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Please note that the views I present here today are my own, and do not necessarily reflect those of the 9/11 Commission. I want to thank both Chairman Hostettler and Ranking Member Jackson Lee for holding this important hearing. I also wish to applaud Congress for passing the National Intelligence Reform Act of 2004. That Act contained many valuable terrorist travel provisions born of the 9/ 11 Commission's recommendations. I look forward to seeing the national terrorist travel strategy and the implementation of the new passport rules for all visitors come to fruition as required by the Act. It is the hope of many of us who are working on this important topic that this Subcommittee and Congress as a whole will continue to exercise their oversight authority on the important issue of terrorist travel and overall border security, ensuring that our Government continues to implement the lessons learned as a result of the tragic events of September 11, 2001.
From the outset, let me make it clear that I, like many, consider the benefits and wealth of human potential that immigration brings to this country to be one of our greatest strengths as a nation. However, I also believe that we owe it to all Americans to maintain the integrity of our borders. To do so, we must scrutinize effectively those who seek to come here. September 11 has taught us that secure borders are a matter of national security.
We will not have secure borders until we enforce the laws already in place; until we properly train, equip and support our first line of defense; and until we are prepared to share more information with frontline personnel. Nor will we have full immigration reform until we understand the extent of our vulnerabilities and devise a long term plan to fix the border system, so that policy priorities can be set and executed with political credibility; clarify and streamline our complex immigration laws where necessary; and allocate and account for funds and other resources appropriately; and restructure our border system to reflect the importance and mission of our immigration apparatus.
Today I plan to discuss with you whether the current structure of our border security system accomplishes its most important responsibility: to provide security for U.S. citizens and legal residents of the United States from foreign visitors who seek to do us harm. To understand why structure matters, we must first gain an understanding of how foreign terrorists are exploiting the vulnerabilities in our border system, why these vulnerabilities exist, and then why the structure of the border system matters. Based upon these findings and analysis, recommendations follow.
U.S. BORDER SYSTEM VULNERABILITIES Despite good initiatives by the administration, such as the deployment of U.S. VISIT to international airports, weaknesses in the U.S. border system still exist. Terrorists will continue to successfully enter the United States because we still lack adequate technologies; integrated information systems that house biometric travel histories of visitors and immigrants; and specialized training in terrorist travel tactics. As noted in 9/11 and Terrorist Travel, front line immigration officers are not adequately trained to detect fraudulent travel stamps in passports, terrorist indicators in passports, or behavioral cues. Indeed, as a staff member for the 9/11 Commission I had access to more information about the techniques that terrorists use to gain unlawful entry in the United States than frontline officers.
Without repeating the content and findings of 9/11 and Terrorist Travel, terrorists will use any infiltration tactic if it works, from hiding in a ship's hull or car trunk, to seeking legitimate visas, to entering into a sham marriage that will gain them access to either a visa waiver, or, better yet, a U.S. passport. These terrorists do not just represent Al Qaeda; Hamas and Hizballah and lesser-known terrorist organization operatives also engage in all varieties of immigration fraud.
Once in the United States, they seek legal status and resist removal through sham marriages, claims of political asylum, and applications for naturalization. They seek U.S. and state issued identifications to establish themselves in the community and travel more easily. They take advantage of amnesty and temporary worker programs, and in one case even managed to stay in the United States when a spouse won the visa lottery.
Terrorists move through our border system in a continuum. However, our current border system is even less reflective of that continuum than it was prior to 9/11.
To understand where we are today and why, we need to look back at our border system prior to 9/11 and the creation of DHS. We must understand why our border system failed prior to 9/11, and why it is still struggling today. We must first take a look at the variety of operational border missions that will likely always make up the U.S. immigration system.
THE U.S. IMMIGRATION SYSTEM PRIOR TO THE CREATION OF DHS Even prior to 9/11, our immigration system was failing to provide the basic requirement of good government-value. The result was a constant chorus that our immigration system was “broken” and “laughable”. Value was measured in the level of security we perceived the immigration system to provide. However, security was defined as one of economic, not national, security. The debate raged over the economic value of illegal workers to our system while it was widely recognized the Citizenship USA program put in place to facilitate legal immigration was an embarrassing failure. There was also increasing concern that illegal populations worsened drug and crime problems. The inability of the government as a whole to address these issues resulted in a freezing of resources to address the problem. A mere 2,000 interior enforcement agents had the impossible job of dealing with an estimated 6 million illegal aliens. Our immigration system was failing to provide even economic security.
No role in counterterrorism prior to 9/11. I know from personal experience as a counsel to the Senate Judiciary Committee in the late 1990s that before 9/11 INS employees considered their agency to have no role in counterterrorism. When posed the question, I was simply told, “That's the FBI's job.” I responded: “Well then who is to keep terrorists from entering the country?" I was given no answer.
Only after public hearings on foreign terrorist activity in the United States on the five year anniversary of the first World Trade Center bombing and insisting that the INS take part in those hearings, did the INS set up a National Security Unit. That unit never had more than a half dozen full time employees. They worked in a virtual information vacuum, seeking information from the FBI and field where they could. The INS' intelligence unit was considered of so little value that the INS Commissioner had decided years prior that daily briefings were a waste of time. This failure was just one manifestation of a woefully inadequate border system.
Overly complex immigration laws. Another way in which our immigration system was failing to provide value was that immigration rules were immensely complex, hard to understand, and even harder to apply. Inspectors at ports of entry, border patrol agents, immigration agents, immigration benefits adjudicators, and immigration attorneys and judges were all stymied by rules that were fuzzy and time-consuming to implement. Why? For decades, immigration rules were constantly built upon the latest crisis. Wholesale review of the efficiency, fairness, and functionality of these laws never took place. Concern over reprisal often led to more lax enforcement—both for those inspecting visitors coming into the country and in our immigration courts. All of this contributed to poor morale and a burgeoning immigration problem: those seeking to come here and stay knew there were plenty of legal and illegal loopholes to facilitate remaining in the United States indefinitely. Those working in immigration were demoralized. The problem worsened.
Lack of effective policies. We also failed to be holistic and proactive in our immigration policies. Where policies existed, they were divergent: at the ports of entry and in immigration benefits, it was all about customer service. However, interior enforcement was about rounding up illegal aliens, sanctioning employers not playing by the rules, and issuing removal orders to criminal aliens. The conflict between enforcement and customer service once more resulted in a constant push me--pull you policy-making. No real forward momentum was created. There was another problem as well: a lack of efficiency in supervision at ports of entry, where duplicative hierarchies existed for both customs and immigration inspectors. Many sought a combined force.
Poor use of funding. The immigration system also failed to provide value in its use of appropriated funds. Congress became so frustrated with ad hoc technologies and no real movement towards completion of new immigration benefits technologies that in the late 1990s Congress chastised the INS in its conference reports, denying needed resources until the INS could show accountability for monies previously provided. During this time, the student tracking and entry-exit systems were started and, for different reasons, never came to fruition. Any money that was appropriated went disproportionately to the Border Patrol, but the problems of illegal immigration seemed to ebb and flow depending upon where resources were physically allocated on the border. Meanwhile, the State Department's Consular Affairs was suffering near annual cutbacks. Immigration agent resources remained level despite a growing illegal population, and the immigration inspector workforce grew slightly, but not in proportion to the burgeoning number of foreign visitors.
Throughout the 1990s, hearings were held constantly on Capitol Hill. Topics included the porous southwest border, the slow processing of naturalization applications, and the inadequacy of immigration law enforcement. The debate raged: maybe the structure isn't right. For years, two sets of solutions were proposed: (1) break
up INS into its enforcement functions and benefits functions and/or (2) merge Customs and INS together.
In testimony before the 9/11 Commission in January 2003, former INS Commissioner Jim Ziglar told us in lengthy testimony about the severe challenges he faced when he was asked by newly elected President Bush to restructure the INS and reduce immigration benefits backlogs. In early August 2001, Commissioner Ziglar took office. On September 10, 2001, he had a business plan for restructuring the INS ready for review, in part based on the work of the prior INS Commissioner, Doris Meissner. In early 2002, as Commissioner Ziglar still attempted to move forward with restructuring, especially in light of the events of 9/11 (as he told me during interviews), he undertook to determine what it would take for the INS to actually fulfill its mandate. He provided the following testimony:
We concluded that the INS annual budget would have to grow from $6.2 billion in FY 2002 to approximately $46 billion by FY 2010 . . . assuming Congress and the administration actually desired that the mandates be fulfilled. It was also assumed immigration laws would remain static. . . . It was concluded that in order to carry out the enforcement mandates of the Congress and administration, past and present, the INS would need approximately the following:
• 27,960 Investigators/Special Agents (compared to the 2,000 employed at
the time of the study), a 14-fold increase • 31,700 Border Patrol Agents (compared to 10,000) • 21,500 Immigration Inspectors (compared to 5,000) • 15,600 Deportation Officers (compared 650) • 1,440 Attorneys (compared to 770) • 110,000 detention beds (compared to 21,107) • and a vast increase in office space, support staff, vehicles, computer
equipment, etc. These numbers speak for themselves.
THE IMMIGRATION SYSTEM MOVES TO DHS Prior to 9/11 and the creation of DHS, the seven elements of our immigration system were buried in bureaucracy at two main locations: the INS at DOJ and Consular Affairs at the State Department. The U.S. Coast Guard supported the INS at sea. After 9/11, the dismantlement of the INS became inevitable—the years of discussion about its break-up finally seemed to be grounded in something real, as if the wholesale splitting up of functions into completely separate bureaus would have increased our national security prior to 9/11. Of course it would not have, as the INS was not considered to have a role in national security prior to 9/11.
Today, we have severe fragmentation, with those seven elements split between three departments (DOJ, State, and DHS) and within DHS, in four different agencies: CBP, ICE, USCIS, and the Coast Guard. There is no policy shop under the Secretary to pull disjointed elements together. If Secretary Chertoff creates such a policy shop, that alone will significantly upgrade policy cohesion throughout DHS border functions.
The current DHS structure has combined pre 9/11 solutions to a post 9/11 world. Border functions now at DHS represent acceptance of pre 9/11 views: that enforcement and customer service missions require wholesale bifurcation, and government efficiency requires the combined forces of the INS and Customs Service.
These presumptions are inaccurate; they fail to reflect current national security realities.
Mission Elements of the U.S. Immigration System
Prior to DHS
Inspections at 400 plus air, sea and land INS at DOJ, with ports of entry
Customs at Treasury Patrol of U.S physical land borders INS at DOJ
Patrol of U.S. maritime borders
Coast Guard at DOD
CBP under BTS
First, in a post 9/11 world, all immigration functions have at their foundation national security. The top priority of the immigration system therefore must be enforcement of the law and assuring adequate but efficient security vetting of applicants throughout all facets of our immigration system. Until we accept that all elements of our immigration system have a significant role to play in the war on terror, our immigration system will not optimize the value—that of security-it must provide to Americans.
Second, while a good argument remains that ports of entry have both an immigration and customs mission, it does not necessarily translate that interior enforcement of immigration and customs laws achieves maximum effectiveness by a joining of those law enforcement functions. While there is limited and justified overlap of some immigration and customs enforcement operations, especially where aliens are committing crimes over which customs personnel would traditionally have jurisdiction (and vice versa). However, there is nothing preventing joint task forces for such operations from being equally efficient. Moreover, traditional immigration investigations against employers violating immigration law, immigration benefits fraud, SEVIS and, eventually, U.S. VISIT violators, need to remain a priority. They should find equal weight with traditional Customs investigations, and not be subsumed.
Perhaps most importantly, what seems to be lacking in our analyses of providing a border system with value is new thinking. We must consider that immigration activities—whether enforcing the law or providing a benefit at or within our borders-all require overarching cohesive policies, resources and interconnected information resources to make it work. However, that does not mean that we should wait to shore up our immigration system while we tackle the complex and difficult policy, budgetary and legal questions that have traditionally burdened our immigration system. We can, and should, begin redressing some of its severe deficiencies in interior enforcement now. I believe we can do so without negatively impacting long range planning of our immigration system.
STRENGTHENING IMMIGRATION ENFORCEMENT To rebuild public confidence, our nation must create a strong and intelligent border screening system that is effective both at keeping terrorists out of the United States and in facilitating legitimate travel and immigration services. The system will never provide a perfect result. Some terrorists will get through, despite our best national effort. In that case, the public needs to know that border authorities investigate the reasons for the infiltration and make necessary changes to further strengthen the system.
In pursuit of this objective, the rule of law matters. The process of intercepting terrorists and detecting them through their violations of immigration law is properly a domain of national security and demands highly focused law enforcement efforts
by trained, dedicated professionals. Terrorists represent a lethal threat. But a border and immigration system with consistent and systematic enforcement is much harder for terrorists to penetrate. A United States whose borders and immigration system are governed by the rule of law, moreover, sends a message of justice that is itself a deterrent to terrorists.
To promote public confidence in the rule of law, it is critical to reform our immigration system. We cannot afford the vulnerability of the borders, the lack of internal regulation, the gaps in our enforcement system, and the continued corrosion of the rule of law caused by the presence of 10 million illegal aliens. The underlying condition of our immigration system is that there is a dearth of predictable and consistent enforcement.
We must insist upon people entering lawfully and abiding by the terms of their admission as a fundamental basis of our immigration system, and desist from viewing immigration violations as mere technicalities. On the other hand, demands for "catch-up” enforcement of immigration law, while appealing to some, threaten the availability of resources to develop and sustain a significant, dedicated, and targeted counterterrorism effort at the borders. Quite simply, there will not be a sound and secure border security system or an optimal deterrent policy against terrorists until we have an immigration policy and system that operates more realistically, efficiently, and according to the rule of law.
First, reform should include simplifying the law and standardizing its application in the field. Our 9/11 investigation showed that mistakes by inspectors at the ports of entry resulted in part from the inordinate complexity of immigration laws. While the standard of decision-making at the ports of entry, in enforcement, and in immigration benefits proceedings can be enhanced by national standard operating procedures and specialization, Congress and the President also hold responsibility for simplifying the laws.
Second, the U.S. government should adopt a counterterrorism immigration enforcement strategy that brings all relevant federal, state and local entities to the table. All of our law enforcement agencies have a role to play in denying terrorists the ability to enter and remain in the United States. These efforts need to be coordinated, robust and matched to the expertise of each agency. To be successful, such a strategy should include comprehensive training in the nuances of immigration law and the resources to implement the law equitably and fully. It also requires intelligence (and training) on terrorist travel methods and watchlisting that is available to our border officials in a timely manner.
Specifically, DHS should invest in the ability of state and local law enforcement to detect terrorists among immigrant communities by providing training, real-time access to federal expertise, the necessary security clearances, and other resources as needed. Currently, only two states, Alabama and Florida, have or are receiving training from federal immigration authorities on immigration enforcement relevant to their jurisdictions. I welcome the news that more states and communities are recognizing the value they can provide to this effort. They can help find terrorists and criminals in the United States when they examine travel documents in the normal course of their duties. State and local law enforcement should be encouraged to use the DHS Law Enforcement Support Center (LESC) to access databases and experts on travel documents.
Third, DHS and the Justice Department should propose adoption of tougher antifraud laws in the United States, where document and other forms of illicit travel facilitation are linked to terrorists and punishments and sentences do not fit the crimes.
Fourth, special consideration must also be given to the consular officers and immigration inspectors, agents, and benefits adjudicators who have the opportunities to detect and intercept terrorists as discussed above. Up to now, they have not been considered critical assets in the war against terrorism even though they are responsible for determining who enters and who remains in the United States. They need to be given an enhanced role in any counterterrorism immigration strategy. This includes providing appropriate security clearances for certain personnel at ports of entry and elsewhere as needed.
Fifth, all these reforms must be adopted under an overarching policy that encourages legal immigration and discourages illegal immigration. We are capable of maximizing security and efficiency throughout the immigration system while minimizing privacy intrusions. As we build efficient security at the perimeter of our borders by facilitating entry of those we deem legitimate and denying entry to those we do not, pressure on interior enforcement will eventually become more manageable.