bureaus adds to the problem, creating an imbalanced emphasis on enforcing customs laws.

While the enforcement of these laws is undoubtedly critical to the accomplishment of the Department's

mission, the enforcement of immigration laws is no less so. Although the reluctance to incorporate the

mistakes of the beleaguered I&NS into the new Departıncnt was completely understandable, “throwing the baby out with the bath water" was cqually inadvisable. At the time of the transition, the l&NS employed a substantial number of highly-experienced employees who possessed a wcalth of knowledge

about the enforcement of immigration laws. Unfortunately, this number is rapidly dwindling, as many

disillusioncd employees are transferring out of the agency or retiring as soon as they become eligible.

Since the management infrastructure of the former Customs Service took over CBP, it has

attempted to standardize every aspect of its management and operations to conform to the Customs way

of doing business without regard to whether it makes sense or not. This practice of trying to fit round

pegs into square holes is so widespread that it is routinely referred to by employees as the

"customization” of the agency. As Ralph Waldo Emerson sagely noted in 1841: "A foolish consistency

is the hobgoblin of little minds, adored by little statesmen and philosophers and divines."

Although the aforementioned problems pose daunting challenges to the accomplishment of the Department's vital mission, they arc by no means insurmountable. In fact, they could be corrected without any modification to the Homeland Security Act. The Administration could easily undo the damage created by the bifurcation of the enforcement bureaus through the exercise of the same

reorganization authority that it initially utilized.

The most important modification that needs to be made is realigning the Department's organizational enforcement structure to conform to the laws that are enforced rather than the current artificial geographic distinctions between the border and the interior. In other words, one agency should focus solcly on the enforcement of immigration laws, another on the enforcement of customs laws, and

another on the enforcement of agriculture laws. These agencies should retain different occupational

groups that perform distinct functions. For example, the immigration enforcement agency should have

a border patrul cor

an inspections component,

detention and removal componcnt, and a


criminal investigations component. All of these components should closely coordinate their activities and

be overseen by a single high-level administrator who is also responsible for coordinating enforcement

activities with his or her counterpart at thc customs and agriculture enforcement agencies.

Although this is similar in some respects to the organizational structure that existed before the

creation of the Department of Homeland Security, there are several key differences: All of these agencies would be within the same bureau, and would therefore be overseen by the same administrator, ensuring accountability and coordination. Moreover, it would not be a return to the old l&NS structure, as the

enforcement burcau would remain separate from the service bureau.

Mercly changing the organizational structure of the Department's cnforcement burcaus will not solve all of the current problems. A cultural shift at the highest levels of the organization must also accompany thesc structural modifications if meaningful changes are expected. If the Department wants to attract and retain the best and the brightest employees, it must treat and pay them fairly, and give them a voice in the workplace decisions that affect them. The new personnel system that is about to be implemented does none of these things, and will thus deter good people from applying or working for the Department. Without an adequate number of motivated and experienced employees, it will be impossible to accomplish the Department's mission.

In summary, the National Border Patrol Council strongly recommends modifications to the

current organizational structure that encourage specialization by eliminating dual cnforcement responsibilities and foster cooperation and coordination by demolishing the artificial barriers that hamper thcsc efforts. This must be accompanied by meaningful changes in the way employees are treated and rewarded. These reforms are essential to enable the Department to effectively accomplish its vital anti-terrorism and other law enforcement missions.

Mr. HOSTETTLER. And as an aside, I want to thank you for agreeing to come and testify for this Subcommittee on such short notice. Just to inform the panel and the record, we had a witness that had to back out at the last minute because of certain personal concerns, and you, Agent Bonner, were willing to step forward. Thank you for doing that.

Mr. BONNER. I am happy to do so.
Mr. HOSTETTLER. Ms. Kephart.


COMMISSION STAFF COUNSEL Ms. KEPHART. Thank you, Chairman Hostettler, and Ranking Member Jackson Lee and Mr. King, for holding this hearing and giving me the opportunity today to discuss with you DHS border enforcement functions in light of my 9/11 Commission work on terrorist travel.

We are all here today because September 11th taught us that all elements of our complicated border apparatus must be brought to bear if we truly seek to stop foreign terrorists from entering and staying in the U.S.

From my vantage point of spending 15 months devoted to figuring out how the 9/11 terrorists conducted their travel operation into the U.S. so easily, it is clear to me that we must put old thinking aside when it comes to immigration issues if our ultimate goal is truly effective border security. We must seek a long-term plan that incorporates all we know about terrorist travel. We must start from the fact that foreign terrorists carefully plan their attempts to enter and stay in the U.S. based on a relatively sophisticated understanding of our border security.

Terrorists will use any infiltration tactic if it will work, from hiding in a ship's hull, or car trunk, to fraudulently seeking legitimate U.S. visas or passports. These terrorists do not just represent al Qaeda; Hamas, and Hezbollah and lesser-known terrorist organization operatives also engage in all varieties of immigration fraud.

Once in the United States, terrorists seek legal status. They resist removal through sham marriages, claims of political asylum, and applications for naturalization. In one case a terrorist even managed to stay in the U.S. when his spouse won the visa lottery. They seek U.S. and State-issued identifications to establish themselves in communities and travel more easily. And wherever a vulnerability exists, from visa issuances to admission standards at our ports-of-entry, to our physical borders, to our immigration benefits adjudication system, a terrorist will take advantage of it.

Terrorists move throughout our border system in a continuum, taking advantage of every legal and illegal means possible. However, our current border system is less reflective of that continuum now than it was prior to 9/11. Prior to 9/11, the seven elements of our immigration system were split amongst three departments and three agencies. Today those same elements are split amongst three departments and six agencies. To add to the confusion, immigration enforcement and Customs were merged together and then split in a manner that made little sense in practical application. And while it made some sense to merge custom and immigration functions at ports-of-entry, that merger does not necessarily transfer to the interior.

Why did all this happen? After 9/11, lawmakers and the Administration hurried with the solution, applying pre-9/11 solutions, where economic security was a priority, to a post-9/11 world, where national security is the priority. We also failed to deal with the underlying problems that have traditionally plagued our immigration system, and those failures still exist today. They include, first, a lack of commitment to enforcing immigration law. Not only do the complexities and gray areas of immigration law make it difficult to enforce, but also enforcing the law is nearly impossible where strong special interests with diametrically opposed viewpoints prevent forward momentum. We must rise above special interests and provide Americans with the security that they deserve.

Second, critical intelligence on terrorist travel indicators still is not being declassified and distributed to our frontline officers 342 years after 9/11. One specific indicator present on five passports used by three 9/11 hijackers remains unknown today to immigration personnel. To make matters worse, very few in the ranks of immigration have security clearances necessary to acquire critical classified information now being collected on terrorist travel.

Third, and perhaps most importantly, we lack an overarching policy where rules, guidelines and resources are allocated in a manner that encourages legal immigration to this country and discourages illegal immigration. We have also failed to give our border system the clout it deserves and desperately needs to be effective. Expertise in policymaking, with access to tough decisionmakers has also been lacking.

In today's world, every element of the border system must be viewed primarily for its enforcement function and application of the rule of law. Only then will we begin to infuse the integrity into the system to deter terrorists in illegal entry and encourage legal entry.

In conclusion, we all know that terrorists are creative, and they are adaptable, yet we have the ability to counter them by being adaptable in our thinking ourselves and provide our frontline officers with a job that they are all eager to do and capable of doing. My written testimony lays out a series of recommendations which I believe can help us go further in taking border security out of rhetoric and into reality.

Mr. HOSTETTLER. Thank you, Ms. Kephart.
[The prepared statement of Ms. Kephart follows:)

Thank you.



Good afternoon and thank you for the opportunity to discuss terrorist travel and immigration enforcement with you today. My testimony is based on my work as a counsel on the 9/11 Commission “border security team,” as an author of the 9/11 staff report, 9/11 and Terrorist Travel, and a 380 page report on the current state of terrorist activity in the United States I conducted as a consultant. At the Commission, I was responsible for the investigation and analysis of the INS and current DHS border functions as pertaining to counterterrorism, including the 9/11 hijackers' entry and acquisition of identifications in the United States. My current work includes a study of terrorist travel tactics in the United States, specifically focusing on the abuse of our immigration system by 118 indicted and convicted terrorists.

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