<DOC>
[108 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:95323.wais]
S. Hrg. 108-570
STATE AND LOCAL AUTHORITY TO ENFORCE IMMIGRATION LAW: EVALUATING A
UNIFIED APPROACH FOR STOPPING TERRORISTS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY AND CITIZENSHIP
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
APRIL 22, 2004
__________
Serial No. J-108-70
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
------
Subcommittee on Immigration, Border Security and Citizenship
SAXBY CHAMBLISS, Georgia, Chairman
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona PATRICK J. LEAHY, Vermont
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York
LARRY E. CRAIG, Idaho RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Joe Jacquot, Majority Chief Counsel
James Flug, Democratic Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia.. 1
prepared statement........................................... 47
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 7
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 86
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 3
prepared statement........................................... 95
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 122
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 4
WITNESSES
Harris, David, A., Balk Professor of Law and Values, and Soros
Senior Justice Fellow, University of Toledo College of Law,
Toledo, Ohio................................................... 15
Kobach, Kris W., Professor of Law, University of Missouri-Kansas
City, Kansas City, Missouri.................................... 9
Malkin, Michelle, Investigative Journalist and Author, Bethesda,
Maryland....................................................... 12
Picolo, E.J., Regional Director, Florida Department of Law
Enforcement, Fort Myers, Florida............................... 11
SUBMISSIONS FOR THE RECORD
Advocates for immigrant victims of crime, April 20, 2004, joint
letter......................................................... 34
American Council for Immigration Reform, Joan Hueter, President,
Arlington, Virginia, letter.................................... 40
Americans for Tax Reform, Grover G. Norquist, President, Hon. Bob
Barr, former Member of Congress, American Conservative Union
Foundation, David Keene, President, American Conservative,
Washington, D.C., letter....................................... 41
Anti-Defamation League, David Schaefer, Chair, Washington Affairs
Committee, Marvin Nathan, Chair, National Civil Rights
Committee, New York, New York, letter.......................... 43
Cambridge City Council, D. Margaret Drury, City Clerk, City Hall,
Cambridge Massachusetts, letter and resolution................. 45
Center for Immigration Studies, James R. Edwards, Jr., April
2003, Backgrounder, Washington, D.C., article.................. 49
Council on American-Islamic Relations, Nihad Awad, Executive
Director, Washington, D.C., letter............................. 60
Department of Homeland Security, Immigration and Customs
Enforcement, Washington, D.C., prepared statement.............. 62
Douglass, John M., Chief of Police, Overland Park Police
Department, Overland Park, Kansas, letter...................... 74
Federal Hispanic Law Enforcement Officers Association, Sandalio
Gonzalez, National President, Yuma, Arizona, letter............ 75
Friends of Immigration Law Enforcement, Craig Nelsen, Executive
Director, Washington, D.C., letter............................. 77
Harris, David, A., Balk Professor of Law and Values, and Soros
Senior Justice Fellow, University of Toledo College of Law,
Toledo, Ohio, prepared statement............................... 78
Heritage Foundation, James Jay Carafano, Ph.D., April 21, 2004,
Washington, D.C., memorandum................................... 88
Human Rights Watch, Alison Parker, Senior Researcher, U.S.
Program, Wendy Patten, U.S. Advocacy Director, New York, New
York, statement................................................ 90
Krikorian, Mark, Executive Director, Center for Immigration
Studies, Washington, D.C., statement........................... 99
Kobach, Kris W., Professor of Law, University of Missouri-Kansas
City, Kansas City, Missouri, prepared statement................ 109
Lemus, Gabriela D., LULAC News, article.......................... 124
Malkin, Michelle, Investigative Journalist and Author, Bethesda,
Maryland, prepared statement................................... 125
Mexican American Legal Defense and Educational Fund, Katherine
Culliton, Legislative Staff Attorney, Washington, D.C.,
statement...................................................... 134
Miller, Ronald, Chief of Police, Kansas City Police Department,
Kansas City, Kansas, letter.................................... 143
National Association of Counties, Larry E. Naake, Executive
Director, Washington, D.C., letter............................. 144
National Council of La Raza, Michele Waslin, Ph.D., Washington,
D.C., Brief.................................................... 146
National Immigration Forum, Washington, D.C.:
Letter, September 16, 2003................................... 166
Letter, September 30, 2003................................... 173
Letter, August 26, 2003...................................... 174
Letter, September 30, 2003................................... 175
Article, November 12, 2003................................... 177
National League of Cities, Donald J. Borut, Executive Director,
Washington, D.C., letter....................................... 181
New Detroit, The Coalition, Detroit, Michigan, letter............ 183
Norquist, Grover G., President, American For Tax Reform,
Washington, D.C., statement.................................... 186
Officers of law enforcement, April 21, 2004, joint letter........ 189
Orloff, Leslye E., Director, Immigrant Women Program, Legal
Momentum and Co-chair of the National Network to End Violence
Against Immigrant Women, Washington, D.C., statement........... 194
Picolo, E.J., Regional Director, Florida Department of Law
Enforcement, Fort Myers, Florida, prepared statement........... 224
RoperASW, Arlington, Virginia, March 2003, report................ 230
San Diego County Board of Supervisors, Thomas P. Walters,
Washington Representative, Washington, D.C., letter............ 256
Washington Times, James Edwards, Jr., June 1, 2003, article...... 257
STATE AND LOCAL AUTHORITY TO ENFORCE IMMIGRATION LAW: EVALUATING A
UNIFIED APPROACH FOR STOPPING TERRORISTS
----------
THURSDAY, APRIL 22, 2004
United States Senate,
Subcommittee on Immigration, Border Security and
Citizenship, Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 3:08 p.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Saxby
Chambliss, Chairman of the Subcommittee, presiding.
Present: Senators Chambliss, Sessions, Cornyn, and Kennedy.
OPENING STATEMENT OF HON. SAXBY CHAMBLISS, A U.S. SENATOR FROM
THE STATE OF GEORGIA
Chairman Chambliss. The Subcommittee will come to order. I
am glad we are able to have this hearing today and I appreciate
my colleagues, Senator Cornyn and Sessions, for being here. I
know that Senator Kennedy is on the way, and there are going to
be others joining us before we conclude today.
I particularly want to thank Senator Sessions for his
efforts in this area. I know he has worked very hard on this
issue and has a bill pending before the Senate and we look
forward to your input here today.
I also appreciate the work of my colleagues, Senator Zell
Miller and Congressman Charlie Norwood of my State, who have
also worked very hard on this. Congressman Norwood, of course,
has a bill over on the House side.
This is an important topic that covers both our anti-
terrorism efforts and the changes needed in our immigration
system. In the post-9/11 world, it is critical for us to think
about immigration and national security with a consistent
approach.
I think there is a consensus that our immigration laws are
in dire need of reform and today's hearing is another step
towards a comprehensive review. The system we have in place
today lacks incentives for immigrants to come to the United
States following the legal process in place. It also lacks
enforcement against those who choose not to follow the legal
process. It is my hope that we may continue the open dialogue
that the President has initiated and all Senators will continue
to work on the policy we have been addressing so far in this
Congress.
There are some disturbing facts that show just how serious
a lack of immigration enforcement can be. Three of the 19
hijackers on September 11 were stopped by State or local law
enforcement officials in routine traffic stops in the weeks
leading up to the attacks on our Nation. In August 2001, in
Arlington, Virginia, a police officer stopped Hani Hanjour for
going 50 miles an hour in a 30-mile-per-hour zone. He was
driving a van with New Jersey plates and produced a Florida
driver's license to the officer. Hani Hanjour was aboard
American Airlines Flight 77, which crashed into the Pentagon.
On September 9, 2001, 2 days before the September 11
attack, Maryland State Police stopped Ziad Jarrah for driving
90 miles an hour in a 65-mile-per-hour zone in a rural section
of I-95 near the Delaware State line. A videotape of the stop
shows the State trooper approaching the car, obtaining the
driver's license and registration, and returning to his patrol
car for a radio check of the credentials. Jarrah, who was on
the CIA watch list, was given a ticket and allowed to go. The
registration showed the car Jarrah drove that night was owned
by Garden State Car Rental at Newark, New Jersey's
international airport. The car was found at the airport after
the September 11 hijackings with the citation received by
Jarrah still in the glove box. Jarrah had boarded United Flight
93 that crashed in Shanksville, Pennsylvania.
Finally, Mohammed Atta was stopped by police in Tarmac,
Florida, in July 2001 and was ticketed for having an invalid
license. He ignored the ticket and a bench warrant was issued
for his arrest. He was stopped a few weeks later in a town
nearby for speeding and the officer, unaware of the bench
warrant, let him go with a warning. Hijacker Mohammed Atta is
believed to have piloted American Airlines Flight 11 into the
World Trade Center's north tower.
There is clearly a seriousness to today's discussion. We
need the laws to curb illegal behavior and to stop the bad
guys. We also need laws that can be enforced and will be
enforced. I am eager to begin that discussion, and I appreciate
our witnesses being here today.
Our witnesses are Professor Kris W. Kobach, former Counsel
to the Attorney General, now professor of law at the University
Missouri-Kansas City School of Law, Kansas City, Missouri.
Professor Kobach, we are certainly glad to have you with us.
Mr. E.J. Picolo, Regional Director, Florida Department of
Law Enforcement from Fort Myers, Florida. Mr. Picolo, we are
pleased to have you here.
Michelle Malkin, investigative journalist and author, from
Bethesda, Maryland. Ms. Malkin, we are certainly glad to have
you here.
And David A. Harris, Balk Professor of Law and Values,
University of Toledo College of Law, Toledo, Ohio. Professor
Harris, we are certainly pleased to have you here.
Before we turn to our panel, and anticipating the arrival--
here is Senator Kennedy right here. I will turn to my friend
and colleague, Senator Kennedy, for any comments he wishes to
make in the form of an opening statement.
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you. Thank you very much, Mr.
Chairman, and I appreciate your courtesy, as always. I thank
the witnesses for their patience here in working with us on the
Senate schedule.
In the past 2 years, Congress has done much to respond to
the terrorist attacks of 9/11. We have authorized the use of
force against terrorists and those who harbor them. We have
enacted legislation to strengthen security at our airports,
seaports, borders, and have given law enforcement intelligence
officials greater powers to investigate and prevent terrorism.
But not every measure or action proposed after 9/11 has
been effective, legal, or fair. The Attorney General has used
the fear of terrorism to justify actions that affect the most
basic rights in our society, and one of the most controversial
and counterproductive policies the Justice Department has
pronounced is the use of State and local law enforcement
agencies to enforce the immigration laws.
A Heritage Foundation paper published yesterday criticizes
the very legislation that this hearing is examining today, and
I also have many letters and statements from law enforcement
agencies, domestic violence advocates, and other organizations,
liberal and conservative, proposing this policy and I would
like to submit these documents for the record.
Chairman Chambliss. Certainly, without objection.
Senator Kennedy. Mr. Chairman, the Heritage paper sums it
all up for us. The proposed policy, quote, ``takes exactly the
wrong approach, inappropriately burdening State and local
enforcement and providing insufficient protections for civil
liberties.'' It is unnecessary because adequate authority
already exists. Besides unreasonably burdening local law
enforcement, irreparably damaging community policing and
undermining the safety of our neighborhoods, this policy will
impose heavy financial costs on State and local governments.
The Congressional Budget Office cost estimate says that
implementing a proposal like this will cost $9 billion over a
5-year period. That is a lot of money spent on a policy that
many law enforcement and security experts believe will
undermine national security.
Since 9/11, security experts have repeatedly stated that
good intelligence is the key to national security. Helpful
information comes from all sources, including immigrants. Local
communication shuts down. Immigrants are afraid to approach law
enforcement officials. We will forfeit important information
and jeopardize the security of our Nation. At this critical
time, we must keep all lines of communication open. We cannot
afford to undermine the trust of entire communities nor destroy
the successes that police departments throughout the United
States have achieved through community policing.
If this policy is implemented, it would effectively create
a class of criminals that would be immune to prosecution.
Immigrant victims of crime or witnesses would not report crimes
or seek assistance for fear of being arrested by the police.
Criminals would not be held accountable for their actions
because no one will come forward.
State and local enforcement of immigration laws also
invites discrimination and racial profiling since local police
do not now receive adequate training to understand our complex
and ever-changing immigration laws. In fact, none of the bills
pending in Congress mandates such training. Local police will
not be able to distinguish between an immigrant who is here
legally and another who is not.
Current law also provides ways to create effective
partnerships between local law enforcement offices and Federal
agents. States and localities can enter into memorandums of
understanding with the Federal Government to confer civil
immigration law enforcement powers on their local officers
after extensive training in immigration. Florida and Alabama
already utilize these MOUs. This MOU policy gives States the
option and the flexibility to use use of their police in ways
that meet the real needs of their residents.
So I commend the chair for calling this important hearing,
look forward to the testimony. We need to achieve the right
balance between protecting our country from terrorism and
respecting the rights of our citizens and immigrants, and I am
confident we can strike a fair and effective balance without
mandating State and local enforcement of Federal immigration
laws. I thank you, Mr. Chairman.
Chairman Chambliss. Thank you.
I now turn to Senator Sessions for any opening statement
you might wish to make.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman, very much for
having this hearing. The topic that we are having today is one
that I care deeply about. It is the ability of State and local
law enforcement to voluntarily aid--to voluntarily aid--the
Federal Government in enforcement of immigration law, and the
bill that I have offered and Senator Zell Miller and Larry
Craig and others have cosponsored is not the clear act referred
to by Senator Kennedy and does not require State and local law
officers to do anything. It gives them the ability to do so,
but it does not require them to do so.
The bill that I have offered, and it won't be the detailed
subject, as I understand, of today's hearing, will clarify the
authority of State and local police to act voluntarily. It will
ensure that State and local police have access to immigration-
related information through NCIC, which has not cleared it, not
today, and will increase Federal detention and removal
resources to support those local law enforcement officers.
Just as the Chairman said in his opening comments, many
times, it is these officers out enforcing traffic regulations
that come in contact with the most dangerous of criminals. S.
1906 does not commandeer State and local law enforcement and
does not require them to do anything.
I am proud that Alabama, along with Florida, have entered
into memorandums of understanding with the Department of
Homeland Security to be extensions and effective extensions of
their ability to enforce these laws. I think that is a healthy
thing. But it is a big deal and a complicated procedure and the
fundamental value of a police officer on the street should not
be denied simply because they haven't gone to a two-week
school.
We need comprehensive reform in immigration, as the
Chairman said, but I don't believe we will achieve that until
we have integrity in the system. That means a lot of things.
One of the things it means is we cannot push aside the 650,000
State and local officers as we currently do and say to them,
don't bother with immigration enforcement. It is a signal that
we have no interest in getting a handle on the terrorists who
come into our country and no interest in enforcing our laws.
A lack of immigration enforcement in our country's interior
has resulted in eight to ten million illegals in this country,
making it easy for criminal aliens to just disappear within our
borders. Of those here illegally, the Department of Homeland
Security has estimated that 450,000 are alien absconders, that
is, people who are under court order and just absconded and
disappeared. Eighty-six thousand are criminal illegal aliens,
people convicted of crimes, subject to being deported, in this
country and they have disappeared and been released, and 3,000
of those are from countries designated by the State Department
as state sponsors of terrorism.
So why can't we just find and deport these absconders,
criminal aliens, and terrorist threats? The answer is simple.
Leaving the job of interior immigration enforcement solely to
the mere 2,000 Federal interior agents inside our borders
guarantees failure. The number of illegal aliens outweighs them
5,000 to one. It is obvious that State and local police, a
force of 650,000 strong, sworn to uphold the law, with powers
to arrest mayors and Governors and, yes, United States
Senators, certainly should be allowed to enforce immigration
laws and should have the power to arrest those who are
illegally here and not citizens of the United States.
We know the American people care about this strongly. I
have a poll, I just would point out, that came out last March,
a Roper poll, ``Americans Talk About Immigration.'' Eighty-
eight percent of Americans agree, and 68 percent strongly
agree, that Congress should require State and local law
enforcement agents to notify INS, now ICE, the local law
enforcement, when a person is here illegally or presented
fraudulent documentation.
It is also clear that, additionally, 85 percent of
Americans agree, 62 percent strongly agree, that Congress
should pass laws requiring State and local law enforcement
agencies to apprehend and turn over to INS illegal immigrants
with whom they come in contact. In fact, they are shocked it is
not happening now.
It is clear that the first problem preventing State and
local law enforcement from participating in immigration
enforcement is confusion over authority, Mr. Chairman. A few
years ago, police from Alabama started telling me that they
have given up on calling INS because INS tells them they have
to have 15 or more illegals before they would bother to come
and pick them up. This is the pattern all over America. They
were basically told also they could not detain people and wait
for INS to come. So they were told, in effect, no matter who
you apprehend, to let them go. So I believe that telling police
this is wrong. It is unwise and we can fix it.
Only two circuits, the Tenth and Ninth, have expressly
ruled on State and local law enforcement authority to make
arrests on immigration law violations. Both of them confirm
that authority. The only confusion that exists really is dicta
in a 1983 Ninth Circuit case which addressed whether the
authority to investigate and make arrest changes if the
immigration violation is a civil one and not a criminal.
This confusion was fostered by a Department of Justice
memorandum in 1996 from the Office of Legal Counsel. However,
the relevant section of that opinion has since been withdrawn
by the Department of Justice. While the confusion seems minor,
the threat of lawsuits and of confusion over authority has, in
effect, helped paralyze State and local police who are willing
to participate.
Problem number two, the Federal agency responsible for
immigration enforcement told police chiefs in Alabama to let
them go, mainly because they didn't have the personnel to pick
them up or the detention space to detain all apprehended
aliens. A mere 2,000 officers and less than 20,000 appropriated
detention beds, we have got to have more attention to that
issue.
In February of 2003, a DOJ Inspector General report
entitled ``Immigration and Naturalization Service Removal of
Aliens Issued Final Orders'' found that 87 percent of those not
detained before an order of removal was issued were never
deported--87 percent. Dedicating the Federal resources needed
to effectively pick up and detain illegal aliens apprehended
and arrested by State and local law offices is a necessity if
we are serious about enforcement.
Problem number three, the first recommendation of the Hart-
Rudman Commission, the Commission's report entitled ``America
Still Unprepared, America Still in Danger,'' that bipartisan
report, their first recommendation was, quote, ``to tap the
eyes and ears of State and local law enforcement officers in
preventing attacks,'' and examples you read at the beginning,
Mr. Chairman, are just what we are talking about. The report
specifically suggested that ``the burden of identifying and
intercepting terrorists in our midst could and should be shared
with America's 650,000 county, State, and local law enforcement
officers, but they clearly cannot lend a hand in a
counterterrorism information void,'' close quote.
The burden could and should be shared with America's
650,000 State and local officials, but they cannot lend a hand
in an information void. State and local police are accustomed
to checking for criminal information in the National Crime
Information Center database, which is maintained by the FBI.
They can access it from roadside when they pull a car over or
to stop a suspect.
But separately, ICE operates the Law Enforcement Support
Center, which makes immigration information available to State
and local police, but it requires a second check, an additional
check to NCIC by the local police officer. This second check is
not known by most officers. They don't know how to access it.
They have no idea who to call and they are not doing so and it
does not work. It should be in the main system without doubt.
As part of its Alien Absconder Initiative, ICE is already
in the process of entering information on the estimated 450,000
absconders in the NCIC. But as of October 31, only 15,000 of
those 450,000 had been entered in the NCIC, a number I find
just unacceptable. And by February of this year, ICE had
increased the number of illegal absconders in NCIC from 15,000
to a mere 25,000, a number still totally unacceptable.
In a letter to me on February 12 of this year, ICE said it
was committed to using NCIC to its maximum effectiveness as a
tool for sharing immigration-related information. Therefore,
entry of alien absconders must rapidly increase and additional
immigration-related information must be entered into the NCIC.
I know that there are groups that are opposed to this.
Essentially, I would conclude that every time a proposal is set
forth that has any significant capacity to actually work,
identify and remove people who have violated the laws of the
United States, those matters draw objections and the objections
are for a host of different reasons, but they all have one
goal, to frustrate a system that actually works.
It is time for us to reform immigration law, as I know the
Chairman believes, and make it better and allow more good
people to come to this country who are entitled to this
country. We are a nation of immigrants. We welcome immigrants
who want to come here and we can increase that number that is
coming legally, but at the same time, we need to make clear
that those who do not follow the law will be apprehended and
detained and the best course is to come legally rather than
illegally.
Thank you, Mr. Chairman, for allowing me to take a little
extra time to share those thoughts.
Chairman Chambliss. Thank you.
We will now turn to Senator Cornyn for any comments you
have or for an opening statement.
STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF
TEXAS
Senator Cornyn. Thank you, Chairman Chambliss. I want to
also express my gratitude to you for holding this hearing and
other hearings you have had on related matters pertaining to
immigration law reform. This is relevant, it is current, and
the issue is not going away and we might as well come to grips
with it.
I am very interested in exploring the issues that are being
raised in this particular hearing because my professional
background as a judge and Attorney General has taught me that
in a nation of laws, the failure to respect any of those laws
leads generally to the disrespect for all the laws. I don't
think that law enforcement should have the liberty nor should
they be denied the resources such that they merely pick and
choose which laws to enforce and what laws they will ignore. I
believe that we can and we should enforce all of our laws.
Now, let me be clear. I don't think we should federalize
our State and local police forces and that is not what I
understand this issue to be. What I understand the issue to be,
and I think Senator Kennedy put his finger on two of those, one
is the cost and the other has to do with training. To me, those
are absolutely essential ingredients in doing what this hearing
suggests might be a viable option.
I don't believe we should go down the path of unfunded
mandates that burden already strapped State and local police
departments. Yet at the same time, it makes sense to me that we
explore the possibility of having 650,000 State and local law
enforcement officials, who are by their very nature the eyes
and ears of the community, work with and not against the
Federal Government when it comes to enforcing our immigration
laws.
As we all know, the Department of Homeland Security, and
Senator Sessions mentioned this, has about 2,000 interior
enforcement agents who are simply overwhelmed. They are
overwhelmed by the 800,000-plus illegal entries in this country
each year in the late 1990's. As we all know, Mr. Chairman,
from previous testimony at other hearings, they are overwhelmed
in almost every sense of the word. They are drowning in a very
difficult challenge when it comes to enforcing our immigration
laws and I think we ought to give them the help that they need
in order to do what America needs, and that is to enforce our
laws.
Now, we have heard the argument that any information shared
by State and local law enforcement authorities with the Federal
immigration officials will destroy community policing
initiatives as a crime-fighting tool. Certainly, community
policing initiatives are vital tools used by law enforcement
all across the country. But I am simply not convinced that
voluntary cooperation and information sharing by State and
local officers with Federal immigration enforcement officials
will make communities less safe. To the contrary, I think it
seems almost self-evident that it will make communities more
safe if it is done the right way.
So I look forward to hearing today's testimony. I am
specifically interested to hear how we can ensure that State
and local governments are not financially burdened if Senator
Sessions' bill or something like it is enacted, and I am
concerned by the provisions that eliminate certain SCAAP
funding because, of course, that has a huge impact on the State
of Texas. Right now, the Federal Government does a very poor
job of living up to its responsibilities with the financial
burdens that are being borne by border States when, in fact, it
is the Federal Government's responsibility, and this is just
one area. So I am very interested in hearing what impact this
type of legislation might have on that State Criminal Alien
Assistance Program funding.
And with that, thank you again, Mr. Chairman.
Chairman Chambliss. Thank you, Senator Cornyn.
We will now proceed to our panel, and I would tell each of
you that we have your full statement, which will be entered in
the record, and we would ask that you summarize that statement.
Professor Kobach, we will start with you.
Senator Sessions. Mr. Chairman, could I just make one
point? I know that several bills have floated similar to this,
but in the legislation I am offering, there would only be--
SCAAP monies would only be in jeopardy if the State or locality
actually stated a policy prohibiting communications between
Federal and local law enforcement over immigration issues. A
few may have done that, but none, that I know of, significant
departments have done that.
Chairman Chambliss. So noted for the record.
Professor Kobach?
STATEMENT OF KRIS W. KOBACH, PROFESSOR OF LAW, UNIVERSITY OF
MISSOURI-KANSAS CITY, KANSAS CITY, MISSOURI
Mr. Kobach. Thank you, Mr. Chairman, Senators. As has been
noted, the 9/11 terrorists were able to enter our country
undetected. Three overstayed their visas with impunity and all
moved relatively freely throughout the country without
effective interference from local law enforcement. It is also
clear that the effective assistance of State and local law
enforcement can mean the difference between success and
failure, not only in enforcing our immigration laws, but in the
war against terrorism on the domestic front.
But what I would like to do is briefly summarize the legal
authority upon which State and local police may act. That is
the legal authority aside from provisions of delegated
authority in Section 287(g).
It has long been recognized that there is this legal
authority for State and local police to arrest aliens who have
violated criminal provisions of the Immigration and Nationality
Act. Where some confusion has existed, as Senator Sessions
mentioned, in recent years is on the question of whether that
same authority extends to civil provisions of the INA. This
confusion was, to some extent, fostered by an erroneous 1996
opinion of the Office of Legal Counsel of the Department of
Justice. The relevant provision has since been withdrawn by
OLC.
However, the law on this is quite clear. Arresting aliens
who have violated either the criminal provisions of the Act or
the civil provisions that render them deportable is within the
inherent authority of the States, as the Attorney General has
said, and such inherent arrest authority has never been
preempted by Congress. This conclusion has been confirmed by
every court to squarely address the issue. That said, I will
proceed to offer my personal opinion as to why this conclusion
is correct and I offer this analysis purely in my capacity as a
law professor and not as a representative of the Bush
administration.
It is well established that the authority of State and
local police to make arrests for violation of Federal
immigration law is not limited to those--or Federal law of any
sort--is not limited to those situations where they are
exercising delegated Federal power. Rather, such arrest
authority inheres in the States' status as sovereign entities.
This is the same inherent authority that exists when, say, a
State law enforcement officer observes the commission of a
Federal crime and goes ahead and makes the arrest. That officer
is not acting pursuant to some delegated Federal power. Rather,
he is simply exercising inherent power of one sovereign to
assist another sovereign, and there is abundant case law on
this point. I would direct the Committee to U.S. v. Di Re and
Millier v. United States.
The Ninth and Tenth Circuits have expressed this
understanding in the immigration context specifically. The
Tenth Circuit has reviewed the question on several occasions,
concluding squarely that, quote, ``a State trooper has general
investigative authority to inquire into possible immigration
violations,'' end quote. That is from Salinas-Calderon.
Having established that this inherent authority exists, the
next legal question is whether such authority has been
preempted by Congress. In all forms of Congressional preemption
that our courts recognize, there must be some manifest intent
of Congress to preempt and displace this existing State
authority, and the critical starting assumption has to be that
the Federal Government does not normally intend to deny itself
any assistance that the States might offer, and that
presumption is a long-established one from the case of Marsh v.
United States.
But beside those presumptions as they are, in 1996,
Congress expressly put to rest any suspicion that it did not
welcome State and local assistance in making arrests in
immigration law. Congress added Section 287(g) of the INA
providing for these written agreements, but in doing so,
Congress stated that a formal agreement is not necessary for,
quote, ``any officer otherwise to cooperate with the Attorney
General in the identification, apprehension, detention, or
removal of aliens not lawfully present in the United States,''
end quote. That is from 1356(g)(10).
Moreover, the case law supporting the conclusion that
Congress has not preempted State arrests of aliens for civil
provisions of the INA is solid and on point. Again, looking at
the Tenth Circuit, you have the case of U.S. v. Vasquez-Alvarez
in 1999. I would also direct the Committee to the Fifth Circuit
opinion in Lynch v. Canatella in 1987.
Finally, on the subject of preemption, it must be noted
that if there were a conclusion that somehow the preemption had
occurred in the criminal arrest authority but not in the civil
arrest authority, then that conclusion would have to be reached
through what is called field preemption. But field preemption
would require a conclusion, or somehow would require us to
believe that there is a pervasive regulatory scheme in civil
violations of the Act, but there is not a pervasive regulatory
scheme in criminal violations of the Act. That is, to put it
lightly, absurd.
The criminal and civil violations are woven together. They
are part of one complete Act and some violations are civil and
some constitute criminal penalties, or trigger criminal
penalties. But there is not a separate kind of regulatory
structure that would lead to such a split preemption
conclusion, if that makes sense.
I want to summarize by talking about a few situations in
which it is critical that State and local police exercise this
authority. One is observation of suspicious activity that is
potentially connected to terrorism. I can't give the details of
actual cases in this testimony, but suffice it to say that I
can say that I have personally seen in my capacity when working
in the Justice Department cases where State and local police
observed suspicious activity and used their inherent arrest
authority to go ahead and make an arrest on immigration
grounds. My written testimony gives some examples of how that
might be constructed.
The second area where it is critical is in NCIC listings.
As has already been mentioned, there are several types of
aliens being listed in NCIC right now. The current number as of
March 1 is up to 28,000 absconders. The results are pretty
impressive. When you cast that wide a net, and you basically
are looking at everyone who gets a speeding ticket, you can
achieve real results. Of those 28,000 listed, 8,500 have been
arrested at this point. So it is an effective way of looking
for people who have made a mockery of our rule of law. People
have already had their day in court and lost. We have got to
rely on the NCIC system.
In addition, NCIC is critical for terrorist-related alien
violators of our immigration law. The NSEERS system, the
special registration system, has targeted people who are of
particularly high risk and their activity leads to believe that
they may be involved in terrorism. There are over 50, now,
NSEERS violators who are of such high risk that they have been
placed in NCIC. That is a critical subset of aliens, as well as
the deported felons file, which has been in NCIC since the
Clinton administration. So it is critical to make sure that
that way of getting information to State and local police
continues to be effective.
I want to also note that the interception of alien
smuggling is another case where this inherent authority, to the
extent that it can be maximized and can be encouraged by
Congressional action, should be undertaken. There are many
documented cases where State and local police intercept a
truckload of aliens being smuggled across the border, and for
one reason or another, they do not feel that they have the
authority to make the arrest. Not only is that, of course, a
threat to the lives of the aliens being smuggled, but it is a
huge gap in our law enforcement when there are the eyes and
ears of law enforcement on the front line and yet in some cases
they do not feel that they have the authority or the resources
to back them up in assisting the Federal Government.
That said, let me just conclude by saying that it is clear
that there is massive untapped potential to make real headway
in the war against terrorism and in the enforcement of our
immigration laws and I think this bill would be a great step in
tapping that potential and moving forward on this question.
Chairman Chambliss. Thank you, sir.
[The prepared statement of Mr. Kobach appears as a
submission for the record.]
Chairman Chambliss. Mr. Picolo, we are certainly glad to
have you here and look forward to your testimony.
STATEMENT OF E.J. PICOLO, REGIONAL DIRECTOR, FLORIDA DEPARTMENT
OF LAW ENFORCEMENT, FORT MYERS, FLORIDA
Mr. Picolo. Thank you very much, Mr. Chairman. As you are
aware, Florida in July of 2003 entered into the first of its
kind delegated authority MOU with the then-Department of INS
for 287(g). That was predicated on our efforts in Florida with
our Regional Domestic Security Task Forces to work domestic
security and terrorist-related investigations in our own State.
The task forces were established by statute just after the 9/11
atrocities.
As a result of our frustrations with the Federal system as
it exists currently, we approached the INS about the
possibility of the 287(g) authority being delegated to certain
law enforcement officers in our State and successfully
negotiated with them an MOU, which was signed in July of 2002
by then-INS Under Secretary as well as our Commissioner, or
Governor Jeb Bush.
Since that time, we have had an active--we trained our 35
local law enforcement officers. They attended a five-week
comprehensive training program put on by the INS. They have
subsequently been retrained, another week-long training program
to provide some additional refresher training. We have worked
hundreds of cases throughout our State, made a couple of
hundred arrests as a result of this MOU with absolutely no
complaints from any community groups, no complaints from any
individual that has been arrested regarding any violation of
rights or anything of that nature. So we are very proud of our
efforts.
We have had some problems as a result of the formation of
Homeland Security with the continuing efforts related to our
MOU. Quite frankly, when that legislation was passed and that
new Federal agency was established, it created a situation
where I think it takes a while for them to organize and
understand their own mission.
As a result of that, we lost our supervisory special agents
at each of our task forces. One of the primary focuses of our
MOU is every task that we complete under our Federal authority
is done under the supervisory authority of an ICE special agent
supervisor. Those individuals have subsequently been pulled
from our task forces, which essentially means that our MOU is
not effective. We can't enforce the MOU by policy without the
INS individual, or the ICE supervisors there.
We strongly support the continuation of 287(g) and similar
authority in our counterterrorism efforts.
Three weeks ago, we met with representatives from ICE in
our Commissioner's office, along with Collier County Sheriff
Don Hunter and representatives from ICE in Washington and Tampa
Bay to work out our differences. These outcomes are still under
review. The ICE has renewed its commitment to continue our
project and provide the proactive effort to prevent it from
becoming simply a stand-by program. Additionally, FDLE and ICE
have agreed to support another cross-designation class which
will provide an additional 35 cross-designated officers in the
State of Florida.
In closing, Florida strongly supports the continuation of
our 287(g) cross-designation program. We believe this authority
provides a strong force multiplier for our Federal partners and
our collective efforts to limit the possibility of another
terrorist attack. We remain willing and able to assist our
Federal partners in these efforts. By remaining committed to
our use of trained personnel and domestic security-related
investigative efforts, we are assuring that these highly-
trained officers will be put to the best use, thereby
protecting Florida and the nation.
I look forward to your questions.
Chairman Chambliss. Thank you, sir.
[The prepared statement of Mr. Picolo appears as a
submission for the record.]
Chairman Chambliss. Ms. Malkin?
STATEMENT OF MICHELLE MALKIN, INVESTIGATIVE JOURNALIST AND
AUTHOR, BETHESDA, MARYLAND
Ms. Malkin. Mr. Chairman and members of the Subcommittee,
thank you for the privilege of testifying before you today. I
approach today's topic from two levels, as a second-generation
American whose immigrant parents arrived here legally in this
great country three decades ago and also as an investigative
journalist who has reported extensively on the consequences of
lax immigration enforcement. My interest is in seeing the
failures of immigration enforcement remedied effectively so
that the American dream remains accessible to those who embrace
freedom and respect the rule of law.
There has been much public debate here in Washington over
the past few weeks about the wall of separation between the CIA
and FBI because the bureaucratic barricade between agencies
prevented crucial information sharing about potential terrorist
threats. But there is another dangerous barricade that impedes
communications between investigators and undermines our safety
and security. It is the wall between Federal immigration
authorities and State and local law enforcement officials.
Terrorists and criminal aliens alike have benefitted directly
and indirectly from this barrier.
When 9/11 hijackers Hani Hanjour and Khalid Almidhar needed
help getting fraudulent government-issued photo I.D.s, they
simply hopped into a van and headed to the parking lot of a 7-
Eleven store in Falls Church, Virginia, and that is where
scores of migrant day laborers supplied bogus identity papers
to other illegal aliens from around the world. During my
research, I visited the 7-Eleven. It is just a stone's throw
from the Pentagon, where Hanjour and Almidhar deliberately
crash-landed American Airlines Flight 77.
Well, the parking lot was, as usual, filled with so-called
undocumented day laborers and the local cops that I interviewed
suspect that most of these men are here illegally and that they
continue to facilitate trade in fake I.D. documents, but nobody
arrests them, and this is an all too familiar scene. Public
officials talk tough about the need for improved cooperation
among local, State, and Federal authorities to secure the
homeland, and yet several areas of the country remain safe
havens for criminal aliens and as magnets for immigration
outlaws with far more nefarious aspirations.
The overwhelming majority of illegal aliens, of course,
have no connection to terrorism, but they are breaking the law,
and one of the key lessons of 9/11 was that our continued high
tolerance for massive illegal immigration gives terrorists and
criminal aliens deadly cover. Remember, more than half of the
48 Islamic radicals convicted or tied to recent terrorist plots
in the U.S. over the past decade either were themselves illegal
aliens or relied on illegal aliens to get fake I.D.s.
The dangerous public safety impact of this other wall
reaches beyond terrorism. Last spring, I reported on the case
of David Montiel Cruz, also known as Enrique Sosa Alvarez. He
was an illegal alien from Mexico who dragged a 9-year-old girl
from her San Jose, California, home in broad daylight and he
faces trial later this summer for kidnapping and raping her
over 3 days. This case stands out as a textbook example of the
continued failures of interior immigration enforcement.
According to the San Jose P.D.'s official policy manual,
officers may not, quote, ``initiate police action when the
primary objective is directed towards discovering the alien
status of a person,'' unquote. Translation: San Jose cops are
prevented from proactively contacting the Feds if they suspect
violations of immigration law in the course of their duties.
Quote, ``Our department is very lenient,'' unquote, when it
comes to illegal aliens, San Jose P.D. Spokeswoman Katherine
Unger told me. ``We don't do anything on immigration,'' she
lamented. It is not, you know, politically correct. It is
frustrating.
It is important to note that this other wall is not just a
one-way obstruction. In untold instances, cops have reached out
to the Feds only to be ignored or rebuffed. A couple examples.
On Memorial Day weekend, 2002, with the nation on high
alert, NYPD officers contacted the then-INS and attempted to
turn in seven illegal aliens from the Middle East who had been
arrested with false I.D.s near a major tunnel. The agency
ordered the furious cops to release the men, who were all
admitted illegal aliens.
And just this week, four illegal aliens suspected of felony
crimes walked free--walked free--in White County, Arkansas,
after the Feds explained to local law enforcement that they
cannot automatically expel the men just because they are here
illegally. Quote, ``I had to hand this guy his car keys and
allow him to walk out the door,'' Detective Randy Rudisill
said. ``He is not even supposed to be in this country and he
admitted he was here illegally, but we can't do a thing about
it. Our hands are tied.''
Even if every State were to enter into cooperative
agreements with the Feds to train the nation's 600,000-plus
State and local law enforcement officers to enforce immigration
law, little would change without an effective system of
detention and deportation that puts an end to the standard
procedure of catch and release. This policy undermines homeland
security and has cost lives, and in my written testimony, I
cite a number of examples of that. The bottom line is that
increased enforcement and collaboration cannot succeed without
greatly expanding the Federal Government's 20,000-bed detention
capacity.
What happens when the wall between Federal immigration
authorities and local law enforcement officers is surmounted?
In at least one case, the decision likely saved untold lives. A
year and a half ago, I reported on the extraordinary
circumstances surrounding convicted D.C.-area snipers Lee Malvo
and John Mohammed.
On December 19, 2001, Bellingham, Washington, Police
Detective Al Jensen called the Border Patrol for assistance
during a domestic dispute involving Malvo, his mother, and John
Mohammed. The detective suspected that Malvo and his mother
were illegal aliens and the Border Patrol confirmed their
unlawful status and processed them as deportable aliens. Malvo
and his mother were fingerprinted and photographed and later
released pending deportation proceedings, against the
recommendation of the Border Patrol.
As we all now know, Malvo and Mohammed went on to carry a
bloody rampage that terrorized the greater Washington, D.C.
area and took the lives of ten innocent people. The toll
probably would have been higher if not for Police Detective
Jensen's decision to call the Border Patrol and have Malvo
processed as an illegal alien. His prints were taken by the
Border Patrol and formed in the former INS, now ICE database
called IDENT and they were found at an Alabama liquor store
crime scene. Those prints were critical in unraveling the
sniper case.
Now, neither Detective Jensen nor the Border Patrol agents
could have foreseen the havoc that Malvo helped create, but in
the course of just doing their jobs together, one local cop and
two Federal immigration officers may have averted an even
greater public disaster.
I think this case underscores the importance of basic
routine cooperation between local and State police and Federal
immigration authorities. Police officers are sworn to uphold
the law and to enforce it when they have reason to believe that
the law is being broken. Local cops don't sit back and watch
bank robbers escape because they lack jurisdiction over a
Federal crime. A State trooper wouldn't look the other way, one
hopes, if he spotted someone breaking into a U.S. Postal
Service mailbox or committing arson in a national forest. Just
because immigration law enforcement is not a local cop's
primary responsibility doesn't mean that he must or should
ignore indications that these Federal laws are being broken.
S. 1906 would help break down this other wall by affirming
the inherent authority of States and their political
subdivisions to apprehend, arrest, detain, or transfer illegal
aliens to Federal custody. It would increase criminal penalties
for illegal entry into the U.S., improve information sharing,
and it would address the Federal detention space crunch.
I think that these steps all reflect a fundamental
principle that must be adopted to make homeland security
meaningful, namely that immigration law breaking must carry
real consequences in a post-September 11 world. Thank you.
Chairman Chambliss. Thank you, Ms. Malkin.
[The prepared statement of Ms. Malkin appears as a
submission for the record.]
Chairman Chambliss. Professor Harris?
STATEMENT OF DAVID A. HARRIS, BALK PROFESSOR OF LAW AND VALUES,
AND SOROS SENIOR JUSTICE FELLOW, UNIVERSITY OF TOLEDO COLLEGE
OF LAW, TOLEDO, OHIO
Mr. Harris. Thank you very much, Mr. Chairman and members
of the Committee. I appreciate very much the opportunity to
speak to you today about this important legislation.
Over the past year, I have had the opportunity to travel
the country interviewing police officers for a new book I am
doing. I have interviewed police chiefs, captains, lieutenants,
many, many patrol officers, and I have been really surprised at
the one theme that has jumped out at me time after time after
time, and that is this. Please do not get us saddled with the
job of doing enforcement of immigration law. This is a
constant, recurring theme for local and State police, and I am
privileged to be here today to see if I can try to give voice
to why local and State police do not want this responsibility
and why they feel it is more properly a Federal responsibility.
Point number one, and it goes directly to what Senator
Cornyn was raising in his statement. I want to come right to
that, and that is this. There is probably no single innovation
or program in policing that has been more successful or more
widely adopted than community policing. Even police departments
that do not have a community policing program have adopted
wholeheartedly its core concept, and that is the police cannot
do the job of making the streets safe alone.
They need the community with them. They need a relationship
with the community. They need a partnership with the community.
Why? Because even the dumbest criminals don't usually do their
business in front of the police, so the police need
information. They need intelligence. They need people to tell
them where the criminals' business is going on and who is doing
it. It is that simple.
If they want that information, they have to have
relationships of trust with every community that they protect
and serve. Now, forging those kinds of relationships is very
difficult under the best of circumstances. It is doubly
difficult for immigrant communities to forge such relationships
with police departments. You have barriers of language. You
have differences in culture. Police have been diligent, have
done a great job building those bridges under some very
difficult circumstances.
In those immigrant communities, and when I say immigrant
communities, I am not just talking about the big cities. I am
talking about cities of all sizes, towns all over the country.
The fastest-growing immigrant communities in this country are
no longer in the Southwest, in Texas and in Florida and
California. They are in places like Georgia. They are in places
like Arkansas. They are all over this country.
So police departments everywhere face these issues, and
when they go into immigrant communities, some of the people in
those communities are illegal. That is a fact and it is a fact
we cannot get around, and police know that their success in
working with these communities and getting information and
making the streets safe depends on working with all members of
those communities.
If the people in those communities don't trust the police,
if they fear them because they think that the police are
working with immigration and have an interest in deporting
them, those people will not report crimes. They will not offer
assistance. They will simply act out of the basic human emotion
of fear, and that will cut off the flow of information to the
police.
I agree very strongly that we should look at local and
State police as our eyes and ears in the community. If we want
those eyes to see things and ears to hear things, they must be
in touch with the people they serve, whether those people are
legal or illegal.
That is why local and State police officers, to a person
that I spoke to, said over and over, please, don't put us down
this path. They say, I want to serve everybody in my community.
I want to protect everybody. I don't care what the status of a
person is, if a woman is, if she has been raped. I don't care
what the status is of a victim of domestic violence. I want
those people made safe. That is my job and I am going to do it.
Two things happen when the police officer doesn't get
information and doesn't get contacted out of fear of
deportation. Two things happen. Number one, the victim is not
served. Number two, and this is very important, the predator
remains on the streets to strike somebody else, and that is not
a cost that anybody wants to pay.
Two other points kept coming up in my conversations with
police officers. One was resources. They are simply stretched
to the limit. They have all kinds of new responsibilities with
homeland security. They have many things on their plates. To
give them a new job now with no new resources to do it under
the threat of losing Federal funds if they don't decide to
voluntarily cooperate in a time of the tightest State and local
budgets in a generation, there is no choice involved here,
really. They are going to have to go along with this and they
don't want to be forced to do that. It will take resources away
from their other priorities, the priority, the bread-and-butter
priority of making the streets safe.
Last but not least, they had another concern. That concern
is training. Training is important here because immigration law
is incredibly complex, incredibly complex. I was very
interested to hear what Mr. Picolo said about the training that
his men got under the MOU, five weeks plus another week of in-
service. That is the way we have to go if we want this done
right. Without the training, we are sending our officers out
there into a potential disaster, and the losers will be the
police because it is their relationship with the public that
will be undermined.
Thank you very much for the opportunity to speak to you and
I look forward to your questions.
Chairman Chambliss. Thank you very much, Professor.
[The prepared statement of Mr. Harris appears as a
submission for the record.]
Chairman Chambliss. Mr. Picolo, let me start with you. Your
287(g) was entered into, your MOU was entered into in July of
2002, correct?
Mr. Picolo. Yes, sir.
Chairman Chambliss. If you had had--
Senator Sessions. Mr. Chairman, you might note that MOU is
a memorandum of understanding.
Chairman Chambliss. I am sorry.
Senator Sessions. I didn't define that, either, when I was
talking.
Chairman Chambliss. This is a town of acronyms and we tend
to get wrapped up in that sometimes, so thank you, Senator
Sessions.
The memorandum of understanding that you entered into was
in July of 2002. If you had had that exact MOU in place in July
of 2001 when Mohammed Atta was stopped that second time for a
traffic violation and when a bench warrant was issued, what
likely would have happened as a result of that MOU being in
place?
Mr. Picolo. I think we would have had much better
communication between our local law enforcement agencies and
the Regional Domestic Security Task Force. That is the
mechanism that we use to investigate domestic security and
terrorist events in Florida. Virtually all of our local law
enforcement agencies in Florida now have at least a liaison, if
not a member actively assigned, to one of these task forces. So
we communicate regularly with them and whenever there is
someone identified that is of interest to a local law
enforcement officer, that is one of our primary
responsibilities as we go out and investigate that issue and
determine if that is someone we need to be more interested in
and need to pay more attention to.
Chairman Chambliss. Ms. Malkin, I agree with you that
information sharing is a critical aspect of not just
immigration law, but particularly the war on terrorism, and I
have been a strong advocate since my House days of trying to
improve information sharing both vertically and horizontally
with our law enforcement as well as other related entities.
I am sure you are probably familiar with the Heritage
report that has come out recently and has been critical of the
legislation that is proposed and the utilization of the NCIC,
saying it would be an overload on the NCIC if we put all of
these names into there. Give me your reaction to that. You have
had some experience with NCIC. What do you think about that?
Ms. Malkin. I don't think it would be an overload. I mean,
we live in the most technologically advanced, technologically
sophisticated society in the world. I think putting the
brightest minds to that task is not out of the realm of the
impossible.
I also think that the human toll with regard to failures to
do this kind of information sharing has to be exposed. Here in
Washington, we have been aware of these kind of failures ever
since the days of the railway killer, Angel Resendez. Again,
the IDENT database played a big part here because, I mean, if
you are going to appropriate money to these sophisticated
databases, there ought to be good information in them. From my
interviews with local cops, and I have done a lot of interviews
myself across the country, they have been clamoring for useful
information in these databases.
In the Malvo case, which I mentioned, I think is very
relevant and germane because those fingerprints of Lee Malvo
were in IDENT but they were not in the NCIC. Had they been in
the NCIC, the delay that it took before Malvo's prints were
identified led to a couple of other people being slain who
might otherwise be alive today because of that.
There is so much information that still needs to be put in
the databases, as well, including visa overstayers and the
absconders, and it is going slowly, but it is going. Again, I
don't think it is an impossible task.
Mr. Kobach. Mr. Chairman, may I comment on that question,
too?
Chairman Chambliss. Certainly.
Mr. Kobach. When I was at the Justice Department, I worked
extensively with CJIS, which oversees the NCIC system. There
are millions and millions of records in NCIC. Every single want
and warrant that any State or local jurisdiction has and wants
other jurisdictions to know about is tappable through NCIC, and
it is not like our home PC where we are running out of RAM
space. There is plenty of space there. We have already got
111,000 deported felon files in the NCIC and now we have got
these 28,000 absconders and less than 100 NSEERS violators. The
immigration portion is a drop in the bucket and we could make
that drop ten times larger and there would be no problem of
overloading the system.
Ms. Malkin. And if I just may make one final comment on
that, of course, nobody ever talks about the problems with
overload when it comes to registering, for example, law-abiding
gun owners. If we can do that, if we have the capacity to do
that, certainly we should have the capability of registering
people who are breaking the law.
Chairman Chambliss. Professor Kobach, the Heritage report
also criticized the proposed legislation on the basis that it
would tend to put more of a burden upon local law enforcement
officers and take away, as Professor Harris said, their ability
to do their bread-and-butter, day-to-day issues. I share that
concern and I want to make sure that if we move forward with
this, that we don't take away from our local law enforcement
officials their primary obligation of enforcing criminal laws
within their local communities. What is your reaction to that
report and this criticism?
Mr. Kobach. My reaction is that if we were trying to
displace their primary mission of enforcing garden-variety
criminal laws in their communities, that would be a problem.
But that is not what the objective of this bill or similar
bills are. The objective is to make it a secondary mission and
an entirely voluntary mission. If they don't want to do it,
they still don't have to. But there are a lot of police who are
extremely frustrated that they can't get more involved, and I
have to disagree strongly with Professor Harris.
As counsel to the Attorney General, I spoke on many, many
occasions to police organizations around this country and I
have continued my interviews since I have left the Justice
Department because I am really frustrated by this. I think this
is one of the biggest myths that has arisen on this issue.
There is not one bit of statistical evidence out there that
anyone has presented that I have ever heard of what percentage
or what number of crimes are being reported by illegal aliens.
I am glad Professor Harris is writing a book on this and I hope
he is able to find that statistic because his book will be much
stronger if he can give us some numbers.
I think this is a myth. When I talk to police officers, and
I try to say, do you have any reports, can you give me any
numbers, how many criminal cases have been based upon reports
from aliens, legal or illegal, in your communities, they laugh
at me, especially with the illegal part. The point is, if you
are an illegal alien in the United States, you avoid all
contact with law enforcement, period. They don't know the
niceties of whether it is a State authority or a local
authority or a Federal authority. The smart thing for you to do
is to avoid all contact with law enforcement.
So it is another myth that we are getting some massive
community assistance in policing from the illegal aliens that
have anything to fear. Now, the legal aliens, those alien
communities, absolutely. They can come forward and they have
nothing to fear. But I just think that there is not a lot of
evidence here.
I would also point out that the Major County Sheriffs
Association, which is the organization of the sheriffs of the
100 largest counties in America, has gone on record saying they
want greater cooperation and they are frustrated by those
instances in which there isn't adequate communication and
cooperation, especially those instances where they have someone
they would like to turn over to the INS and the INS says, let
them go.
And in my conversations with several police officers, this
is one theme that came out quite often, too. The officer
doesn't want to be the guy that let the obviously illegal alien
go who went on to rape someone or commit a murder or commit a
robbery. He doesn't want to be the guy who let him go. The
police officers, they have a strong instinct of where there are
certain apparent violations of the law, an individual may be
involved in other more serious violations of the law. And when
they cannot act upon, when they don't have the tool in their
pocket to enforce and make an arrest on immigration law, many
of them have this fear that they are going to be the police
officer that made the mistake and let someone go who goes on to
do a much more serious crime.
So I have a very different perspective on what police
officers are saying and I guess I would just like to see the
numbers, if there really is this massive amount of reporting by
illegal aliens, because I don't see it.
Senator Sessions. Mr. Chairman, just for the record, the
legislation I offered, the Homeland Security Act, does not
require police to do anything. The CLEAR Act, which the
Heritage Foundation evaluated as originally proposed in the
House, did have mandates on local police. So I think I just
want to suggest that the Heritage report was not focused on the
voluntary proposal I have offered.
Chairman Chambliss. Good point.
Professor Harris, I want to give you equal time. Do you
have anything to add to your initial statement on that,
relative to that?
Mr. Harris. Yes, sir. Thank you, Mr. Chairman. Well, Mr.
Kobach and I do have very different perspectives on this. I
have seen active programs in place in cities such as Chicago,
cities such as--you know, just all over the country, the
objectives of which are to let the community as a whole, not
just the legal residents but everybody, know that the police
are there for them. This sometimes goes on quietly. This
sometimes goes on with public relations campaigns. And it has
been very successful in a number of places around the country.
What police officers, from chiefs down to patrol officers,
said to me unprompted many, many times is you never know where
information is going to come from. There is no way to predict
who will be the witnesses to a crime, whether that person will
be legal or illegal. There is no way to predict who the victims
will be of crime except that if you push people out of the
circle of protection, if people feel that they cannot access
the police, they can't get to them, that they have something to
fear from the police, they are actually more likely to become
victims. That is a common occurrence.
Unless we are very, very conscious of what we are doing
here, we are going to send people farther away from the
authorities. We are going to send them--make them more hesitant
to come to the police. We are going to make them more fearful
when they come to the police and that just isn't in anybody's
interest, because like I said, they will stop communicating.
I don't think it is true at all that no illegal aliens are
communicating with police. That is simply not true. Talk to
police officers. You will see. And what they have to say is
valuable. If you want those eyes and ears in the community, we
have to open them to everybody. That is the long and short of
it.
Chairman Chambliss. Thank you. Senator Kennedy?
Senator Kennedy. Thank you very much, Mr. Chairman.
The provision which is included in S. 1906, to which
Senator Sessions refers, says that after 2 years from
enactment, any State or local that has a statute, policy, or
practice that prohibits local officers from enforcing
immigration laws or cooperating with the Federal immigration
law shall not be federally reimbursed for incarceration of non-
citizens and the State and local municipal reimbursements funds
that would have gone to these will be reallocated to
jurisdictions that are in compliance with the Act.
So it would suggest--I don't know whether, and I don't want
to spend a lot of time with this, that this is a little bit
different than just being voluntary. If they are not going to
have a problem, there is going to be a risk or it is going to
raise serious doubts in the minds of the police chiefs in those
areas, and I think that is the matter of concern. Maybe I don't
understand it correctly or I read it wrongly, but that is the
basic kind of concern, whether there is going to be a
requirement or something else.
I think we have heard about interesting programs,
particularly in Florida, on how this function can be done and
be done correctly, and I think it is a rather compelling story
that has been outlined for the Committee.
Mr. Kobach, I was interested in your comments about the
roles of police departments and the attitude of policemen. I
have the letters from three departments in Kansas that oppose
the legislation, Kansas City, Lenexa, and Overland Park. I
understand these are cities that are in the district you hope
to represent in the Congress.
The Chief of Police in Kansas City writes that they have
established good relationships with their minority communities,
but if this bill becomes law, they say it will have a
devastating effect on how we provide law enforcement. The Chief
of Police in Lenexa writes that his city, like many other
jurisdictions, is short on resources and manpower. This bill
would magnify the problem, force them to make cuts in other
areas. Oakland Park's Chief of Police has a similar concern,
writing that ``this bill would be detrimental to all who live,
work, and visit here,'' and he says he wants all to know that
the police are available to protect them, no matter who they
are and where they come from.
Why do the police departments in your own back yard believe
the policy that you support will jeopardize their ability to
keep your own community safe?
Mr. Kobach. I thank the Senator for providing that
communication. The Police Chief from Overland Park, I used to
work very closely with because I was a City Councilman at one
time in that jurisdiction.
I think it depends on how the question is asked. If you
frame the question, we want you to take a part of your mission
and devote to enforcing immigration law, you will always get
the same answer from resource-conscious police chiefs. No. We
don't want an additional mission foist upon us.
But what we are talking about here is a situation where the
arrest has already been made. The traffic stop has been made.
The police officer is now deciding what to do. The resources
have been expended. The only additional resource is the cost of
the phone call to the INS LESC, the Law Enforcement Support
Center.
So it is not as if we are asking them to go out on a new
mission and devote more investigatory resources. So I think,
like a lot of polling, it depends on how you ask the question
and I think you get very different answers.
The other point I would mention is to your point about how,
well, it is not voluntary in this current bill. I am not sure
if the Committee is aware, but actually under U.S. law already,
it is impermissible for a city to have in place a policy that
prevents sharing information with the Federal Government. This
is 8 U.S.C. 1644. Notwithstanding any other provision of
Federal, State, or local law, no State or local government
entity may prohibit or in any way restrict from sending or
receiving to the Immigration and Naturalization Service
information regarding the immigration status, lawful or
unlawful, of an alien in the United States.
As you know, many municipalities are simply violating
Federal law flagrantly by creating so-called sanctuary
policies, and as I understand it, the provision in this bill,
in S. 1906, would simply add some teeth to a Federal law that
has been utterly ignored by some municipalities and say, look,
if you are going to keep ignoring Federal law and put policies
in place to block your police officers from voluntarily calling
the feds, then look, you are going to lose some SCAAP funds,
and I think that is a completely reasonable--
Senator Kennedy. You are not here just to advocate the
repeal of the law. As I understand your statement, you are
saying that if you are not going to do it and to move ahead in
enforcement, they are going to lose local funds.
Mr. Kobach. As I understand it, the provision in S. 1906
will say if you have something on your books in your city
ordinances that says you are not going to comply with this
Federal requirement, then you are going to lose SCAAP funds,
and I don't think that is forcing them to undertake a mission
and expend resources.
Senator Kennedy. It says that it prohibits local enforcers
from enforcing immigration laws or cooperating with Federal
immigration law. There is something on that. It shall not be
federally reimbursed.
Let me ask, we had these three prominent conservatives,
Grover Norquist, David Keane, Bob Barr, who also wrote these.
It is amazing the company I am keeping these days.
[Laughter.]
Senator Kennedy. They wrote--
Chairman Chambliss. And that is in the record, too,
Senator.
Senator Kennedy. That is in the record. They wrote that the
bill will set a dangerous precedent. They talk about an
unmanageable burden on local law enforcement, and the critics
say the mechanism already exists to foster Federal law
enforcement cooperation when appropriate.
What is your own background in law enforcement?
Mr. Kobach. Serving as counsel to the Attorney General of
the United States.
Senator Kennedy. But you haven't--served as a law
enforcement officer or police.
Mr. Kobach. Also as a member of the Public Safety Committee
of a large municipality which oversees--
Senator Kennedy. Your total law enforcement is as a
counsel, is that correct?
Mr. Kobach. Yes. I haven't carried a gun in law enforcement
duty, if that is what you are asking.
Senator Kennedy. Well, no. You don't have to necessarily to
be involved in other forms of law enforcement. I am just trying
to get some sense of your own background in law enforcement.
Mr. Kobach. Sure. Lots of contact, oversight, not walking
the street as you might be implying.
But on the unmanageable burden point, if I might jump in
there, again, I think the--in many ways, the burden occurs
right now without this bill because some municipalities, some
local police will go ahead and try to enforce right now and
they will go ahead and make a detention in the hopes that the
Federal Government will act. And what is happening now in some
cases is that the Federal Government either says, well, let
them go and doesn't reimburse them for that detention expense,
or does ultimately take them but doesn't reimburse adequately
with adequate SCAAP funds. So I think the burden occurs now
when you have local law enforcement in good faith trying to
enforce Federal law and not getting adequate assistance.
Senator Kennedy. I am impressed by the Florida and Alabama
programs. I don't want to take a lot of time of the Committee
on this, because I have just one final question. It seems that
the police and law enforcement officers have a different
opinion from Mr. Harris.
I have the statements from Paul Evans, who is from my own
State of Massachusetts--I will include these--from the
California Police Chiefs, from President Rick Terbach. It is
the strong opinion that California police, in order for local
and State law enforcement to be effective partners, not be
placed in the role of detaining or arresting individuals solely
on the charge of immigration.
From Chicago, Police Department Tom Needham, former General
Counsel and Chief of Staff. ``It would be virtually impossible
to do it effectively if witnesses and victims, no matter what
their residency status, had some reluctance to come forward for
fear of being deported.''
Los Angeles County Sheriff's Department, Sheriff Leroy
Baca, ``I am responsible for the safety of the largest
immigrant community. My department prides itself in having a
cooperative, open relationship. This bill would undermine that
relationship--talking about the CLEAR Act, in fairness.''
Miami Police Department, New York Police Department, Chief
Michael Collins, Philadelphia Police Department, Andy Graber.
``If they are otherwise law abiding, we will not tell the
Federal Government of their status. We are afraid immigrants
would not report crimes.'' Seattle Police Chief, and the list
goes on.
It may be that they just don't want it, but we have seen
the examples both in Florida and Alabama, evidently, where they
are getting the training, they are getting the support, they
are getting the information where they are willing to take this
on and there has been a positive response to it. Again, I think
it underlines it.
Let me just wind up here, because the hour is going on. Mr.
Picolo, I understand the issue here is whether the State and
local police are equipped to take on the larger new burden of
immigration enforcement without the training, supervision, and
support you receive from the Federal Government under the MOU.
In talking about the MOU, Governor Jeb Bush said, ``I would
have a lot of trepidation if every police officer was going to
be a sworn INS officer and our duties end up with local law
enforcement becoming the immigration cops of the country.''
This is the Governor of Florida that is saying that.
The statement clearly argues against broad legislation to
expand the authority, certainly without the kind of careful
attention that they have given in the State of Florida in the
development of the training and the programs which developed, I
guess, under the State. Your comment just finally?
Mr. Picolo. That is the official position of the State. The
Governor does support the limited INS authority, at least at
this point with the legislation that exists. He does not
support the broader authority.
Mr. Harris. Senator, may I?
Senator Kennedy. Yes, just briefly and then my time--I
guess I do have another minute. Go ahead.
Mr. Harris. I just wanted to say that your comments are
very important. You know, the idea that the policy comes out of
some kind of misguided political correctness, I think, is
really insulting to police officers.
What this is, police officers are practical people. They
are pragmatic. They want to know what works and they know what
works. They have been on those streets. They have been in those
communities. They know that they have to work with the people
there no matter who they are. That is why they don't want to be
involved in this. That is why they want it done, if at all,
with the Florida model.
Senator Kennedy. Thank you very much, Mr. Chairman. My time
is up.
Chairman Chambliss. Senator Sessions?
Senator Sessions. Thank you, Mr. Chairman. I will just
offer for the record a list here of about 50 law enforcement
groups that support the CLEAR Act. This is the one that has the
mandates in it. The National Sheriffs Association, Law
Enforcement Alliance of America, the Illinois Association of
Chiefs of Police, the Iowa Association of Chiefs of Police
Officers, Connecticut Association of Women Police, the Southern
States Benevolent Police Association, and it goes on and on,
agency after agency, that support the CLEAR Act, the one that
had the mandate in it.
I would also offer a letter from 16 experienced immigration
law officers, a very thoughtful letter. I think it is important
to make it a part of the record. They say, ``We strongly
support S. 1906. We urge the Senators to cosponsor the bill.
Failure to act on S. 1906 only helps law breakers, forces both
Federal and all State and local law enforcement officers to
fight with one arm behind our backs and leaves a gaping hole in
the defense of this Nation and the enforcement of our laws.''
The National Sheriff's Association said, quote, ``Passage
of this legislation will settle the question of jurisdiction by
codifying and affirming local law enforcement's ability, when
properly trained, to enforce immigration law.''
The National Fraternal Order of Police says the FOP
strongly supports the efforts of Senator Sessions to enhance
the security of our Nation and will work closely with him to
craft legislation to that end.
And there are a lot more. The police officers I know, and I
know a lot of them personally. They are friends of mine. I was
Attorney General and United States Attorney for nearly 17
years. Those are my best friends, and they are not telling me--
I will tell you, I think Mr. Kobach is correct. If you say, we
are going to mandate you to do something, they are going to say
no, and they should. You mandate me to do something, I want to
be paid for every bit of it and I am still not sure I want to
do it, and I don't blame them.
But to tell them that we are going to allow them the
option, when they are out and made an arrest on the highway or
somebody is wrecked or been DUI that they can't even have a way
to participate, I think is quite different, and that is why you
have the support there.
I think that the concern has floated with the CLEAR Act
that had a mandate in it, as originally proposed, that did do
some of that. It probably would not be successful.
Let me ask you, Mr. Picolo, this, and I think it is
important to get straight. A memorandum of understanding in
Florida, that was pretty close to a cross-designation, what we
would call a deputization, was it not?
Mr. Picolo. Absolutely. That is exactly what it is.
Senator Sessions. So your law officers that went through
that training and participated in that MOU had all the powers
of a Federal INS officer, or at least those that were delegated
to them?
Mr. Picolo. Exactly, though it did specifically focus on
domestic security and counterterrorism investigations solely.
Senator Sessions. Yours was more narrow than the Alabama
MOU.
Mr. Picolo. That is correct.
Senator Sessions. Ms. Malkin makes the point, I think it is
of some value, that if a police officer observes a criminal in
the act of committing a Federal crime, they can act, as Mr.
Kobach cited the authority, is not that correct as you
understand it?
Mr. Picolo. Yes, sir.
Senator Sessions. So to me, you know more about grassroots,
I know you know that, it seems to me there are two different
things. One is you can have a memorandum of understanding and a
deputization as I have done on drug task forces and you are
probably familiar with. You designate a local sheriff officer,
cross-designate them with Federal authority and vice-versa.
That is a big step. But it is different, is it not, if a police
officer who has not been deputized is out on the interstate and
gets a hit on an illegal alien through NCIC or some other
factor? They don't have to be deputized to make an arrest
there, do they?
Mr. Picolo. No, sir, not to my knowledge.
Senator Sessions. Mr. Kobach, you have researched that. And
by the way, thank you for your extraordinary testimony and the
amount of legal research you put into it. I think it was a good
history and good background for all of us in the fundamentals
of immigration law. Did I say anything incorrect?
Mr. Kobach. You stated it correctly. If the alien's name
and date of birth are on NCIC, then by virtue of that listing,
there exists probable cause to believe that an immigration
violation has occurred and so the officer is completely within
the law in making an arrest.
Senator Sessions. Since there is no way to prosecute in
State court a Federal immigration law, the officer has to turn
him over to somebody who can, is that correct?
Mr. Kobach. Yes. We don't generally ask State law
enforcement to play any role in the prosecution of immigration
violations or in the processing of the administrative
violations, if we are not actually prosecuting the time.
Senator Sessions. I think that is the way the system, what
we are talking about, creating a system in which a local law
officer who stops a Mohammed Atta is not basically told to let
them go, don't even bother to check. That is what is happening
today. Then you have to have a system to get them turned over
and transmitted to Federal. You have created a group of State
officers that will help transport them to the Federal
officials, and Alabama has done that, too, which is helpful.
But I just don't think a major memorandum of understanding is
necessary for an average law officer to do his duty out on the
street.
Mr. Kobach, you mentioned that we have gotten 28,000 names
out of the 450,000 absconders put in NCIC. It is breathtaking
to me it takes this kind of time. It really should not, in my
view. But of that number, once they have been put in there,
8,000 have already been picked up.
Mr. Kobach. Yes.
Senator Sessions. I think that is a dramatic thing.
Mr. Picolo, isn't it true that today, if somebody skips
bail, is not arrestable on an arrest warrant, and they go out,
the police officer may make a search at their house, but if
they have moved and absconded from the territory, about all
they do is put it in the NCIC on the expectation that, sooner
or later, this guy is going to get picked up again and there
will be a hit and he can be brought back to that jurisdiction.
Mr. Picolo. That is exactly what happens, yes, sir.
Senator Sessions. And NCIC is the most historic change in
law enforcement, I guess in history almost, would you agree?
Mr. Picolo. Yes, sir. I have been in the business for 29
years now and it has existed my entire career. It has always
been a tool that I have used.
Senator Sessions. It is almost breathtaking to think that
we are not using it with regard to non-citizen illegal aliens,
wouldn't you agree with that?
Mr. Picolo. Absolutely, and again, that is one of the core
frustrations that led us to the 287(g) agreement to begin with.
Senator Sessions. Mr. Harris, do you see anything wrong
with putting in the NCIC the names and identifications of
people who have been arrested, ordered deported, who have
absconded, who have committed crimes and been ordered deported?
Do you have any objection to that?
Mr. Harris. Senator, I keep thinking of that incident six
or so months after the terrible events after 9/11 in which two
of the hijackers who were dead were contacted by the INS and
given permission to stay, or something like that.
The problem is not with using NCIC. It is with the records
that we want to put in them. If the records themselves are
inaccurate, incomplete, if they are not kept up to date, and I
have to say the INS has been absolutely notorious for this,
everybody agrees, we will have a system full of incomplete, out
of date stuff that will not actually be useful. We will have to
comb through the junk to find the gems. And in any system of
handling information, it is just as important what you don't
put in as what you do put in. That would be my hesitation. If I
knew that what the INS had to offer to put in was really up to
date and fixed, that, I think, would present a whole different
set of questions.
Senator Sessions. Well, the National Crime Information
Center is a confidential system that is available only for law
enforcement. It is an abuse to access it for any other reason,
but they do it every day for every kind of crime. You get a DUI
and you don't show up for court--
Mr. Harris. Yes, sir.
Senator Sessions. --your name is in there.
Mr. Harris. Yes, sir.
Senator Sessions. Perfection is not guaranteed in this
life.
Mr. Harris. No. Nobody looks for perfection.
Senator Sessions. And I can't imagine why it would be more
difficult to enter in an absconder from an immigration hearing
than it would be to enter a person who didn't show up for his
court date for a DUI. Mr. Kobach?
Mr. Kobach. Yes, if I can jump in there. Part of the reason
why the entering of data is going so slowly into NCIC regarding
absconders is because right now, the ICE is scrubbing the
records, as they put it, looking to comb everyone very
carefully to se if the individual has since left the country
and there is some record of him leaving, or if, in very, very
few cases--this would be less than one in 100--that the
individual has gotten a status adjustment and is now here
legally.
In the case of someone who has left, there is no harm done
by putting that record in. It is never going to be triggered.
And in the case of someone, the very, very minuscule number of
cases where someone has actually gotten a status adjustment,
then you might have an arrest which the moment they make a call
to the LASC, the LASC can say, well, actually, they got a
status adjustment. You can let them go. So they might be
detained for a few minutes extra. But the cost is minimal, so I
share your frustration with the slowness of the adding of data.
I would also elaborate on your point earlier about Mohammed
Atta and when he was in the custody of that officer in Broward
County, Florida. If we had this bill in place, I think things
would have been different. This bill, in combination with what
the ICE has been doing with the NSEERS system, where
individuals coming from particular countries or holding certain
profiles overstay their visas, that also dumps those names into
NCIC right now and it is unclear whether Mohammed Atta would
have triggered that or not.
If you add the bill S. 1906, and especially the provision
requiring known overstays to go into NCIC, that officer would
have had a hit when he typed in Mohammed Atta's name and date
of birth in his squad car computer. That might have caused the
plot to unravel. Who knows. Maybe he was just one of the 19 and
maybe it would have gone on without him.
But the point is, if we could go back in time and do
everything we could to try to prevent that from happening, I
would certainly think that we would try to do this, get as much
information to State and local police through NCIC as possible,
and I don't see any strong legal or policy objection to doing
so.
Senator Sessions. Thank you, Mr. Chairman.
Chairman Chambliss. Senator Cornyn?
Senator Cornyn. Thank you, Mr. Chairman. Mr. Chairman, it
seems to me that we have come to the point as a result of the
various hearings that you have chaired in the immigration
reform debate dealing with various aspects of it where I think
it has become increasingly clear that we have two choices to
start with. One is to do something and one is to do nothing.
Clearly, I am on the do something side and I think it is
important as a result of this hearing and others that you have
had to determine exactly what that something is.
But I don't want any of us to be under the illusion that
doing nothing is free. Obviously, there are a lot of costs
associated with it. The Federal Government has done a lousy job
across the board and particularly in foisting the costs of
illegal immigration onto the State and local government. Last
year, the Federal Government provided $250 million in SCAAP
funding for criminal aliens and that is the State Criminal
Alien Assistance Program, which is supposed to reimburse the
cost of detention and law enforcement related to these aliens,
but that is about a third of the documented costs to State and
local governments. Texas got $20 million, and I should tell
you, that is a fraction of the costs that have been incurred by
State and local government in my State.
You add on to there unanticipated costs, like health care
costs of people when they are in detention, which is
uncompensated and performed by the local taxpayer and the
State. I had to get that off my chest.
But with that, I want to ask Professor Harris and perhaps
others of you about community policing and reimbursement for
costs, payment of costs and training, which I think are all
legitimate issues that we need to figure some way to deal with.
One of the things that I read, and Professor Harris, maybe
we can start with you, is while community policing is
important, and I would grant you that, I agree with you on
that, that a lot of the violence and crime being committed is
simply unreported at all by people who are reluctant to call
law enforcement authorities, whether they be State, Federal, or
otherwise. And so I know it is hard for us to get a handle on
how much is occurring because it is not being reported. It is
hard to quantify what you don't know or what is not being
reported.
But a lot of the crime, it is my suspicion--I think this is
probably true--is being committed by members of that community
against each other, and so there is sort of a double-whammy
there. So rather than only looking at the trust, which is
important, between law enforcement and the community, I am
wondering whether it is the community itself, let us say in
this instance illegal immigrants, who are suffering the most,
or how you would put that in the balance of deciding how we
deal with this problem.
Mr. Harris. Yes, Senator. It is clearly the community
itself that suffers the most. You are quite correct that many
crimes do go unreported. A surprising number of crimes go
unreported. It always surprises me when I look at those
statistics.
The community itself suffers the most when predators roam
the streets, and they generally roam in their own communities.
That is why when you have immigrant communities, it is doubly
difficult and doubly important to make the efforts to have
connections with people so that they will work with the police.
It is not the natural inclination of many in immigrant
communities to work with police because many of them come from
countries in which police are corrupt, in which it can't mean
anything good when the police officer comes to your door or
stops your car. And building that kind of trust so that
immigrants in general will come to see that working with the
police is very much in their interest is a very difficult task.
I think it only becomes more difficult if we add other
reasons to fear this police. This is why, for instance, police
in your own State, in Austin, Texas, have made very concerted
and strong efforts to connect with their immigrant communities
to impress upon them that they want people to come forward and
they want people to do things to prevent the crime before it
happens.
They want to have drug dealing reported to them. They want
to have every robbery reported to them. They don't want these
cases to fall through the cracks and they will do what they
have to do, the police tell the community, to make them safe,
because every time they don't make them safe, every time a
crime is not reported, adding any additional reasons not to
report crimes simply makes it more difficult for the police to
do. It adds more victims within that community, outside that
community. Making the streets safe is always the top priority
for local police, and community policing has, frankly, been
popular because it works that way, because it actually shows
real results over time. It gets police where they want to be.
It brings crime down in the course of connecting communities
with their officers.
Senator Cornyn. I will go to Mr. Kobach in just a second to
respond to that same question, but let me just say, Professor
Harris, since you mentioned Austin, it always concerned me that
when we call ourselves a nation of laws, when communities like
Austin and others had day employment facilities where obvious
immigrants, and who knows how many of them are here legally
versus illegally, are waiting to be hired for day labor and
what kind of mixed message we are sending to the community as a
whole. We are a nation of laws, but we only respect some of
those laws.
Mr. Harris. That is very true.
Senator Cornyn. How do you address that?
Mr. Harris. It is a very, very good and penetrating
question, Senator, because what it points out is that the
immigration problem--and we have a huge immigration problem in
this country--the immigration problem is a problem of economics
as much as anything else. The reason that people go and hire
day laborers, some legal and some not, is because, frankly, it
pays. They find it a good thing. It is good for their business.
The people want to work. They might work for less.
And until we address some of those basic questions of
economics, I don't have any wish to make our discussion more
complicated, but simply relying on law enforcement will only
take us a certain distance. It is like many other problems. If
you have only one tool, a hammer, everything will look like a
nail. Unless we go beyond thinking of this just in law
enforcement terms, we will not make any kind of progress.
It is not a good thing for society when laws are not
honored. But what we need to do is we need to think how is the
best way to bring this whole system in conformity with law.
Senator Cornyn. Mr. Kobach?
Mr. Kobach. Yes, Senator Cornyn. Thank you. I would have
two responses. One, with respect to community policing, those
communities that have gone the farthest in the direction of
accommodating or taking a hands-off policy toward illegal
aliens are, of course, those communities that have formally
adopted the so-called sanctuary policies, where they formally
prohibit their police officers from communicating with the
Federal Government or formally prohibit their police officers
from asking the questions.
To take Professor Harris's words, it is the community that
suffers, I would say exactly. There has been a lot of
documentation in Los Angeles, which has had a sanctuary policy
for a long time. Right now, 95 percent of all outstanding
warrants for homicides in Los Angeles are for illegal aliens,
95 percent. What it does is it creates a haven where those
aliens who are involved in other illegal activity know that
they won't be bothered.
There are numerous reports from police officers who say,
look, we know that these gang members have left. They have been
deported already. We see them back. We know that they are
illegal. We aren't allowed to make any arrest on that basis. We
have to wait until we have evidence of some other crime. Now,
they know that there is an immigration violation occurring, a
criminal immigration violation, by the way, to reenter after
deportation, occurring right in front of them, a continuing
violation, but they can't do anything about it.
Consequently, the gangs know this and they know that they
are going to be able to reenter with impunity. And another
statistic that I just found shocking is that 60 percent of
L.A.'s 2,000-member 18th Street Gang, which is a particularly
violent drug trafficking gang, 60 percent is composed of
illegal aliens, it is estimated. The aliens see this, and it is
indeed the community that suffers when the police's hands are
tied.
And that leads me to my second point, and that is, really,
if communities follow these sanctuary policies or if the
Federal Government doesn't act to clarify and say, look, you
can act and we want to encourage your city councils to allow
you to act, then you have a tool taken out of the tool box. You
look at some of the cases that the Tenth Circuit and Ninth
Circuit have adjudicated. Usually, the case arises in a
situation like this.
The police is watching the group of aliens because he is
trying to make a drug bust. He is trying to pursue some other
investigation and he doesn't yet have enough information to
make an arrest based on that, but he is getting close. But he
then comes across information that the alien is here illegally.
Well, sometimes it makes more sense in law enforcement to build
the quickest case you can, to use that tool, which is an
effective and fast tool and say, well, we know we have an
immigration violation here. We can get the person out. We can
stop this drug ring on that basis, and that is exactly the kind
of situation that led to those cases in the Tenth Circuit.
It is kind of like Al Capone. It would have been harder to
build the case on the racketeering charges, but tax evasion was
easy. Well, similarly, it is sometimes hard to build the case
on drug trafficking, but immigration is easy. We are taking
that tool away from police officers and we can make our
communities safer if our police officers have more tools.
I would just like to beg the Committee's pardon. I am going
to have to depart early, and I thank you for the opportunity to
testify.
Senator Cornyn. My time is up and so am I. Thank you.
Chairman Chambliss. Mr. Picolo, there was a recent AP story
where it was reported that sheriffs on the Florida Domestic
Security Task Force oppose issuing driver's licenses to illegal
aliens. Can you shed any light on that, particularly with
reference to the security concerns that may be present in that
thought process?
Mr. Picolo. Yes, sir. The sheriff that has raised the
highest concern, Sheriff Don Hunter, is in my region and was
just in Tallahassee Monday on it. The bill was introduced
approximately three weeks ago and we are nearing the end of our
legislative session. The primary concern was regarding the
documentation requirements to secure such a license.
It is, quite frankly--we quite frankly have very little
confidence in the source documents that many of these aliens
possess and the authenticity of the source documents that many
of these aliens possess. Some of the other source documents,
such as matricular consular, we have very little confidence
that those types of source documents would be accurate
reflections of who we are actually issuing a driver's license
to, and until those kinds of concerns can be addressed, I don't
think the sheriffs in Florida are going to support this
legislation.
Chairman Chambliss. Thank you. Senator Sessions, anything
else?
Senator Sessions. I wanted to ask Ms. Malkin about the
Malvo situation. I know that that fingerprint in Montgomery,
Alabama, played a role in his apprehension, John Mohammed. But
you mentioned that the print went into the IDENT system but not
to NCIC. Would you explain for those who are not sophisticated
in that what that means and why that was important?
Ms. Malkin. The IDENT system was used by the legacy INS,
and I believe ICE now, to fingerprint and photograph suspected
illegal aliens and Malvo's two index fingers were recorded into
the system and those were the only records on file of his
prints. So when the local authorities in Alabama were trying to
identify the fingerprint at the Alabama liquor store scene
where apparently Malvo and Mohammed had committed a robbery,
they couldn't find anything, and that is because they were
looking in the NCIC database. I think that case just
underscored the need to merge those two databases, and as
Professor Kobach, I think, mentioned, that effort is going on
now.
Senator Sessions. And one more question. You mentioned the
San Jose situation. I appreciate your writing. It is superb,
and you articulate this well. How would you articulate the
mentality of the average police officer in the San Jose Police
Department with regard to their conflicted responsibilities of
trying to enforce the law and then being told what they can't
do? What did you learn from that?
Ms. Malkin. Absolute frustration. I mean, it was
extraordinary that a spokesperson of a police department would
be as candid as Ms. Unger was with me. I think it is a little
bit too convenient to dismiss and pooh-pooh the politically
correct culture and the effect that it has on morale of these
police departments, particularly in sanctuary cities like Los
Angeles, New York, San Jose, Portland, Seattle.
I have interviewed dozens of police officers who want to
cooperate, who would like not to have that sort of Sword of
Damocles hanging over their head, that if they were to
proactively contact Federal Homeland Security Department
officials, that they might suffer negative consequences, and
these are people who work day in and day out with the victims
of massive illegal immigration and law breaking, and as has
been said, in many cases, the victims of those crimes are
illegal aliens themselves.
Now, there is no empirical evidence that knowing that they
could be turned in will lead them not to cooperate with law
enforcement. I mean, I just cited the Malvo case. This is not a
sanctuary city and certainly Malvo's mother knew that there was
a risk that they could be turned in and they suffered the
consequences of that risk.
I personally and candidly believe that it is not a bad
thing for law breakers, and immigration law breakers in
particular, to feel some sort of fear that they might suffer
the consequences of their law breaking. I mean, this is the
problem. This is the problem with before September 11, and
unfortunately afterwards, is that we think that immigration law
breakers should be exempt. And I think getting a handle on it
and starting to get a handle on our immigration chaos means
starting to enforce the law uniformly and consistently and
without apology.
Senator Sessions. One brief question. With regard to the
part of the legislation I have offered that says you could lose
your SCAAP funding, which isn't a lot of money, but lose that
funding if you have an overt policy against enforcing or
coordinating with INS, what about these sanctuary cities? I
mean, most people in America don't know there is a sanctuary
city. Can you tell us what the cities you have mentioned and
what it means to be a sanctuary city?
Ms. Malkin. Well, basically, you are creating safe havens,
not just for your garden-variety otherwise law abiding illegal
aliens but for terrorists and criminal aliens, as well, and we
saw that in New York City.
Senator Sessions. The cities don't allow enforcement, or
what is it that makes it--
Ms. Malkin. I talked about the San Jose Police Department
and its policy, and that is not just in police departments but
also in cities, as well. Professor Kobach had mentioned Los
Angeles, where Special Order 40 has been in place for a long
time. A lot of the city employees that I have talked to
basically think of it as a gang order, that they cannot
proactively contact Federal immigration authorities to let them
know if they suspect someone of being an illegal alien.
Senator Sessions. Thank you. Thank you, Mr. Chairman.
Chairman Chambliss. Thank you, and to each of our
witnesses, thank you very much for being here. This has been
very enlightening, been very informative. You folks are the
experts. That is why we have got you here. We value your
opinions very highly, and as we move through this process, we
very likely will be back in touch with you formally or
informally to continue a dialogue.
The record will remain open for 7 days for any additional
statements or materials. This hearing is now adjourned.
[Whereupon, at 4:52 p.m., the Subcommittee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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