[Senate Hearing 112-513] [From the U.S. Government Publishing Office] S. Hrg. 112-513 OVERSIGHT OF THE U.S. DEPARTMENT OF HOMELAND SECURITY ======================================================================= HEARING before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED TWELFTH CONGRESS FIRST SESSION __________ OCTOBER 19, 2011 __________ Serial No. J-112-48 __________ Printed for the use of the Committee on the Judiciary ---------- U.S. GOVERNMENT PRINTING OFFICE 75-641 PDF WASHINGTON : 2012 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah CHUCK SCHUMER, New York JON KYL, Arizona DICK DURBIN, Illinois JEFF SESSIONS, Alabama SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas AL FRANKEN, Minnesota MICHAEL S. LEE, Utah CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma RICHARD BLUMENTHAL, Connecticut Bruce A. Cohen, Chief Counsel and Staff Director Kolan Davis, Republican Chief Counsel and Staff Director C O N T E N T S ---------- STATEMENTS OF COMMITTEE MEMBERS Page Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 3 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1 prepared statement and letter................................ 103 WITNESSES Napolitano, Hon. Janet, Secretary, U.S. Department of Homeland Security, Washington, DC....................................... 5 QUESTIONS AND ANSWERS Responses of Janet Napolitano to questions submitted by Senators Leahy, Whitehouse, Grassley, Kyl, Sessions..................... 36 SUBMISSIONS FOR THE RECORD Napolitano, Hon. Janet, Secretary, U.S. Department of Homeland Security, statement............................................ 107 OVERSIGHT OF THE U.S. DEPARTMENT OF HOMELAND SECURITY ---------- WEDNESDAY, OCTOBER 19, 2011 U.S. Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 10:07 a.m., in room SD-226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. Present: Senators Leahy, Feinstein, Schumer, Durbin, Whitehouse, Klobuchar, Coons, Grassley, Sessions, and Hatch. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Chairman Leahy. Good morning, everybody. Thank you all for being here. It has been another good week for our Nation and our Federal law enforcement efforts. Last Tuesday, we learned of the foiled assassination attempt in the United States of the Saudi Ambassador to the United States. This case involved the Department of Justice, the FBI, and the DEA in a coordinated effort to stop an act of terrorism on U.S. soil, and I want to praise the agencies involved in the investigation. I was also pleased to see that, in this instance, Members of Congress did not engage in armchair quarterbacking over whether the suspect should be transferred to military custody or sent to Guantanamo. I remember nearly 2 years ago, when a terrorist attempted to blow up an airplane on Christmas Day, some politicians used the occasion to criticize the Attorney General after the suspect was arrested. They made all kinds of claims, none of which came true. One I recall was people saying, well, why was he given Miranda rights? Well, most of who have been involved in law enforcement know if somebody is going to confess, they are going to confess whether you give them Miranda rights or not. We obtained a lot of useful intelligence from the suspect. People complained about trying the Christmas day suspect in Federal court. He was tried in Federal court and showed the rest of the world that our courts work. The suspect pled guilty. He now faces a potential life sentence. The prosecution can feel very happy that they followed it exactly the way they did and did not listen to the Monday morning quarterbacks. More than 400 terrorism cases prosecuted by the Department of Justice since September 11, 2001. Over the last 2\1/2\ years, the President and his national security team have done a tremendous job protecting America and taking the fight to our enemies. Earlier this year, the President ordered a successful strike against Osama bin Laden. He has stayed focused on destroying al Qaeda from his first days in office. I commend the President and the CIA on that success. Last month, the administration was also able to locate Anwar al Awlaki, a terrorist operative in Yemen who was recruiting Americans to attack within the United States, in one case with horrible and tragic effects at Fort Hood. Now, do we remain vigilant? Of course. But I think we ought to acknowledge that there has been a great deal of progress made. In the aftermath of 9/11, the country spent trillions of dollars trying to shore up our security. Some of the efforts, especially those undertaken in the early years, were wasteful and ineffective. The Bush-Cheney administration insisted on shifting our focus from bin Laden to Saddam Hussein in Iraq, even though Saddam Hussein and Iraq had absolutely nothing to do with 9/11. That cost thousands of American lives and added hundreds of billions, possibly over $1 trillion, to our national debt. We continue to take money from programs in the United States--including education, medical research, infrastructure, and housing--and we dump it into Iraq. I hope that the Nation and the Congress are now ready for a new discussion about the next chapter in our efforts. Secretary Napolitano, you and I first met back in the days when you were a prosecutor. I have a great deal of admiration for you and the way you have run your office, and I thank you for joining us this today. I look forward to hearing from you what you believe have been the successes of the past few years and what our priorities should be moving forward. I hope that your Department can strengthen its effort to provide help not only to Vermonters but others around the country who have been so devastated by recent natural disasters. That has been an important and necessary role for the Federal Government that is much needed. I do appreciate all of the Department's efforts to help Vermonters begin rebuilding after the devastating floods we experienced this spring and this summer. I was born in Vermont. I have never seen anything so disastrous in my life. It reminds me of the stories my grandparents and parents would tell me about a disastrous flood from 100 years ago. These emergencies are difficult enough for the Americans living through them, especially as winter approaches. We should not complicate the situation with the added uncertainty that comes from ideological opposition to this fundamental Federal role and that results in Congressional inaction on desperately needed funding for disaster relief. The American people waiting for disaster assistance should not be victimized again. Americans should help other Americans as we have for generations. As somebody said to me, we seem to have an unlimited amount of money to build roads and bridges and houses in Iraq and Afghanistan, and then they are blownup. Build them in America for Americans by Americans, and Americans will protect them and use them. We in our State bore the full brunt of Irene. Roads, bridges, homes, farms, and businesses were all destroyed when gentle rivers became torrents of destruction. I want to compliment Craig Fugate, the Administrator for FEMA, and his staff. He came up to Vermont, where my wife and I met with him. I have gone around and visited a number of the FEMA offices in Vermont, and I thank the FEMA staff for doing such good work. Border security is another area in which we have progress to report. I think it is finally time to renew a discussion of comprehensive immigration reform, a discussion that went off track after the Senate passed a bipartisan bill in 2006. Madam Secretary, I look forward to your help on immigration reform. Our work is not done. Change has never been quick or simple. The kind of change brought about by comprehensive immigration reform depends on persistence and determination. I realize it is a different world than when my grandparents, my maternal grandparents, emigrated from Italy to the United States, to Vermont. But we have to realize we are a Nation of immigrants, and we have got to have a better immigration policy. I look forward to the day when, to paraphrase President Obama, barricades begin to fall and bigotry begins to fade. Then, not only laws, but hearts and minds will change. New doors of opportunity will swing open for immigrants who want only to live the American dream. Our Nation will be stronger, better, and more productive on that day. So with that, Senator Grassley, I yield to you. STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA Senator Grassley. Oversight is a critical function of our Government, a constitutional responsibility of Congress. It is often an overlooked function for members. It is not always glamorous. It is hard work, and it can be frustrating because of bureaucratic stonewalling. In 2008, I was glad to hear the President-elect talk about the most transparent Government ever. Unfortunately, this administration has been far from transparent. Today's hearing will give us an opportunity to ask questions that have gone unanswered. I am frustrated by the less than forthcoming answers we receive from the administration when conducting our constitutional duty of oversight. We need a little bit more straight talk. This Senator for one feels as though our concerns are often dismissed. An example: Just last week, 19 Senators received a response to a letter that we sent to the President about immigration policies. The response did not come from 1600 Pennsylvania Avenue. It did not even come from the Secretary before us. It came from a bureaucrat in the Office of Legislative Affairs. The response was non-responsive. It is as if our concerns are somehow trivial or insignificant. We wrote to the President about prosecuting discretion directives being issued by the Department of Homeland Security. In June, Assistant Secretary Morton released a memo directing and encouraging Immigration and Customs Enforcement officers to exercise prosecuting discretion. Officers were asked to consider the alien's length of presence in the United States; the circumstances of the alien's arrival in the United States, particularly if the alien came as a young child; their criminal history, age, service in the military, and pursuit of education in the United States. On August 18th, the Secretary announced an initiative to establish a working group to sort through an untold number of cases currently pending before the immigration and Federal courts to determine if they can be ``administratively closed.'' Combined, these directives are alarming, especially to those of us who firmly believe in the rule of law. We have many unanswered questions from this administration about their prosecuting discretion initiatives. We want answers. We want transparency and accountability. Constitutionally, we are a part of the process. The American people are shareholders, and they deserve to be consulted when major immigration policy is being formulated. Americans also want the truth. I am frustrated about the administration's deceptive marketing tactics in claiming that they have deported more undocumented people than ever before. The Secretary continues to use statistics that are inflated and inconsistent with the official data produced by the Office of Immigration Statistics. That office has been around awhile--since 1883, to be exact--so I would like to know why the Secretary cherrypicks what numbers she wants to use and refuses to use the statistics provided by the Office of Immigration Reform. And I will point now to all of you to look at the poster. The Department has a credibility problem. The Washington Post uncovered the story last December. The headline says it all: ``Unusual methods helped ICE break deportation records.'' The administration, including the Secretary, uses figures prepared by ICE. ICE uses a different methodology, counting deportations from previous years and operating a repatriation program longer to pad the numbers. The Office of Immigration Statistics, on the other hand, only counts removals that actually took place during that year. Let me provide another example. The Secretary gave a speech at American University on October 5th saying that in 2010 ICE removed over 195,000 convicted criminals. However, the official statistics of the Office of Immigration Statistics is 168,500, so that is a difference of 27,000. The point is we do not know what to believe. The Department is using different methodologies from 1 year to the next. Homeland Security personnel, according to the Washington Post, are encouraging immigration officials to do what they can to increase the overall removal numbers. There is funny business going on, and the Department's credibility is at stake. But do not just take it from this Senator. Even the President acknowledged that the numbers are dubious. During a recent online discussion aimed at Hispanic voters, President Obama said that, ``The statistics are a little deceptive.'' So I would like to hear from the Secretary why they continue to use these deceptive statistics and why the Department chooses to use ICE figures which are embellished and inconsistent rather than using the data from the Office of Immigration Statistics. I would also like assurances again that this administration is not using creative ways to keep as many undocumented people in this country. We have talked a lot about deferred action and parole, but there are many other ideas in the memo. For example, one of the most egregious options laid out in that memo was a proposal to lessen the extreme hardship standard. The amnesty memo states, ``To increase the number of individuals applying for waivers and improve their chances of receiving them, CIS could issue guidance or a regulation specifying a lower evidentiary standard for extreme hardship.'' If the standard is lessened, untold numbers of undocumented individuals would be able to bypass the 3-year and the 10-year bars that are clearly laid out in the Immigration and Nationality Act. I expect to hear from the Secretary if such a plan is being discussed by anyone within the Department. If it is, I will warn her that such an action would be another blatant attempt to circumvent Congress and the laws that we put in place. On a final matter related to immigration, I am very concerned by the administration's inconsistent position when it comes to suing States for enacting various immigration laws. The administration has sued Arizona and Alabama, and now news reports claim that the attorneys are considering challenges in other States, including Utah, Georgia, Indiana, and South Carolina. But what about cities and States that ignore Federal law? Will the administration turn a blind eye to them? Finally, I have asked Secretary Napolitano in the past about the involvement of the Immigration and Customs Enforcement officers being detailed to Phoenix to the ATF's Operation Fast and Furious. I also asked the Secretary at a hearing back in June about whether she had had any communication about Fast and Furious with her former chief of staff, Dennis Burke, who was the U.S. Attorney in Arizona responsible for Fast and Furious. I did not get any response back. Mr. Burke is to be commended to some extent for being the only person to resign and take responsibility for a failed operation. Of course, I do not believe that he should feel obligated to be the only fall guy. If there are other higher- ranking officials in the Justice Department who should also be held accountable, they should also step up to take responsibility. Thank you, Mr. Chairman. Chairman Leahy. Well, thank you. Now with all those greetings, Secretary Napolitano, please feel free to start. We have Senators Coons, Durbin, Schumer, Feinstein, myself, Grassley, and Hatch here. Others will be joining us. STATEMENT OF HON. JANET NAPOLITANO, SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, DC Secretary Napolitano. Well, thank you, Mr. Chairman and Ranking Member Grassley, members of the Committee, for the opportunity to testify today. I would like to update you on the progress we are making, particularly with respect to our efforts to prevent terrorism and to enhance security, to secure and manage our borders and to enforce and administer our Nation's immigration laws. In these and other areas, we have continued to grow and mature as a Department by strengthening our existing capabilities, building new ones, enhancing our partnerships across all levels of Government and with the private sector, and streamlining our operations and increasing efficiency. Nonetheless, we know the terrorist threat facing our country has evolved significantly over the last 10 years, and it continues to evolve. Perhaps most crucially, we face a threat environment where violent extremism and terrorism are not defined or contained by international borders. So today we must address threats that are homegrown as well as those that originate abroad. Over the past 2\1/2\ years, DHS has worked to build a new architecture to better defend against this evolving terrorist threat. For one part, we are working directly with law enforcement and community-based organizations to counter violent extremism at its source, using many of the same techniques and strategies that have historically proven successful in combating violence in American communities. We are focused on getting resources and information out of Washington, D.C., and into the hands of State and local law enforcement, to provide them with the tools they need to combat threats in their communities. We continue to participate in Joint Terrorism Task Forces, provide support for State and local fusion centers, and work with our partners at the Department of Justice on the Nationwide Suspicious Activity Reporting Initiative. We are encouraging the public to play a role in our shared security through the nationwide expansion of the ``If You See Something, Say Something'' campaign. And we have replaced the color-coded alert system with the new National Terrorism Advisory System, the NTAS, to provide timely information about credible terrorist threats and recommended security measures. These steps provide a strong foundation that DHS and our partners can use to protect communities, better understand risk, engage and partner with the international community, and protect the privacy rights, civil rights, and civil liberties of all Americans. Over the past 2\1/2\ years, this administration also has dedicated unprecedented resources to securing our borders, and we have made the enforcement of our immigration laws smarter and more effective, focusing our finite resources on removing those individuals who fit our highest priorities. These include criminal aliens as well as repeat and egregious immigration law violators, recent border crossers, and immigration court fugitives. The efforts are achieving unprecedented results. Overall, in fiscal year 2011, ICE removed nearly 397,000 individuals, the largest number in the agency's history. Ninety percent of those removals fell within one of our priority categories, and 55 percent, or more than 216,000 of the people removed, were convicted criminal aliens--an 89-percent increase in the removal of criminals over fiscal year 2008. This includes more than 87,000 individuals convicted of homicide, sexual offenses, dangerous drugs, or driving under the influence. Of those we removed without a criminal conviction, more than two-thirds in fiscal year 2011 fell into our other priority categories: recent border crossers, repeat immigration law violators, and fugitives. Now, as part of the effort to continue to focus the immigration system's resources on high-priority cases, ICE, in partnership with DOJ, has implemented policies to ensure that those enforcing immigration laws make appropriate use of the discretion they already have in deciding the types of individuals prioritized for removal from the country. This policy will help immigration judges, the Board of Immigration Appeals, and the Federal courts to focus on adjudicating high- priority removal cases more swiftly and in greater numbers, enhancing ICE's ability to remove convicted criminals. This policy will also promote border security as it sharpens ICE's focus on recent border entrants and allows for the expansion of ICE operations along the southwest border. We have also stepped up our efforts against employers who knowingly and repeatedly hire illegal labor and take action to identify visa overstays, enhance refugee screening, and combat human trafficking. Smart and effective enforcement is just one part of the overall puzzle. This administration is also committed to making sure we have a southern border that is safe, secure, and open for business. We are more than 2 years into our Southwest Border Initiative, and based on previous benchmarks set by Congress, it is clear that the additional manpower, technology, and resources we have added with bipartisan support are working. Illegal immigration attempts, as measured by Border Patrol apprehensions, have decreased 36 percent along the southwest border over the past 2 years and are less than one-third of what they were at their peak. We have matched decreases in apprehensions with increases in seizures of cash, drugs, and weapons. Violent crime in U.S. border communities has remained flat or fallen in the past decade. CBP is developing a comprehensive index that will more holistically represent what is happening at the border and allow us to better measure our progress there. I look forward to updating this Committee as those new measures are developed. Finally, USCIS continues to improve our ability to provide immigration benefits and services to those eligible in a timely and efficient manner by streamlining and modernizing its operations. We know more is required to fully address our Nation's immigration challenges. President Obama is firm in his commitment to advancing immigration reform, and I personally look forward to working with this Committee and with the Congress to achieve this goal and to continue to set appropriate benchmarks for our success in the future. So I would like to thank this Committee for its support of our mission to keep the United States safe, and I want to thank the men and women who are working day and night to protect and defend our country, often at great personal risk. I am happy to take your questions, Mr. Chairman. [The prepared statement of Secretary Napolitano appears as a submission for the record.] Chairman Leahy. Well, thank you, Madam Secretary. To begin with, you have been attacked for issuing the new prosecutorial discretion policy. All prosecutors, as you know, having been one yourself, have to make at least some decisions based upon resources, whether you are a State's attorney in Vermont or Secretary of Homeland Security or the Attorney General. So I think we have to be realistic about the situation we face. It would be impossible to deport all of the immigrants in the United States who are undocumented. Nobody is asking the Government to redirect billions of dollars to try to remove 10 million individuals, even if that would be possible. That is not an amnesty policy. Recipients of deferred action do not receive lawful permanent residence. Not all people are going to be granted authorization to work. Meanwhile, as far as I can tell, DHS is still deporting a record number of immigrants each year--in fact, over a million in this administration since President Obama took office. So let me ask you this: How does this prosecutorial discretion policy strengthen law enforcement and border security? Is it a smart use of our Federal resources? Is it a good use of our Federal resources? Secretary Napolitano. Well, Mr. Chairman, you have hit the nail on the head. Any prosecution office has finite resources, and you have to set priorities. What has been a bit surprising is the reaction that somehow the prosecution memo that Director Morton issued this summer was something new. In fact, if you go back historically in the immigration area, there is U.S. Supreme Court case law; there are memos from directors in both Republican and Democratic administrations; and it makes common sense. So when we look at the fact that there are 10 million or so illegal immigrants probably in the country and the Congress gives us the resources to remove approximately 400,000 per year, the question is who are we going to prioritize, and we are very clear: We want to prioritize those who are convicted criminals; we want to prioritize those who are egregious immigration and repeat violators; we want to prioritize those who are security threats, those who have existing warrants. And what you see happening now, particularly over the last year, fiscal year 2011, is that while the number, around 400,000, remains about the same, the composition of those within that number who are being removed is now really shifting to reflect the priorities we have set. Chairman Leahy. Let me talk about another issue: what comes across our borders. Right after 9/11, a large number of Department of Agriculture people who checked for invasive pests, and plants coming across our borders were shifted to look for terrorists. We now find that invasive wood-boring pests, such as the emerald ash borer beetle, cost homeowners an estimated $830 million a year in lost property values; local governments, almost $2 billion; woodlands that are destroyed; as well as that these pests do to our environment. These pests cost taxpayers billions of dollars a year, plus irreparable damage that cannot be quantified. Too many pests have slipped undetected into the country since U.S. Customs and Border Protection took over these inspections from the Department of Agriculture. They threaten the quality of our Nation's food supply in some agricultural areas, specially items like specifically Vermont maple syrup. Some Senators in both parties would like to see the inspections return to the USDA. Others say we ought to elevate the agricultural mission within Customs and Border Protection. What do you recommend that we do? What kind of assurances can you give us that the inspections we need at our airports, our border crossings, our seaports, even rail, are going to be done the way it should be? Secretary Napolitano. Yes, thank you, Mr. Chairman. We have within CBP I want to say somewhere between 2,300 and 2,800 agriculture specialists located at the ports of entry to search exactly for what you are suggesting, different kinds of pests, invasive species, things that could wipe out an entire crop or actually an industry very quickly should they take hold in the United States. We also work with our international partners at the last points of departure for the United States in this regard. I do not have an opinion to express now on whether the Agriculture Department should take over this role, but I will say---- Chairman Leahy. I understand, but you would accept the fact that it is an important issue? Secretary Napolitano. Oh, absolutely. Chairman Leahy. And I would hope you would look at this very carefully. I just want to make sure that we have the best people possible do it, because the danger to this country is significant. Secretary Napolitano. I would agree, and the people who do it are specially trained in this regard. Chairman Leahy. Let me talk about H-2A agriculture visas. There is considerable unhappiness about how the H-2A program is administered. We in Vermont--and I am sure it is the same in some of the other States represented here--have dairy farmers and other agricultural businesses, such as apple growers, who have experienced very difficult challenges within the Department of Labor and USCIS, and I am afraid we are maintaining something that is fundamentally unfair. I am not alone in my frustration with the situation that dairy farmers and others face. A seasonal visa for a dairy farmer does not do much good. Senator Lee, who is a member of this Committee, recently introduced a bill to provide dairy farmers access to the H-2A program. Senator Enzi and I previously introduced a similar bill. Now, if I had my druthers, it would be to tackle immigration in a broad manner, which I tried to do with President Bush, and I praised him in the effort to do it. For now, would you support us in a bipartisan effort to provide some basic fairness in the H-2A program for dairy farmers and sheepherders? Secretary Napolitano. With the caveat that we always want to see the actual language, the answer is yes. We have had this dairy issue for a couple of years now, and our hands are tied until the law is changed. Chairman Leahy. And I realize I have gone over my time, but I want to look also at another thing, the question of material support for terrorism. We have seen a case of a refugee who sold flowers, or gave a bowl of rice to a member of a terrorist organization, who is then barred. If somebody gives a donation of $1, that is one thing. Somebody who gives hundreds of dollars is another. Somebody who sells flowers to a terrorist is not providing support to a terrorist, but actually taking money out of that terrorist's pocket. Can we take a look at the interpretation of what is ``material'' support so that we are dealing with truly material contributions and not immaterial support? Secretary Napolitano. And it is also something that obviously involves the Department of Justice, but the answer is yes. For example, I think we have recently been providing some clarification with respect to those who provided medical care. So the answer is yes, we do need to look at some of these on a case-by-case basis. Chairman Leahy. With that, Chuck? Senator Grassley. Thank you. Thank you, Madam Secretary, for coming. I am going to start out by asking you for some memos that you just referred to that previous administrations have exercised prosecutorial discretion both in Republican and Democratic administrations. I would like to have copies of those, if I could, please. Secretary Napolitano. Absolutely, Senator, and these memos were actually referred to by date and author in the PD memo that Director Morton issued. But we will give you copies of all of them. Senator Grassley. Thank you. Exactly 2 months ago, you announced the prosecutorial discretion initiative focusing on high-priority cases. While you say that the working group is still finalizing the implementation details, this Committee needs some answers about what has been discussed and decided up to this point. We hear estimates of 300,000 cases could be reviewed. Some say it is upward to 1 million. Could you give us an estimate of how many individuals or cases could be reviewed, at least as roughly as you can? Secretary Napolitano. Yes, Senator. Just referring to the master docket of what is pending in immigration courts now, it is roughly 300,000. Senator Grassley. OK. Will those with final orders of removal be eligible for relief through this process? Secretary Napolitano. Absent unusual circumstances, no. This is for cases that are pending are clogging up the docket and preventing us from getting to the higher-priority cases. Senator Grassley. According to information from your Department, some individuals who are given relief will obtain work authorizations so people with no right to be in the country will be allowed to work here. Is that correct? Secretary Napolitano. Well, Senator, since around 1986, there has been a process where those who are technically unlawfully in the country may apply for work authorization. This goes to CIS. It is not an ICE or a CBP function. And those cases are reviewed by CIS on a case-by-case basis. So there is no change in that process--it goes back to the mid-1980s and is contemplated now. Senator Grassley. But, yes, some of them could have an opportunity to work here even though they are here illegally? Secretary Napolitano. Well, that happens now, Senator. Senator Grassley. OK. My staff sent over a request for answers about this new process. I would like to have those questions answered in a timely manner, please. Would you do that? Secretary Napolitano. I would be happy to. Senator Grassley. OK. Will you commit to keeping the Committee informed as the process unfolds, including providing real-time data on how many people are considered and how many are provided relief, biographical information and the number of work authorizations approved? Secretary Napolitano. We will be happy to keep the Committee staff apprised. I do not know what you mean by ``real time.'' With 300,000 cases, obviously you can not apprise a Committee each time a decision is made. But I think we can reach an agreement as to how to keep the Committee appropriately briefed. Senator Grassley. Periodic updates. Thank you. When Congress created your Department, there was some discussion about taking away the Department of State's consular function and giving it to Homeland Security. As a compromise, Congress allowed State to keep it, but gave Homeland Security final authority over visa policies. Congress also dictated that all visa applicants between the ages of 14 and 79 be interviewed in person with only a few extremely limited exceptions. This was because 17 of the 19 September 11th hijackers got visas without an interview and despite putting nonsensical answers on their visa applications. I am concerned about attempts to do away with the required in-person interview. I am concerned about the State Department possibly reinterpreting the law in order to exempt some more people from the requirement. Frankly, this is a September 10th mentality that risks our national security. Do you think all visa applicants should be interviewed by consular officers abroad? And if you do, will you push back on an attempt by the Department of State to roll back the in- person interview requirement? Secretary Napolitano. Senator, I need to look into that. You are giving me some new information. I will say this, however: We have our own people in many embassies as visa security program officers who do separate security checks. I think we need to not only support that but look at that function because that is a check against many relevant databases, and we need to do it at least on a risk-based basis. Senator Grassley. As you heard in my statement, I have got serious concerns about the proposal outlined in a memo released last summer that suggested the Department lessen the definition of ``extreme hardship.'' I brought this issue up when the memo was released and find it to be an egregious option that we need to discuss. The authors of the memo suggest that some people could apply and receive a waiver to stay in the United States and not be subject to the congressionally mandated 3- and 10- year bars if this definition was watered down. Changing the standard would be a huge policy change resulting in relief for millions of people who are here unlawfully. Are you aware of any discussion to change or lessen the definition of ``extreme hardship'' ? Secretary Napolitano. Senator, I think what you are putting your finger on is the fact that the existing immigration law is very difficult. It is something that we would really urge the Congress to take a look at holistically. We are ready to work with the Congress on that. My discussions have focused primarily on making sure that as we exercise our enforcement functions, we are really prioritizing in a common sense way consistent with what I have been informing this Committee since I first became Secretary. Senator Grassley. Have you received any memo on that proposal? Secretary Napolitano. Not that I am aware of, no. Senator Grassley. Well, if such a memo would arrive at your desk, would you consider it dead on arrival at your desk? Secretary Napolitano. Well, again, I am not going to speculate on a memo I have not seen, but I understand your concerns. Senator Grassley. Well, you understand--and I think you expressed it--that Congress needs to deal with that. And if Congress has to deal with it, it would seem to me you can not deal with it through administrative action. That is my point of view. I mentioned former U.S. Attorney Dennis Burke in my opening statement. This is an issue that I asked you in June to respond to in writing. Have you had any communications with Mr. Burke about Operation Fast and Furious? Secretary Napolitano. No. Senator Grassley. So you then obviously did not talk to him anything about Agent Terry's death, and then I will go on to-- -- Secretary Napolitano. Well, that is a different question. Senator Grassley. Then answer that. Secretary Napolitano. If I might---- Senator Grassley. You have had some communication---- Secretary Napolitano. No, not about Fast and Furious. When Agent Terry was killed on December 14, I went to Arizona a few days thereafter to meet with the FBI agents and the Assistant U.S. Attorneys who were actually going to look for the shooters. At that time nobody had done the forensics on the guns, and Fast and Furious was not mentioned. But I wanted to be sure that those responsible for his death were brought to justice and that every DOJ resource was being brought to bear on that topic. So I did have conversations in, it would have been, December of 2010 about the murder of Agent Terry. But at that point in time there, nobody knew about Fast and Furious. Senator Grassley. OK. Secretary Napolitano. So that is a different question. Senator Grassley. Then the last point here is: Since I first asked you about Fast and Furious in March, have you done things beyond what you just told me looking into it in any way? If you have not, it is OK. If you have, I would like to know about it. Secretary Napolitano. I did ask ICE to look into whether there had been any involvement there. I think we responded last night to you with respect to that, but that is all. We are waiting for the Inspector General. Senator Grassley. I will ask you one last question, and then my time will probably be about what the Chairman used. As you heard in my opening statement, I have concerns that this administration chooses to sue some States, like Arizona and Alabama, and chooses to turn a blind eye to places that are like, I will say, Cook County, Illinois, as an example, that refuse to cooperate with Feds on immigration matters. Have you had any discussion with the Department of Justice about suing cities or States that harbor undocumented immigrants? And what do you think about Cook County's ordinance? Have you had any contact with them about their ordinance? Secretary Napolitano. I have not had any discussions at this point in time, and I have not had any communications myself with Cook County. But I will say that one of the key tools we are using to enforce the priorities we have set with respect to removals is the installation of Secure Communities throughout the country in jails and prisons. The huge majority of jurisdictions have no problem with this. We have been improving the system as we have been doing the installation. We intend and expect to be completed by the year 2013. Senator Grassley. Thank you, Madam Secretary. Thank you, Mr. Chairman. Chairman Leahy. Thank you, and having removed 397,000 last year alone, you are removing a lot. Senator Feinstein. Senator Feinstein. Thank you very much, Mr. Chairman. Madam Secretary, welcome. You run 22 departments with 240,000 employees, certainly one of the biggest departments in the U.S. Government. I just want to say I think you are doing a very good job. I think the times are tough. I think leadership is very hard in this time, and a lot of things are controversial, but I just want you to know that you have my support. And I also want you to know that I want to do everything we can to prevent guns from going to Mexico because I know where they end up, and that is not good for anyone. So having said that, I want to concentrate on two programs which I have kind of been at Immigration for for the 18 years I have been here, certainly following 9/11. One of them is student visa fraud, and the other is the Visa Waiver Program. Let me begin with student visa fraud. I got into this many, many years ago where there was a storefront school next to our San Diego office, and, voila, it turned out to be a phony university, essentially attracting people from abroad illegally to come to the United States on a student visa, and then they just disappeared. Well, that was a long time ago, but it is still going on, and as late as, I believe, January of this year, there was Tri- Valley University, which is in California, which was apparently authorized for 30 students and ended up with some 1,500. And it was really a scam because they collected up to 5 percent of the tuition--well, each foreign national collected up to 5 percent of the tuition of any new student, and there was profit sharing and really visa fraud. Today I understand that there are more than 10,500 schools approved by DHS to accept non-immigrant students and exchange visitors to study at their institutions through the Student Exchange Visitor Program. I am concerned about the number that have turned out not to be operating for student purposes. My understanding is that an internal risk analysis performed by ICE determined that 417 schools have showed evidence of being a high-risk school for fraud. So here is the question: What type of enforcement measures have been brought to bear and initiated by the Department to get at these high-risk schools and shut them down if they are not doing the right thing? Secretary Napolitano. Senator, I share your concern. We have increased the number of individuals who are looking at the whole SEVIS program and these institutions. Tri-Valley was obviously one of the cases we brought to light. There have been others. We are working with the Department of Justice on prosecuting the perpetrators and really tightening up on the whole student visa program in that regard. I would be happy to send you a longer answer as to all of the efforts there, but I think for the purpose of the hearing, yes, this is a concern, and we have been putting additional resources to it. Senator Feinstein. I can tell you, more than a decade ago, when I looked into it, universities that took these students were not even verifying that they, in fact, were in the university. We had an agreement then through the University Association that that would change. I suspect now that schools have so many financial problems that there may be an inclination, you know, to accept more foreign students who really do not turn up but pay a large amount of money. Secretary Napolitano. Pay tuition, right. Senator Feinstein. So I think it is a very good thing to be on your guard, and I appreciate the fact that you are. My other interest was in the Visa Waiver Program. I believed--and this is over 18 years now--that a number of illegal entries came in through the Visa Waiver Program. If you come from a visa waiver country, you come in without a visa. You are supposed to leave in 6 months. We have had no exit system. We could not tell who was leaving and who was staying. So a new database system, SEVIS-II, that is supposed to-- well, wait a minute. That is the---- Secretary Napolitano. That is the students. Senator Feinstein. Right, right. So the elec ESTA, the Electronic Travel System, in a recent report by GAO identified several measures that you should take. I sent a letter to you dated August 15th requesting information on your efforts to implement the GAO's recommendations. I am sorry to say I have not received a response. So here is the question: What are the Department's efforts to implement the GAO recommendations to improve the Visa Waiver Program, in other words, so that we know that someone that comes here leaves when they are supposed to leave? It is supposed to be a visitor program, not a permanent program. Secretary Napolitano. That is right, and I apologize that you do not have a response. You will get one forthwith. But I will say that, first of all--and this is very common in the GAO. I am not being critical, just descriptive. A lot of times there is a lag between the data they have and what is currently happening, and so as we have improved our systems and as we have been able to merge or develop search engines that can quickly search different databases on a real-time basis, the ESTA numbers have gone up. The checks have gone up, and we have developed a very robust biographic system to measure overstays and to prioritize overstays in terms of who we are going to direct ICE to go out and find. Senator Feinstein. How many visa entrants are there a year, visa waiver entrants? Secretary Napolitano. I do not have that number. I will get it for you. It is a lot. Senator Feinstein. Could you get me that? Could you show me the trend line? Secretary Napolitano. Yes. Senator Feinstein. And could you show me the estimates that you have pursuant to this data program of people not returning to their home country? Secretary Napolitano. That is right. Yes. Senator Feinstein. I would appreciate that. Thank you. Thanks, Mr. Chairman. Senator Hatch. Senator Hatch. Well, thank you, Madam Chairperson. Welcome. We are happy to have you here. Secretary Napolitano. Thank you, Senator. Senator Hatch. We appreciate the tough job that you have to do. It is a difficult job. Recently, Immigration and Customs Enforcement, ICE, officials conducted an audit on the Weber County, Utah, jail that concluded that the facility did not meet some of the established ICE detention standards. Now, as a result, the Weber County jail can no longer house approximately 30 to 60 ICE detainees. Now, they claimed that ICE mandates their detainees do not undergo strip searches, do not have to pay the $10 co-pays for medical treatment, cannot have their mail read like other inmates, and deserve their own barbershop. The sheriff said that is disparate treatment. He said that gets around immediately. The other inmates resent it, and that gets staff hurt. That gets inmates hurt. Now, what are the options, in your opinion, and hopefully speaking for the Department, for local jails that are unable to comply with some of the more costly or onerous detention standards? And do you agree that there is a role for some of these noncompliant jails in assisting ICE officials in identifying and removing criminal aliens? Secretary Napolitano. Well, Senator, I would have to look at this Weber jail situation. We use a lot of jails around the country who have no problem complying with the standards. Senator Hatch. Would you look at it? Secretary Napolitano. But we will look into that one. Senator Hatch. Please look at it, because it just seems ridiculous to me. Secretary Napolitano. It does not sound completely accurate, if I might say so. I am pretty familiar with the detention standards. So we will take a look. Senator Hatch. Well, if you would, I would appreciate it because, as far as I know, they are humane and conduct good jails in that area. Now, one of the recommendations from the 9/11 Commission report is to create a Visa Exit Program for foreign visitors to the United States. Departure information is vital for determining whether foreign visitors are leaving the U.S., maintaining their visa status, and evaluating future visa eligibility for these visitors. Now, not to mention the ability to track departures goes to the heart of keeping our Nation safe. That is why I reintroduced the Strengthening Our Commitment to Legal Immigration and America's Security Act, which would require the Secretary of Homeland Security to create a mandatory exit procedure for foreign visitors to the United States. You have approached this to a degree here today, but without such exit procedures, the task of determining whether aliens have overstayed their visas in the United States it seems to me would be nearly impossible. Now, it is my understanding that since 2004 the Department of Homeland Security has been testing various exit programs and departure controls at U.S. airports for visa holders leaving the United States. And in July 2009, another pilot program was conducted by DHS. Yet we have not seen any implementation of exit procedures for our country's visitors, nor have we seen any final conclusions made by the Department. Or at least I have not seen them. I would prefer not to create an exit procedure legislatively, but it seems like that may be the only way we are going to get the results that we need on this important matter. And if technology is available to implement an exit procedure, why hasn't DHS acted on this? It has been over 7 years since the first pilot program was completed, and I guess my question is: How many more years do we have to wait until we get this going? Or am I right on these things? Secretary Napolitano. Well, I think we have to, Senator, distinguish between biometric exit and a very robust biographic exit system that combines a lot of different databases now that we did not have even 2 or 3 years ago. These are new developments. We have piloted biometric exit. It is very expensive, and in these fiscal times I do not see how, unless Congress is willing to give us billions of dollars, we can actually install it over the next few years. But I think we can basically get to the same point using the biographic exit systems we are beginning to deploy. And we have also been able to go back--and we started this project last spring--and look at the backlog of visa overstays. One of the things we have discovered using our enhanced biographic system is about half of those people actually have left the country. And now we have run the other half against our priorities--criminal convictions, recent border crossers, fugitives and the like--and that way we can prioritize ICE operations on the overstays to meet our other priorities. Senator Hatch. OK. Thank you. I have been getting a lot of complaints lately about the checks as you pass through the monitoring stations where people do not want to go through the x-ray station, so they line up on the one side where just the open-door station is. And some of your people force them to go over to go through the x-ray station. And then if they say, ``Well, I do not want to do that. I would rather go through the other one,'' they say, ``Well, you can do it, but then you are going to have to be patted down.'' Now, my question that they want me to ask is: Why do you need a patdown if they go through that smaller station? Is that just a way of forcing them to go through the other? Or can't they have their choice? And give me the reason why a person cannot have his or her choice if they are just afraid of getting a shot of radiation or whatever it is that they are afraid of or just plain do not like to go through that particular station? Secretary Napolitano. Well, I can say the answer in one word, and that is Abdulmutallab and others like him who have been trying to bring explosives onto planes or other material that does not have a metal component, and, therefore, the magnetometer will not pick it up. So that is why you see the patdown procedure has been adjusted to reflect, that plain reality. We actually have been looking nationwide at how we can move people through--we handled about 1.5 to 1.8 million passengers a day in the U.S. air system and things that we can do to make it easier for passengers to process through the system, and we continue to look for ways. But the reason for that basic choice and where we are is the actual threat that we are dealing with. Senator Hatch. Why can't a person, if they line up to go through the smaller station because that is what they prefer to do, why can't they just do that? Why do they have to be forced to go through the other? Secretary Napolitano. Well, I do not know about that. I mean, they should usually have a choice. And most people opt for the AIT. Senator Hatch. No, they do not. I am telling you. Secretary Napolitano. I will speak with Director Pistole about this. Senator Hatch. It seems to me, you know, there is--people ought to be able to use either one. Now, admittedly, if somebody looks suspicious, you have got to have that right to have them go through the more serious station, I guess. But the vast majority of people are not suspicious at all. I have just had a lot of complaints from that, and that is something---- Secretary Napolitano. Well, I will be happy, Senator, to look both into the Weber County jail situation and some of those complaints and see what can be done. Senator Hatch. OK. It is ``Weeber,'' by the way. We have got to get that right. Secretary Napolitano. I apologize for that. [Laughter.] Senator Hatch. If you would look into that, because that seems ridiculous to have to provide facilities that they are not providing for regular people, and yet they are a humane jail. Secretary Napolitano. Got it. Senator Hatch. Thank you. Chairman Leahy. I might note, I would like to work with the senior Senator from Utah on the TSA issue he raises. He is absolutely right. You know, many pilots will not go through the x-ray. I realize that some former officials of the Department of Homeland Security have lobbied to get the U.S. Government to spend hundreds of millions of dollars on the x-ray machines. But I have seen exactly the same situation the Senator from Utah has. I have known people, member of my own family, who are cancer survivors and will not go through the x-rays, and then have to wait to clear security. Children have to go through x- rays and patdowns. There is almost an arrogant disregard at TSA for real Americans who have to put up with this screening. Senator Hatch. Could I add something? Chairman Leahy. I share the frustration of the Senator from Utah, and we will work together on this. Senator Hatch. If I could just add, my wife loves to go through the larger station. I do not know how else to refer to it. I do not. But I have been forced to--I line up to go through that, and I have been forced twice, at least twice. And I always comply, but I am just saying--and I do not ever raise a fuss about it, nor would it. But it seems to me if you do not--maybe I look like a terrorist. I do not know. But I do not think so. I am really very kind and loving, you know. [Laughter.] Chairman Leahy. I do provide a lot of amusement for people who are taking cell phone pictures of me getting the patdown. Secretary Napolitano. Well, I do have a great crew working at TSA. But I appreciate these concerns. Chairman Leahy. At the very top of TSA there is a disconnect with reality. Senator Hatch. Well, let me just add that I agree with that. I think that your employees have been great. And I will always comply with whatever they say because---- Chairman Leahy. As do I. Senator Hatch.--it is certainly right, and I know you will, too. But there is a ridiculous nature to it, too, sometimes, and they have always been very gracious and nice to everybody I have---- Secretary Napolitano. Well, I think we can continue to look into it and to improve, and we will work with you. We will look into your complaints. I understand that and why people get concerned and frustrated when they travel. But I also think we have the safest aviation system in the world, and there is a reason for that. But, Senator, I will give you that. You look kind and loving---- Senator Schumer. He usually is. Secretary Napolitano.--and we should be able to handle this, and also look at some of the things that are coming in. Chairman Leahy. I understand the people that work there are some of the nicest people I have ever met. I just worry about some of the directions they are getting from on top, which are so unrelated to reality it is frustrating. Senator Hatch. Sometimes. Chairman Leahy. Senator Grassley reminded us of the risks our Federal law enforcement officials face. Since the beginning of 2009, 12 Department of Homeland Security law enforcement officers have lost their lives in the line of duty. I am going to put in the record their names, because that is one thing that unites every single one of us on this panel, the grief we feel when they have lost their lives. It is also a reminder that people in your Department put their lives on the line every single day for all of us, including the TSA folks. I just want to note that. Secretary Napolitano. Thank you, Mr. Chairman. Chairman Leahy. Senator Schumer. Senator Schumer. Thank you, Mr. Chairman. Well, let me pay you a compliment to start off, Secretary Napolitano. I think your administration is doing--I want to pay a compliment on immigration enforcement because your administration is the first really to take a rational approach to this issue, and the statistics speak for themselves. You are using scarce enforcement resources to deport many more dangerous criminals than prior administrations, and you are focused very carefully on making us safer rather than causing disruptions to the economy or families to placate critics who will look for reasons to fault you regardless of how you enforce the law. It makes a great deal of sense when you have scarce resources to focus on those who are dangerous criminals, not willy nilly across the map, and that is what you are doing. So keep up the good work on that. I sent you a letter on April 14th that asked you to implement these changes. You are doing it, and you are doing a good job. Secretary Napolitano. Thank you, sir. Senator Schumer. Now, a couple of questions, one about the Peace Bridge up on the Buffalo-Canada border, of great importance to the western New York economy. In yesterday's Globe and Mail--I take it that is the Toronto Globe and Mail-- there was an article indicating there is an imminent border security agreement between the U.S. and Canada. The article specifically quotes CPB Commissioner Alan Bersin, who says he thinks, ``The United States needs to find ways of expediting low-risk cargo and travelers to focus resources on high-risk traffic.'' Nowhere is that more true than on the two bridges we have in western New York--the Peace Bridge and the Lewiston- Queenston Bridge. They are respectively the third and fourth busiest commercial crossings in the Nation, handling $30 billion in commerce between the U.S. and Canada. But my office has been fielding lots of complaints from business leaders and average citizens about the length of time it takes for commercial traffic to enter the U.S. from Canada, and that is mainly because the space on the New York side of the border is very small. There is plenty of space on the Canadian side. If we could do the inspections on the Canadian side, which everybody wants, it would be good. So can you commit to me that as part of any future border deal with Canada you will expedite commercial truck traffic to the United States from Canada by prescreening trucks on the Canadian side of the Peace Bridge and that this prescreening will begin soon? Secretary Napolitano. Yes. Senator Schumer. Great. There is no better answer than that. Yes and yes. I will take it yes to both, right? Good. OK. Let us go on to our next one. See, it always pays to start off with a compliment. [Laughter.] Secretary Napolitano. You can do that again if you want. Senator Schumer. Nanotech threats. Recent reports have highlighted--but, no, I am glad to hear it because this, as you know, has been a nightmare for us on the Peace Bridge, long before you were---- Secretary Napolitano. If I might, let me expand. I thought your question permitted a yes-or-no answer, and I thought I would give you one. Senator Schumer. Great. Secretary Napolitano. We really are very interested in how we can expedite the free flow of goods on both borders, northern and southern, and looking at ways where we can do pre- inspections, if not actually preclearance, on the Canadian side and to facilitate that into some of the smaller areas onto the U.S. side. So you have clearly got our attention. We have been working on this with---- Senator Schumer. This is just what we need because you could have a whole lot of booths on the Canadian side; you cannot on the New York side, just by the geography. OK. Let us go to nanotech. Recent reports have highlighted an emerging threat to the U.S. There is a growing concern that universities with nanotechnology research programs could be attacked by package bombs from Mexican terror groups who oppose nanotechnology for religious or cultural reasons. These same terrorists are already linked to attacks in Mexico, South America, and Europe. Praise God, none of them have happened here so far, but they clearly have an ability to cross international borders. New York State is one of the leading nanotechnology hubs with facilities in Albany and Troy--the capital region is probably number one in the country--and in Rochester. At the moment it is my impression that the Department of Homeland Security is not participating in efforts to keep schools and other hubs safe from attacks. Can you commit to working with and helping our New York universities and nanotechnology hubs with their ability to detect and thwart potential threats? And is your Department assisting the FBI to try and go after these groups? Secretary Napolitano. Well, without commenting on investigations in an open setting, I will say that we are working with universities and schools across the country on a number of things to increase their security measures. Senator Schumer. OK. We have not had that with the New York schools. Can you commit that you will work with the New York schools? Secretary Napolitano. Let me look into this, Senator, and we will get back to you on that in terms of exactly what is going on. Senator Schumer. OK. Good. But I am sure you would have no problem working with our New York schools to make them safer. Secretary Napolitano. No. Senator Schumer. Good. Thank you. And, finally, this is about fake IDs from China. I wrote you a letter in August, you may remember, about companies in China who produce exact replicas of driver's licenses from various States for sales to people who might be terrorists, illegal immigrants, or probably primarily underage teenagers trying to drink illegally. These licenses are very well done, with the bar code and everything else, so it is very hard for the person at the bar, or wherever else, to actually detect that they are false. Sometimes you can detect it by a false address, but they usually give an out-of- State one. So if a New York bar in Syracuse gets a driver's license that says 123 Elm Street, Altoona, PA, he has no idea that there is no 123 Elm Street, Altoona, PA. Last week, Western Union gave me good news by agreeing to work with the DHS to refuse payments to businesses who, when you indicate to them that they are providing fake IDs from China--this is the only way to cut it off if we do not allow them to wire money. That is what they do. And Western Union took a big step forward there. But despite this accomplishment, the work is not done. These new false IDs pose a major threat to the security of the U.S. as anyone who is on a no-fly list and terrorist watchlist can now evade our defenses by using these licenses to fly on airplanes with a false identity. A TSA agent who has the backlight is incapable--it is not their fault; I think they do a good job--is simply incapable of detecting whether these IDs are real or fake. So I am asking you to begin installing integrated electronic ID readers at TSA security points that can electronically scan and verify that the identification provided by an airline passenger in order to board a flight is indeed valid lawful identification. The readers should also electronically scan the name against terrorist watchlists, no- fly lists, et cetera. Are we on any path to doing this? What is happening? Can we expect it to happen? Secretary Napolitano. Yes, we are on a path. There is an installation plan. Part of it may be dependent on what we get in the fiscal year 2012 and fiscal year 2013 budgets, obviously, but we are on a path to have these integrated readers and are doing a number of other things for the detection--not just detection of fraudulent documents, but the flip side of that is verification of actual identity. Senator Schumer. Yes, OK. That is great. Well, thank you for your very fine answers on every question I asked. Secretary Napolitano. Thank you, Senator. Chairman Leahy. Senator Sessions. Senator Sessions. If you need to go, I will pass. Chairman Leahy. Senator Durbin. Senator Durbin. Thank you, Senator Sessions, and thank you, Madam Secretary. Congress has dealt you and the President an impossible hand. The United States has a confusing, dysfunctional, and often cruel immigration system, and you are charged with executing the laws that are associated with it. We all know as Senators and Americans that undocumented workers are an essential part of our economy, from the fields and orchards of California, Arizona, Utah, and Florida, to the meat and poultry plants of Iowa, Illinois, and across the Midwest, to the major restaurants in Washington, D.C., and Chicago. We avert our eyes and pretend these workers are all legal. We know better. They are an essential part of our economy, and yet there is this revulsion, aversion, and negative feeling about this, and you are caught in the middle. You are given these laws and are told, ``Make them work.'' I think you are right to speak about the issue of prosecutorial discretion. Every President and members of the Cabinet under the President have that responsibility, even recognized by the Supreme Court. And I certainly think you were right on August 17th when you sent me a letter saying that DHS will review all pending deportation cases, and that cases involving criminals and threats to public safety will be given priority while low-priority cases will be closed in many instances. You also said DHS would issue guidance to prevent low-priority cases from being put into deportation proceedings in the future. I appreciate your commitment to this process, but I am concerned. It has been 4 months since the Morton memo was issued and 2 months since you announced the process for implementing it. The review of pending deportation cases, as I understand it--correct me if I am wrong--has not yet begun. In fact, we do not even know what the criteria will be for the review, and you have not issued guidance on who will be put into deportation proceedings in the future. So when will your review of pending deportation cases begin? Secretary Napolitano. Well, the review of pending deportation cases--I think it is important to segregate cases coming into the system versus those that are on the master docket already. That is the 300,000 that I was referring to with Senator Grassley earlier. Those cases, that process involves not just DHS but DOJ as well. There has been an interagency group working on how you actually accomplish that. My understanding is that within the next few weeks they will begin piloting in certain districts the actual review and hope very shortly thereafter to begin going through the master docket cases. The goal, of course, is to administratively close some of the low-priority cases so that we can facilitate handling the higher-priority cases. In a way, we are kind of reverse--we are trying to adjust the line in terms of who goes through. Now, in terms of---- Senator Durbin. What is the timeframe? Secretary Napolitano. I do not have an end timeframe, but I can share with you that I would expect the full review process to be--the pilot will start in a few weeks. I would say 2 to 3 weeks. The pilot is not going to be one of these 6- or 12-month typical pilots. It will be very short in its design to find logistical issues that happen when you are trying to do a massive review of lots of cases all at the same time. So we all want to move as quickly as possible once we have kind of identified that we have got the logistics down. Senator Durbin. So let me ask you this: There are troubling reports that there are ICE and CBP field offices which have announced that these new deportation priorities do not apply to them. Is that true? Secretary Napolitano. Well, if there are some, I would like to know about it. I have personally, by VTC, spoken with the heads of the ICE ERO offices across the country and the heads of the OPLA offices across the country, which are the regional counsel. My understanding is that they are very excited about having clear priorities, that the priorities are the right ones. The priorities actually, Senator, I gave this Committee-- in May of 2009 I said we were going to start moving the system so we could focus on criminal aliens, and that is what we are doing. Senator Durbin. I was going at this point to show the faces and tell the stories of three DREAM Act students whom I believe most people would agree, having been brought to this country at a very early age, have made an amazing record in their short lives and are being held back from contributing to the United States. And I certainly believe the President's criteria and your criteria are the right criteria. Let us focus on removing those people who are a threat to our Nation. That should be our highest priority, and it certainly will not include these college graduates desperate to go to work and make this a better Nation. So I hope that you will continue along this line on an expedited basis. Last night, you may have seen or heard about the ``Frontline'' program that---- Secretary Napolitano. Oh, I have heard about it. Senator Durbin. Yes. It went into some detail about the immigration detention facilities. It focused on a number of them, but particularly on the Willacy Detention Facility in Texas. I learned a lot about--''Frontline'' always does a great job. But I learned a lot about the situation as I followed this program, that some 85 to 90 percent of those who were detained under civil charges--not criminal charges but civil charges--do not have benefit of counsel, that the due process requirements are very limited on their behalf, and that many times they are in facilities that are privatized--private businesses that are doing them and we do business with them. It has become a huge industry. I understand it is about $1.7 billion a year that your agency spends on these immigration detention facilities. There was an aspect of this program, though, that was particularly troubling. Maria Hinojosa in part of that program had a woman who was a victim at this Willacy Facility. She had been raped, and her identity was hidden from the camera, and she told her story about how it was virtually impossible for her to even seek justice in this circumstance because she was totally at the mercy of the guards in this privatized facility. Now, I joined with Senator Sessions and some of my other colleagues in passing the Prison Rape Elimination Act of 2003, and I thank Senator Sessions for his leadership on this, to eliminate sexual abuse in custody in the United States. We wanted to create a zero tolerance policy. The ``Frontline'' episode was not the first time we have heard troubling reports about sexual abuse suffered by those in immigration detention. The National Prison Rape Elimination Commission said in its report, ``Accounts of abuse by staff and by detainees have been coming to light for more than 20 years. As a group, immigration detainees are especially vulnerable to sexual abuse and its effect while detained due to social, cultural, language isolation, poor understanding of U.S. culture and the subculture of U.S. prisons, and the often traumatic experiences they have endured in their culture of origin.'' The Commission issued proposed standards. The Department of Justice is now finalizing its national standards to prevent, detect, and respond to prison rape. In April of this year, I wrote a letter to Attorney General Holder emphasizing the importance of strong standards. What is the Department of Homeland Security doing to ensure that immigration detainees are safe from sexual abuse whether they are in ICE facilities or contract facilities? Secretary Napolitano. When I took over as Secretary, Senator, we found that there were little or no standards being applied uniformly across all of the many detention facilities that we use in the ICE context. Some of them are public jails, like Weber County, as Senator Hatch referred to. Others are privatized, companies like CCA. We have to have beds and, in particular, given our priorities and how we are managing the system, we need beds that are near the southern border. We have as part of that process brought in someone to actually look at standards, and we redid our contracts with some of the private providers. We do have a process by which we are regularly auditing and overseeing what is happening there, but that is not to say that there are not cases that are particularly horrific. We also have, Senator, really tried to emphasize the availability of visas for those who are victims of crime, particularly victims of sexual crime and domestic violence, and we are trying to get out into the field the fact of the matter that the Congress and the regulations do permit these visas. So we will obviously review the documentary that was on last night and follow up appropriately. Senator Durbin. Please do. Secretary Napolitano. And we will keep you posted about that. Senator Durbin. I am going to send you a letter, and I thank the Committee for its patience here. I just want to make one last point. We spend, annualized, about $40,000 a year for each of these detainees when you figure $120 a day is the number that I have been told, and I am trying to discount that thinking some are probably not that expensive. Secretary Napolitano. That is probably a good average number. Senator Durbin. A good average? $40,000 a year. It is not that they are charged with a crime. They are in for a civil offense. They have no benefit of counsel, 90 percent of them, and very few due process rights, limited command of the English language, and they are easily victimized. I think we have a responsibility to treat them humanely and fairly in this situation. So my follow-up letter to you will not only address this issue of standards to protect them from sexual assault and rape, but also to go into questions about those with mental disabilities who have been brought into this system. There was this awful, awful case in San Diego that was prosecuted or raised just a few years ago where they have two individuals who suffer from serious mental illness who had been in the ICE system, lost in the system for 4 years. Four years. What I read and learned since the program last night and my study, there are totally inadequate medical facilities and staff for the people who are in these detention facilities, from psychologists and psychiatrists to nurses and dentists. I mean, really, if we are going to take the responsibility of incarcerating them, we have a responsibility to treat them humanely. And I want to work with you to make sure that happens. Secretary Napolitano. I concur. Thank you. Senator Durbin. Thank you. Chairman Leahy. Thank you very much. Senator Sessions. Senator Sessions. Thank you, Mr. Chairman, and it is a criminal offense to enter the United States illegally. It is not a civil matter. And we do provide health care for people who are captured entering the country illegally that need it, do we not, Madam Secretary? Secretary Napolitano. Yes, we do. Senator Sessions. So here you have got somebody entering the country and they have got a health problem, and we apprehend them and then we give them health care. I think in general they are being treated well. And isn't a fact that under Operation Streamline, people that are apprehended and prosecuted through a misdemeanor usually, I understand, prosecution, unless it is a repeat offense, are deported in far less than a year's time? Secretary Napolitano. I think that is right, Senator. I would have to confirm, but I think that is right. Senator Sessions. I think it is except for people from distant lands who you have difficulties returning them. Secretary Napolitano. The country may not want to accept them. That is right. Senator Sessions. Madam Secretary, I am very concerned about the morale of our ICE officers. I have spent 15 years as a Federal prosecutor working with customs officers and Border Patrol agents and others. You like to see them motivated, excited about their work, believing in their work, and they have to believe that people at the top support them and believe in the mission they have been given. And there is a real problem with this. In June of last year, the ICE union cast a unanimous vote of no confidence in the Director of Immigration and Customs Enforcement, Mr. Morton, and the Assistant Director of ICE Detention Policy and Planning, Phyllis Coven. That was just last June. And they found that, ``Senior ICE leadership dedicates more time to campaigning for immigration reforms aimed at large-scale amnesty legislation than advising the American public and Federal lawmakers on the severity of the illegal immigration problem, the need for more manpower and resources within ICE and ICE ERO to address it.'' They are currently, they say, ``overwhelmed by a massive criminal illegal alien problem in the United States.'' They go on to say--this was in 2010--``ICE is misleading the American public with regard to the effectiveness of criminal enforcement programs, like the Secure Communities programs, and using it as a selling point to move forward with amnesty-related legislation.'' This is their statement. Then, again, in June of this year, they report in this release, ``ICE Union leaders say that since the no-confidence vote was released problems within the agency have increased, citing the Director's latest Discretionary Memo as just one example.'' ``1A`Any American concerned about immigration needs to brace themselves for what's coming,' said Chris Crane, president of the National ICE Council which represents . . . 7,000 ICE agents, officers and employees.'' It goes on to say, ``This is just one of many new ICE policies [in queue aimed at] stopping the enforcement of U.S. immigration laws in the United States. Unable to pass its immigration agenda through legislation, the administration is now implementing it through agency policy.'' And he goes on to note that while immigrants' rights groups and other were involved in this policy, no input in these policies was received from the agency and its employees, which is one of the previous complaints that they have had. So, Madam Secretary, first, are you concerned about this? For 2 years now, it appears that the representative group for these officers has voted no confidence in your leadership. And to what extent have you confronted this question, met with them, examined the charges that have been made, and made a formal response to them? Secretary Napolitano. Well, let me, if I might, Senator, I like you have worked as a prosecutor for many years, particularly on border and immigration-related matters, and I believe that the priorities we have set are actually enhancing morale amongst our troops. And I think results matter, and the results are really incontrovertible now. We are---- Senator Sessions. Well, let me say---- Secretary Napolitano [continuing]. Removing more criminals from the United States than at any prior time. Now, with respect to priorities that have been set, when you actually read what Director Morton sent to the field, he refers in that document to a number of prior memos by prior directors that were in his or similar positions back in the old INS days, and the priorities set are very similar historically. And that is because they make common sense, and they reflect the reality that we have never had enough resources to remove everyone who is in the country illegally. And so you have got to have priorities and give guidance to the field across the country about what the priorities are. Senator Sessions. Well, I am just focusing mainly on the problems within the Department. I am told from the leaders of the ICE officers that morale is very low, and that they believe the new standards calling on them to consider DREAM Act-type issues in determining whether or not the person they detained ought to be released or not, whether they have got a high school diploma or whether or not they might be a witness to a crime, that these are very confusing directives and that it makes it more difficult for them to act effectively to apprehend people here illegally. I see you look with--you are very disdainful about---- Secretary Napolitano. Not disdainful. I am not disdainful-- -- Senator Sessions. I would just say that these are people on the front lines. You have not been out there having to deal with these arrests every day. Chairman Leahy. Let the Secretary answer the question. Senator Sessions. And I say for me, as a person who has worked with Federal agents for years, when you hear this kind of comment and votes of no confidence--I have never heard of that--you should be paying real attention to them, not rolling your eyes at them. Secretary Napolitano. I am not rolling my eyes. What I am suggesting is that results matter here, and priorities really matter, and that the results reflect the priorities we have set. And these are priorities that are consistent with prior administrations and, indeed, with what I testified to this Committee my first months in office, that this is what we were going to do. Senator Sessions. Well, I am told the ICE carried over from last year 19,000 removals, and they are counting them this year, and it is sort of a gimmick to making the removals look higher than they are. Are you aware of that? Secretary Napolitano. Oh, I think what you are referring to, Senator, is in the movement from fiscal year 2009 to fiscal year 2010, we made the decision that we would not count a removal until there was an actual verified departure from the country. And that had the effect of moving some removals from 2009 into 2010 because there was a calendar--you know, there was the removal order, but we did not actually verify the departure until fiscal year 2010. We have continued that practice into fiscal year 2011, so that the comparison between the 2010 and 2011 numbers are exactly the same. Senator Sessions. What I am hearing is that while claiming to arrest more criminal aliens, internal ICE documents show that DHS leadership has ordered field officers not to arrest fugitives and re-entries, and leadership efforts to conceal this from the public have led to confusion in the field. Officers are afraid to arrest, and suspected illegals have been aggressively pushing back, even showing agents the memo that you have. When they stop them, they show the memo and say, ``President Obama says you cannot arrest me.'' Secretary Napolitano. Well, if they say that, they are not reading it correctly because that is exactly not the case. They can be arrested. But at some point in the process, there need to be decisions made about who is to be removed. Now, we just had a discussion with Senator Durbin about how much it costs to detain somebody. It costs in the neighborhood of $23,000 to $30,000 to actually remove somebody. That is our cost. That does not include Justice Department costs. The Congress gives us the ability to finance removals of 400,000 people a year. We can just remove anybody without any priorities, and that would be one way to do it. Or the other way and the better way, and probably the way you ran your office when you were a prosecutor, is to say we want to focus on expediting the removal of those who are criminals, of those who are fugitives, of those who are repeat violators, of those who are recent entrants, meaning within 5 years, into the United States. And what you are now seeing is that the numbers reflect those priorities. Senator Sessions. Well, you have a problem with morale. I am confident--I think the officers feel like you have spent more time talking with the activist groups than the officers themselves and drafting guidelines that help them do their job. Thank you, Mr. Chairman. I am sorry to run over. You were patient. Secretary Napolitano. Thank you, Senator. Chairman Leahy. Thank you. Senator Coons. Senator Coons. Thank you, Madam Secretary, for your testimony in front of this Committee and for your disciplined and determined leadership of this remarkably far-flung and broad agency in these very difficult times. It is always a source of some pleasure and pride for me to see a fellow Truman Scholar also do well. And as other members of the Committee have commented, you face some enormous challenges, and I just want to commend you for the work you are doing given the limited resources you have got available to you and given the great pressures to keep America safe and to secure our borders and to respect our Constitution and to advance our national interests. Of the six priority mission areas for DHS, there is one that has not been touched on at all, and I wanted to take some time with it today, which has to do with ensuring the safety and security of cyberspace for the United States. I earlier today was at a secure briefing that was hair- raising--probably not in my case hair-raising, but was deeply concerning--about cyber attacks and the coordination between the intelligence community and DHS. Recently, a University of Delaware instructor, actually the man who also wrote ``Black Hawk Down,'' came out with a book, ``Worm: The First Digital War,'' which lays out a fairly disconcerting picture of the connection between the private sector and Government and how we are doing at coordinating our defenses and preparedness. Tell me if you would just at the outset how you see your Department coordinating with DOD, with the intelligence community, and with the private sector in making sure that we are sufficiently prepared defensively for the assaults that I really think are coming at us on a regular basis. Secretary Napolitano. Thank you, Senator. In fact, I was just in New York yesterday meeting with a number of individuals from the private sector, the financial institution sector, and the FBI on how we are coordinating in the protection of the cyber networks on which their operations depend. We really view ourselves, and I think the analysis is coming out and, legislation will come out, that DHS will have a primary responsibility with the protection of dot-gov networks and with the intersection with the private sector. We also through the Secret Service do crimes that are committed on the Internet, and we also do through ICE other kinds of things like child porn, for example, on the Net. But with respect to the protection of critical infrastructure networks, that is in our NPPD Division. We have a memorandum of agreement with the Department of Defense on this, and we also have a memorandum within them as to how we can both utilize the technological resources of the NSA. This is an area where, in my judgment, we need to grow. I think we will have a continuing and expanding threat. There is not yet any kind of international framework on which to hang our hats, and so there are a lot of challenges here, but it is definitely an area that we are moving forward on. Senator Coons. Thank you. Two things, if I might. In your written testimony, you reference a number of very successful partnerships with local law enforcement, with local communities, the ``See Something, Say Something,'' Nationwide Suspicious Activity Reporting Initiative, the Secure Communities Initiative. What do you see as the future role for local law enforcement, for local first responder communities, and, frankly, for the National Guard and Reserve in providing some of the first points of contact and a trained workforce to help provide the sorts of security for infrastructure, for local communities, and for local government as we build out towards a future where you are literally policing an online border? Secretary Napolitano. Right. We are discussing it with our local and private sector partners. But I think this will be a unique area for the fusion centers to help. The fusion centers are designed to be kind of an all-hazards collocation center. Almost all of them now have access to real-time classified information. I think through the fusion centers we can expand our local and private sector reach into the cyber arena. Senator Coons. One of my larger concerns about cybersecurity long term is the protection of American intellectual property as well. A number of the more egregious recent intrusions have been not just to access banking data or financial data or to steal people's identities for financial gain, but also to download or take very large quantities of American innovation and invention. So I just wanted to point you to a number of initiatives that folks on this Committee are taking. I hope to work with you and your Department in making sure that the legal infrastructure we put together makes sense and is responsible. I am also particularly concerned about infringing shipments, so I will move to that for a moment. My impression is that there are some ongoing challenges with Customs and Border Patrol when it intercepts shipments that it believes contain counterfeit goods and whether or not they share that information promptly and appropriately with the rights holders in a way that allows them to determine whether what is being blocked at the border is, in fact, counterfeit. That is something that some questions have been raised about whether CBP really has the necessary authority to share information about suspected infringing shipments with the rights holders and whether they can actually successfully protect shipments in a timely way. I would be happy to follow up further with your office if that is not something that is clear. Secretary Napolitano. Let us do that. Senator Coons. A last question, if might. The EB-5 Immigrant Investor Visa Program can be a real opportunity to attract to this country foreign nationals with significant resources who want to invest them in American companies or in American communities. Our State Director of International Trade has been trying to be successful in this, but the areas that have been most successful have been through regional centers where they are able to aggregate significant numbers of EB-5 applicants. And he has found real difficulty in getting clear information about which regional center models are more successful, which have had the greatest success, and so I just wanted to leave with you a question about whether DHS might release more information about which of the regional centers and which models have been more successful than others. Secretary Napolitano. Yes, Senator, I think we would be happy to have someone meet with the individual you refer to and really look across the country and see what is going on. Senator Coons. And I look forward to questions from my colleague about visa programs and how we can help advance tourism in the United States. I think there are good opportunities for us as well as challenges. Secretary Napolitano. Indeed. Chairman Leahy. We yield to your colleague from Minnesota, Senator Klobuchar. Senator Klobuchar. Thank you very much, Mr. Chairman. Thank you, Madam Secretary, for being here and for the work that you are doing every single day. I want to mention two things that I do not know have been discussed. I have been here for most of the questions, but just first is the good work that you have done in our area on flooding issues that FEMA has done in the Red River Valley and Administrator Fugate for his assistance during the Red River floods. It was very much appreciated. Secretary Napolitano. Great. Senator Klobuchar. And then the second piece of this is the work that I do not think many people focus on that you do with adoption when things come up and helping parents adopt children from other countries and some of the issues that come up. I did want you to know--at the last hearing I asked you about a family from the Philippines. Senator Sessions and Senator Inhofe and I worked together to pass a bill, as you know, which allowed older siblings, if they turn 16 or 17, to still be adopted if they have a younger sibling that is adopted. This literally allowed 10,000 kids retroactively to come into loving homes in our country. One of them was the Mikouras family that I brought up, and thanks to the help of your agency--they were going to have to leave the two older kids that had held this family of nine together when the mom died, and thanks to the work of your agency, the two older kids were able to get on that plane with the family. I met all nine children at a celebration in the community, and it would not have happened without the work of your agency, so I want to thank you for that on behalf of the family. Now, I am also on the Commerce Committee, and so I wanted to focus on some of those related issues. The first of which I know we have been talking about is the aviation security. It has been my impression--as someone with a hip replacement, that I deal a lot with your TSA people, and there has been a great improvement in morale over the last few years. They especially appreciate the vocal defense that you and Director Pistole have given to them when questions have been raised. And obviously questions should be raised, but overall they are protecting the security of the people of this country, doing incredibly difficult jobs. And the issue that I wanted to raise was just the new stick-image body scanner. Obviously that has been a concern of some people with the new security that is there. I have not had a problem with it at all. I think it is a great thing because it goes faster. But could you discuss this new software and give your assessment of how it has been working? Secretary Napolitano. Yes. We have begun installing software that, rather than the smudged photo-like image, is just a stick figure, and it identifies where there may be an anomaly that requires something needs to be checked. They may have forgotten to take something out of their pocket. Initially when this was being deployed in, I think it was, Schiphol Airport in Amsterdam, there were a lot of false positives. But those problems have been rectified, and so we are now in the process of installing that type of software throughout the country. Senator Klobuchar. Good. And what is happening with the Pre-Check pilot, which is, I think, implemented to--it is, again, some pilots that are going on to speed things along. Secretary Napolitano. That is right. ``Pre-Check'' is the name for the program. That is the domestic version of Global Entry. It is the process by which people can voluntarily provide information and biometrics, and then that will help speed them through the check-in or the security lines. Obviously, one of the issues with the pilots is going to be scalability given the number of passengers we have on a daily basis. But my initial reports are the pilot is very popular, and people really like it. Senator Klobuchar. OK. Senator Coons mentioned the tourism work. I chair that Subcommittee of Commerce along with Roy Blunt, and we just introduced the International Tourism Facilitation Act, which we worked with the State Department on those issues to make sure that we were doing something that had a chance of passing. We have also seen some improvements. We are waiting to get the exact numbers in the consulate offices on the State Department side and processing some of those. As you know, since 9/11 we have lost 16 percent of the international tourism market, which is about 467,000 jobs, and so while we want to keep all those security measures in place, as my colleagues have discussed, we also want to see if there are ways, while keeping them in place, that we can make them more efficient. Even if we had one more point of that international tourism market, it is 167,000 jobs in this country, and they are going nowhere else. They are jobs in the country. And so my question was about the background checks for tourist visas. They are performed by the State Department, but DHS does play a role in running background checks when a tourism B-1 or B-2 visa holder applies for an extension. Are you familiar with that? And how can we make that run more smoothly? Secretary Napolitano. Let me, if I might, Senator, check into that and perhaps have someone meet with you. When you say ``more smoothly,'' that suggests that there are some problems. Let us figure that out and see what is going on. Senator Klobuchar. Senator Blunt and I view this whole thing as workable. We do not want to change your security, but we really believe--and it is mostly consulate officers on the State Department side--that you can process these faster, and this is one issue that has come up with the DHS side. So we would love to work with you on it. Secretary Napolitano. Right, and as the former Governor of a State that was heavily dependent on tourism, I appreciate the fact that this is a jobs issue. Senator Klobuchar. Yes, it is really a big jobs issue, and we are actually excited about the new efforts going on, which we have just had no change for the last 2 years, and suddenly there seems to be a lot of interest in making some changes. So we are excited about that. The last thing I just want to follow up on was the cybersecurity issue. I share Senator Coons' view that this has got to be a public-private partnership. When you look at the fact that the private sector owns more than 80 percent of the networks, the cyber system networks, what more do you think we can do to encourage businesses and institutions to work with the Government on cybersecurity challenges? Secretary Napolitano. Well, I think this is one of the key issues that the Congress will have to take up when it takes up, hopefully, cybersecurity legislation. But the extent to which particularly private business that is controlling critical infrastructure of the country should give notice if there has been an intrusion or an attack, what kind of notice, how is it shared, what is the Government's role, is this an incentive, is it a mandate, these are all things, I think, that are appropriate for Congressional resolution. Senator Klobuchar. I think people were kind of shocked a few weeks ago, months ago, when that one worker working on the power grid--was that in Arizona? Secretary Napolitano. It was in southwest Arizona, yes. Senator Klobuchar. OK, not to mention Arizona in that light, but that the power grid had gone down, affecting the power for people in Southern California and other places. And I do think more has to be done to protect the power grid and what should our priorities be there, and I am looking at this from a cybersecurity issue. Obviously, that was an accident, but it does highlight that we should be doing more. Secretary Napolitano. Right. That was a situation where I think 2 million people were without power for 6 hours because of the accident of one worker. So I have asked my staff to look into what actually happened and why there were not redundant or fail-safe systems in place to deal with that. Senator Klobuchar. OK. Thank you very much. And I also have--I noted Senator Schumer discussing his Buffalo bridge. I have a few questions that I do not know that the other Senators would really care to hear about with northern Minnesota, and so I will put those on the record and ask that you answer them at a later time. Thank you. Secretary Napolitano. I would be happy to. Thank you, Senator. Senator Klobuchar. Very good. Senator Klobuchar. Thank you. Chairman Leahy. I would note to the distinguished Senator from Minnesota that it is not without precedent that questions that may appear to be parochial have been asked here. Senator Klobuchar. Well, I think I have asked a few of them, Mr. Chairman. Chairman Leahy. Note the one about maple syrup earlier. [Laughter.] Senator Klobuchar. I think I have asked a few, but I really appreciated the earlier answers, and I know my colleague Senator Whitehouse is here, so I will ask those on the record. Chairman Leahy. I would also note that there has not been a single time that I have called the Secretary that I have not been able to get a response. So this is not a Department where we have a difficult time getting answers. She has always been available. Secretary Napolitano. Thank you, sir. Chairman Leahy. Senator Whitehouse. Senator Whitehouse. Thank you, Chairman. Madam Secretary, your remarks about the cybersecurity legislation that we ought to be and shall be undertaking fairly soon make a good segue into my questioning. Let me first ask you what level of urgency and dispatch would you advise that we proceed to this legislation with. Secretary Napolitano. I would hope that you proceed quickly. This is an area that is evolving very rapidly. I think having a basis in statute for jurisdiction, authorizations, and the like is very important. Work has been done on the Senate side. Work has been done on the House side. I would hope that Congress can move very quickly to resolve this and give us a bill. Senator Whitehouse. And you hope that we can do it quickly because what? Secretary Napolitano. Well, because this is an area that deserves some foundation in statute. Right now we are moving administratively, and things are moving, and they are moving expeditiously. But it does seem to me that there is a lot happening here, which ultimately needs to be established not just jurisdictionally but fiscally as well. And so this is something that Congress is going to have to take up. Senator Whitehouse. Do you think that the legislation that has been proposed, the ideas that have been proposed, particularly for allowing more protection, more Government support for protection of our critical infrastructure can be implemented quickly and will make a real difference in terms of the safety and security of the American people? Secretary Napolitano. I believe so. But I want to be frank with you, Senator. One of the areas where the Department of Homeland Security needs to keep expanding its capacity and capability is in cyber. It is very difficult to hire professionals in this area. There is a lot of competition for these individuals. It is one of the reasons we initially made the decision that we would not try to replicate a civilian NSA with a military NCS, that there would be arrangements made to share some of that technological expertise. But this is an area, even in a period of restrained fiscal resources, that needs a focus. Senator Whitehouse. At the moment, if our NSA folks were aware of an attack that was targeting, say, an American bank, a financial processing center, an electric utility network, would they need, would you need the kind of authorities that this legislation can provide in order to be able to intervene and protect that civilian infrastructure? Secretary Napolitano. Senator, it is hard for me to answer that hypothetical as posed. What I can say is right now, particularly with the financial institution sector, we have a lot of cooperation. Whether we have the authority of command and control ultimately in the event of an attack, no, that would be something that needs to be looked at legislatively. Senator Whitehouse. So, hypothetically, the Government could be aware of an attack that was taking place, but be unable to do anything as the Government to respond and head off that---- Secretary Napolitano. Again, Senator, I am reluctant to answer the hypothetical as posed because in those extreme events, my experience now over the last years as Secretary is that, statute or no statute, we work things out. But the world would definitely be a better, more clear and focused place if we had a basic cyber statute to work from. Senator Whitehouse. Well, I will leave it at that. Thank you, Chairman. Chairman Leahy. Well, thank you. Senator Whitehouse has worked a great deal on this, and we are actually having a meeting, I think this afternoon, with some of us on cybersecurity. We passed a bill out of this Committee. There are other committees--Intelligence and Commerce and others-- that are involved. I think we have to do it. I am not as concerned now that somebody is going to try to hijack the passenger plane as much as I am that in the middle of the winter, when it ranges from 10 above to 30 below zero throughout the Northeast, and all the power grids get shut off through a cyber attack. You are talking about hundreds of thousands of people could die if it lasted any period of time. What happens if our air traffic control is turned off? Not only the image it would give to the rest of the world, but the huge, huge commercial disruption, plus the very real possibility of loss of life, depending upon where the planes are and what the weather is. These are things we have to look at. Communications, for example. What if all the phones all go dead? We move trillions of dollars worth of commercial activities each day in this country and overseas. If commercial transactions are closed down here or closed down overseas, these are things that we have to worry about. Secretary Napolitano. That is true. Senator Whitehouse. If I could add, Mr. Chairman, it is not only the risk of cyber sabotage to our critical infrastructure in finance and the electronic grid and communications, the places that you mentioned; it is also the question of the private sector's intellectual property being stolen and siphoned out through the Internet by some of our major international competitors in order to avoid either having to pay licensing fees to Americans who design stuff or to do their own research and development. How much more easy it is to hack into an American corporation's database and simply siphon out their trade secrets and rebuild a factory of your own. And it is being done by the terabyte. I contend that we are on the losing end of the single greatest transfer of wealth through piracy and illicit behavior in the history of humankind, and we are doing awfully little about it. Frankly, I had hoped to hear a little bit stronger clarion call from the Secretary about the urgency of passing this legislation and the kind of change that it can make if we get it passed. Secretary Napolitano. Well, if I might---- Chairman Leahy. And, remember, a lot of these attacks are state-sponsored. Everybody wants to dance around that, and we will not go into it more, but some of it is state-sponsored. And that is a form of warfare, one way of looking at it. You wanted to say something, Madam Secretary? Secretary Napolitano. I just wanted to clarify, Senator, I hope my answer did not suggest to you at all that we do not view this as urgent legislation. We do. The Department has participated, I think, in 80-some-odd briefings about the need for the legislation. We have testified 20 different times about the need for the legislation. We have participated heavily in the drafting of the legislation. We obviously believe there is an urgent need for the legislation. I was interpreting your question as what are you doing now and how are you getting by, but the plain fact of the matter is that our authorities, our jurisdiction, and moving forward the path would be much more clear, and there is an urgent need for legislation in this regard. And I am hopeful now that both chambers have been addressing this. That this is one area where the Congress is able to move. Senator Whitehouse. Good. It did sound a bit tepid, so I am glad you clarified your remarks, and I appreciate it. Secretary Napolitano. You bet. Chairman Leahy. Well, thank you. I understand that we are going to have votes here very soon, so I will wrap this up. I am going to have questions for you about the Secure Communities Task Force. I want to have a written response on that, and I have asked you previously about how DHS handles cases of U.S. citizens arrested and detained by ICE. I would like statistics on all U.S. citizens arrested under Secure Communities, the duration of their custody, and the resolution of these cases. [The information referred appears under questions and answers.] Chairman Leahy. I thank you very much. Do you want to add anything else? Secretary Napolitano. No, Mr. Chairman. I have enjoyed being the witness here today. Chairman Leahy. Yes, I am sure. [Laughter.] Chairman Leahy. Thank you. That would fall under ``a New England understatement.'' Thank you very much. Secretary Napolitano. Thank you very much, Mr. Chairman. [Whereupon, at 12:07 p.m., the Committee was adjourned.] [Questions and answers and submissions for the record follow.] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]