<DOC> [109th Congress House Hearings] [From the U.S. Government Printing Office via GPO Access] [DOCID: f:29581.wais] SETTING POST-SEPTEMBER 11TH INVESTIGATIVE PRIORITIES AT THE BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT ======================================================================= HEARING before the SUBCOMMITTEE ON NATIONAL SECURITY, EMERGING THREATS, AND INTERNATIONAL RELATIONS of the COMMITTEE ON GOVERNMENT REFORM HOUSE OF REPRESENTATIVES ONE HUNDRED NINTH CONGRESS SECOND SESSION __________ MARCH 28, 2006 __________ Serial No. 109-170 __________ Printed for the use of the Committee on Government Reform Available via the World Wide Web: http://www.gpoaccess.gov/congress/ index.html http://www.house.gov/reform _____ U.S. GOVERNMENT PRINTING OFFICE WASHINGTON : 2006 29-581 PDF For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800 Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001 COMMITTEE ON GOVERNMENT REFORM TOM DAVIS, Virginia, Chairman CHRISTOPHER SHAYS, Connecticut HENRY A. WAXMAN, California DAN BURTON, Indiana TOM LANTOS, California ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania GIL GUTKNECHT, Minnesota CAROLYN B. MALONEY, New York MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio TODD RUSSELL PLATTS, Pennsylvania DANNY K. DAVIS, Illinois CHRIS CANNON, Utah WM. LACY CLAY, Missouri JOHN J. DUNCAN, Jr., Tennessee DIANE E. WATSON, California CANDICE S. MILLER, Michigan STEPHEN F. LYNCH, Massachusetts MICHAEL R. TURNER, Ohio CHRIS VAN HOLLEN, Maryland DARRELL E. ISSA, California LINDA T. SANCHEZ, California JON C. PORTER, Nevada C.A. DUTCH RUPPERSBERGER, Maryland KENNY MARCHANT, Texas BRIAN HIGGINS, New York LYNN A. WESTMORELAND, Georgia ELEANOR HOLMES NORTON, District of PATRICK T. McHENRY, North Carolina Columbia CHARLES W. DENT, Pennsylvania ------ VIRGINIA FOXX, North Carolina BERNARD SANDERS, Vermont JEAN SCHMIDT, Ohio (Independent) ------ ------ David Marin, Staff Director Teresa Austin, Chief Clerk Phil Barnett, Minority Chief of Staff/Chief Counsel Subcommittee on National Security, Emerging Threats, and International Relations CHRISTOPHER SHAYS, Connecticut, Chairman KENNY MARCHANT, Texas DENNIS J. KUCINICH, Ohio DAN BURTON, Indiana TOM LANTOS, California ILEANA ROS-LEHTINEN, Florida BERNARD SANDERS, Vermont JOHN M. McHUGH, New York CAROLYN B. MALONEY, New York STEVEN C. LaTOURETTE, Ohio CHRIS VAN HOLLEN, Maryland TODD RUSSELL PLATTS, Pennsylvania LINDA T. SANCHEZ, California JOHN J. DUNCAN, Jr., Tennessee C.A. DUTCH RUPPERSBERGER, Maryland MICHAEL R. TURNER, Ohio STEPHEN F. LYNCH, Massachusetts JON C. PORTER, Nevada BRIAN HIGGINS, New York CHARLES W. DENT, Pennsylvania Ex Officio TOM DAVIS, Virginia HENRY A. WAXMAN, California Lawrence J. Halloran, Staff Director and Counsel Elizabeth Daniel, Professional Staff Member Robert A. Briggs, Clerk Andrew Su, Minority Professional Staff Member C O N T E N T S ---------- Page Hearing held on March 28, 2006................................... 1 Statement of: Ryan, Joseph F., Ph.D., Chairperson, Department of Criminal Justice and Sociology, PACE University; Caroline Fredrickson, director, Washington Legislative Office, American Civil Liberties Union; and Joseph R. Webber, Special Agent in Charge (retired), Bureau of Immigration and Customs Enforcement, U.S. Department of Homeland Security................................................... 74 Fredrickson, Caroline.................................... 99 Ryan, Joseph F........................................... 74 Webber, Joseph R......................................... 109 Stana, Richard M., Director, Homeland Security and Justice Issues, U.S. Government Accountability Office; Richard L. Skinner, Inspector General, U.S. Department of Homeland Security; and Robert A. Schoch, Deputy Assistant Director, National Security Division, Office of Investigations, U.S. Immigration and Customs Enforcement, Department of Homeland Security................................................... 10 Schoch, Robert A......................................... 43 Skinner, Richard L....................................... 33 Stana, Richard M......................................... 10 Letters, statements, etc., submitted for the record by: Fredrickson, Caroline, director, Washington Legislative Office, American Civil Liberties Union, prepared statement of......................................................... 102 Kucinich, Hon. Dennis J., a Representative in Congress from the State of Ohio, March 28, 2006 article.................. 6 Ryan, Joseph F., Ph.D., Chairperson, Department of Criminal Justice and Sociology, PACE University, prepared statement of......................................................... 77 Schoch, Robert A., Deputy Assistant Director, National Security Division, Office of Investigations, U.S. Immigration and Customs Enforcement, Department of Homeland Security: July 30, 2004 memorandum................................. 64 Prepared statement of.................................... 45 Shays, Hon. Christopher, a Representative in Congress from the State of Connecticut, prepared statement of............ 3 Skinner, Richard L., Inspector General, U.S. Department of Homeland Security, prepared statement of................... 35 Stana, Richard M., Director, Homeland Security and Justice Issues, U.S. Government Accountability Office, prepared statement of............................................... 12 Webber, Joseph R., Special Agent in Charge (retired), Bureau of Immigration and Customs Enforcement, U.S. Department of Homeland Security, prepared statement of................... 113 SETTING POST-SEPTEMBER 11TH INVESTIGATIVE PRIORITIES AT THE BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT ---------- TUESDAY, MARCH 28, 2006 House of Representatives, Subcommittee on National Security, Emerging Threats, and International Relations, Committee on Government Reform, Washington, DC. The subcommittee met, pursuant to notice, at 2:05 p.m., in room 2247, Rayburn House Office Building, Hon. Chris Shays (chairman of the subcommittee) presiding. Present: Representatives Shays, Platts, Kucinich, and Van Hollen. Staff present: Lawrence Halloran, staff director and counsel; Robert A. Briggs, analyst; Marc LaRoche, intern; Elizabeth Daniel, professional staff member; Andrew Su, minority professional staff member; Earley Green, minority chief clerk; and Jean Gosa, minority assistant clerk. Mr. Shays. A quorum being present, the Subcommittee on National Security, Emerging Threats, and International Relations hearing entitled, ``Setting Post-September 11th Investigative Priorities at the Bureau of Immigration and Customs Enforcement'' is called to order. Homeland security will never be about certainties. It will always be about probabilities, about risks and about choices. Which cargo containers to inspect? Which air baggage to screen? Or, as we ask today, who among the estimated 12 million non- citizens illegally residing within our borders should the Department of Homeland Security [DHS], choose to pursue? In creating the Department of Homeland Security, the goal was to consolidate previously dispersed security functions to gain the seamlessness and synergies needed to confront post- September 11th threats. The DHS Bureau of Immigration and Customs Enforcement [ICE], brought under one bureaucratic roof for the first time the interior enforcement functions of Immigration and Naturalization Service, formerly part of the Department of Justice, and the investigative arm of the Treasury Department's U.S. Customs Service. The merger doubled the number of agents available to secure the homeland against those who would exploit our openness and hospitality. But in 2004, we learned that suspected terrorists, who entered the country on revoked visas, were not being consistently tracked or removed. Cumbersome, reactive processes at ICE raised questions about how the bureau sets investigative priorities to meet new threats to national security. At our request, the Government Accountability Office [GAO], examined how the ICE Office of Investigations is organized, how risks are evaluated and how the Department's largest investigative force allocates resources against a diverse, changing mission portfolio. GAO found inherited structures and missions still tend to dominate ICE enforcement activities. Only a small percentage of investigative resources are focused on national security cases. Even that nexus to national security is often passively imputed to legacy lines of businesses, like munitions violations and illegal exports, rather than being driven by a proactive effort to target vulnerabilities. Drugs, financial crimes, general immigration violations, smuggling, human trafficking, document fraud and worksite enforcement draw the bulk of ICE attention. These are important missions, but the challenge remains to incorporate a variety of inherited mandates into a coherent strategy based on clear-eyed risk assessment. Under that strategy, ICE should actively probe for systemic weaknesses that could be exploited to our detriment. We have to assume the terrorists are doing the same. GAO did find some evidence national security risks are beginning to drive investigative priorities. While the bureau has authority to look into any employer suspected of hiring illegal aliens, ICE investigators have been instructed to focus their attention on critical infrastructure sites. Recent actions against non-citizens found working at nuclear facilities and defense plants demonstrate the effective fusion of the immigration and security missions. Still, the effort to achieve the symbiosis more broadly and consistently presents profound challenges. Old field structures may not serve new missions. Traditional law enforcement methods do not always measure tangible outcomes against changing threats. Like sand in the gears, some cases still trigger bureaucratic turf battles and clog interagency communication and cooperation channels between ICE and other investigative forces inside and outside DHS. Miscast investigative priorities can appear to target enforcement activity arbitrarily or inappropriately on persons who pose little real threat to our security. These issues will be addressed by two panels of witnesses who bring expertise, experience and insight to our discussion. We are grateful for their time and we look forward to their testimony. [The prepared statement of Hon. Christopher Shays follows:] [GRAPHIC] [TIFF OMITTED] T9581.001 [GRAPHIC] [TIFF OMITTED] T9581.002 Mr. Shays. At this time, the Chair would recognize our distinguished ranking member, Mr. Kucinich. Mr. Kucinich. First of all, I want to thank the Chair for holding this hearing. I want to thank each and every one of you who has made a career of serving our government, who is dedicated to the service of the people. And I say that because I don't want you to take anything I am about to say personally. When the Department of Homeland Security was formed, I didn't even like the name of it, because I thought the name of it had a whiff of something that wasn't particularly democratic. When the Department of Homeland Security was formed I predicted that it would take 10 years at least before anyone would know how to integrate all the parts. In their various constituent members, before the Department of Homeland Security, a lot of these various departments were doing a pretty good job. And the creation of the Department itself-- this really--I mean we could take this discussion to a whole different level, which was that trip necessary? Can you really create a functional working Department of Homeland Security within the mandate of the legislation a few years ago. But inasmuch as this is where we are, even though the Department's 3 years-old, its structure, missions, character, still in progress. At the macro and micro levels of DHS, there's still much confusion; much excess needs to be cut; overlap and duplication needs to be eliminated. Management reform urgently needed. The consequences of this poor organization are great, even though it was predictable. In 3 short years on the job, we've seen all kinds of problems from the ambiguous color-coded terrorist threat warnings, for the media consumption scare the hell out of the American people. It reflects on the Department. People get mad at the DHS, when really it was some PR guy working for the White House, who tried to force this through implementation at the Department level. You see the people loosing confidence in the system already with the Homeland Security getting blamed for evacuation, rescue, recovery efforts during Hurricanes Katrina and Rita. I mean think about it. What we've done is create a system that is guaranteed to not work. And we're blaming the people who run it, when the system wasn't going to work in the first place. We hear now interagency communication needs to be improved; right. An article in today's New York Times illustrates how undercover GAO testers slipped radioactive materials over two points to the U.S. border. The Border Patrol agents stopped the testers; asked for their licenses, issued by the NRC. It couldn't verify with the NRC whether or not their licenses were valid or fraudulent. In fact, the testers had forged licenses. They were allowed to pass through anyway. If there had been effective communication, this wouldn't have happened. [The information referred to follows:] [GRAPHIC] [TIFF OMITTED] T9581.003 [GRAPHIC] [TIFF OMITTED] T9581.004 Mr. Kucinich. Now, I wonder in the old--before the Department of Homeland Security was formed, if in the formation of this Department, we have actually impeded the communication between the various constituent elements. Now, the next national disaster, whether it is man made or natural when we created a department of Washington bureaucrats who are forced to bicker with each other. It's inevitably the American people pay the price. Now, under DHS, the new immigration and customs enforcement missions prevent acts of terrorists by targeting the people, money, and materials that support terrorist and criminal activities. And this organization, which is the largest investigative arm of the Department, is responsible for identifying and shutting down vulnerabilities in the Nation's border, and the economic transportation and infrastructure security. That's according to the Web site. A GAO study found that 13 percent of ICE's investigations concerned with national security--the remaining investigations were related to narcotics, financial crimes, general alien investigations. Now are these numbers surprising? Are the numbers proportionate to the threats ICE should be investigating? How much more does ICE investigate threats of terrorism than previous customs service and INS? Are there border-related crimes, like drug smuggling, for example, being crowded out by this new organization? If they are crowded out by ICE's new priorities, then whose handling them? Are they being handled adequately? I mean ICE has an enormous job, and our country has many vulnerabilities. I would like to highlight one such vulnerability as a case in point. There's an illegal tunnel that starts in Brazil and ends in the United States, an illegal product: Brazilian pig iron made with slave labor is channeled through this tunnel on a regular basis. It has been happening for years, and ICE knows about it. Oh, well, ICE tells the Congressman, it has supposedly been investigating the case in Brazil since 2004. No progress has been made since then. From July 2004 to May 2005 not a single ICE investigator has visited the Piaui region of Brazil where the slave made pig iron is produced. I have written ICE and the Customs Border Protection numerous times, to inquire about this investigation; never got a response. I can understand. I mean they are just so busy trying to figure out how to work. The job isn't getting done. When American minors are put out of work because they are forced to grossly and unfairly compete with slave labor, I would say this is an economic vulnerability, not to mention when ICE isn't doing its job investigating slave labor allegations. We aren't able to enforce their law, which prohibits the importation of products made with slave labor. The President calls for a 6-percent increase in the DHS budget, including a 21 percent increase in funding for ICE. I want to know exactly how this money is going to be used. How is it going to improve DHS and ICE's ability to address our country's many significant vulnerabilities and get the job done. The taxpayers deserve to know if they are getting their money's worth. So I hope, Mr. Chairman, the hearing, which I appreciate that you have called, will be able to address some of these issues. I want to thank the GAO and Inspector Skinner for their work. I look forward to the results of this hearing, and again, I wasn't for it at the beginning. Thanks. Mr. Shays. Thank you very much. Just while the gentleman is here, I would just want to put on the record, because I will be saying it when he is not here, I think the Department makes a tremendous amount of sense. We just want it to work right. We want to be able to maximize the people who can work in this area, and I think it made sense to see that combination. We just want to make sure it is going to work the way we intended it. So at this time, before the gentleman leaves, I ask unanimous consent that all members of the subcommittee be permitted to place an opening statement in the record, and the record will remain open for 3 days for that purpose. And without objection, so ordered. I ask further unanimous consent that all Members be permitted to include their written statement in the record. Without objection, so ordered. At this time, the Chair would recognize Mr. Richard M. Stana, Director, Homeland Security and Justice Issues, U.S. Government Accountability Office; Mr. Richard L. Skinner, Inspector General, U.S. Department of Homeland Security, and Mr. Robert Schoch, am I pronouncing the name correctly? Mr. Schoch. You are, sir. Mr. Shays. Thank you. Deputy Assistant Director, National Security Division, ICE Office of Investigations, U.S. Department of Homeland Security. So we have a great panel here. I'd ask you for all three of you to stand. If there is anyone who might respond with you, you know, you might call on them, rather than my swearing them in later, if they would raise their hand and stand as well. Is there anyone that you would like possibly have join you? OK. You guys are on your own. [Witnesses sworn.] Mr. Shays. Note for the record our witnesses have responded in the affirmative. I'm talking a little softly. I think it is having a hearing after lunch, but I want you guys to really make sure I stay awake, so speak loudly and forcefully and with passion and conviction and all of that. Mr. Stana, am I pronouncing your name correct? Mr. Stana. Yes. Mr. Shays. Great. Mr. Stana. Stana. Mr. Shays. Nice to have you here. Mr. Stana. Thank you. Mr. Shays. Now, I am going to do one thing: I am going to adjust my chair. I am either going to shoot down low, and I don't want anyone to laugh, but my chair is leaning backward. So excuse me a second. OK. Still stinks, but here we go. Mr. Stana, you have the floor. STATEMENTS OF RICHARD M. STANA, DIRECTOR, HOMELAND SECURITY AND JUSTICE ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE; RICHARD L. SKINNER, INSPECTOR GENERAL, U.S. DEPARTMENT OF HOMELAND SECURITY; AND ROBERT A. SCHOCH, DEPUTY ASSISTANT DIRECTOR, NATIONAL SECURITY DIVISION, OFFICE OF INVESTIGATIONS, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, DEPARTMENT OF HOMELAND SECURITY STATEMENT OF RICHARD M. STANA Mr. Stana. Thank you. Chairman Shays and members of the subcommittee. I am pleased to be here today to discuss how ICE allocates its investigative resources. The events of September 11th demonstrated that terrorists can exploit vulnerabilities in our border control and internal enforcement systems to enable their criminal deeds. ICE's mission is to prevent terrorist attacks within the United States, and reduce our vulnerability to terrorism while ensuring its mandated customs, immigration, and Federal protective enforcement functions are not diminished. My prepared statement today is based on a report we did for this subcommittee on how ICE's Office of Investigations has structured itself and used its 5,600 investigators to perform its missions and address vulnerabilities. In my oral statement, I would like to focus on three main points: First, OI's investigative activities and organizational structures largely reflect those of legacy Customs and INS. For the most part, OI has the same authority and is doing the kinds of investigations that Customs and INS did, although it seeks to focus on investigations that might have an impact on national security. For example, in investigating employers that might have violated laws that regulate alien employment in the workplace, it is focusing on employers at critical infrastructure sites rather than on employers that historically employed large numbers of unauthorized workers. As for OI's field structure, it was created by merging the existing customs and INS field offices located in cities near major ports of entry, high volume smuggling corridors, proximity to State and Federal prisons, and significant money laundering infrastructure. OI recognizes that its field structure is geared more toward legacy missions and not ideally matched to the new DHS mission, but budget constraints have limited large-scale relocations of offices and investigators. My second point is that although there is no firm standard for how OI should distribute its investigative resources, a large majority of its caseload did not have a direct nexus to national security. About 10 to 15 percent of OI's investigative resources was devoted to investigations that it has identified as national security related. There is some question as to how many of these were actually national security related. On the other hand, over half was devoted to legacy mission investigations involving drugs, financial crime, or general alien issues. Reasons for this distribution include the sources and types of leads that OI receives, its budgetary commitment to drug investigations, and legacy mission functions and expertise. For example, OI receives funding to support the President's National Drug Control Strategy, and has continued the legacy Customs practice of responding to violations relating to drug seizures at ports of entry. As a second example, OI continues to perform the legacy INS practice of identifying aliens incarcerated in prisons and jails who are eligible for removal from the United States. My final point is that OI lacks several key elements that could help it better insure that it focuses its limited resources on the greatest potential vulnerabilities. OI has taken some initial steps to introduce risk management into its operations, in part, by giving priority to leads with a potential impact on national security. However, OI has not conducted a comprehensive risk assessment to determine what types of violations present the greatest risks for exploitation by terrorists and other criminals. Such an assessment could help OI prioritize its efforts and direct its resources toward those investigations that address the most significant vulnerabilities. We also found that OI had not yet developed outcome-based performance measures. Such measures would provide a basis for gauging effectiveness and identifying areas for improvement. We also found that OI did not have sufficient monitoring and communications systems to help ensure that the potential vulnerabilities it uncovers are fixed by the agencies and private partners that manage affected programs. For example, we recently found that at the end of Immigration Benefit Fraud investigations, OI was not always notifying U.S. citizenship and immigration services personnel about potential systemic vulnerabilities in their adjudication process. Such information could help U.S. CIS decide what policy and procedural changes may be needed to address the vulnerabilities. We made recommendations to the Assistant Secretary for ICE to take specific actions related to risk management and performance measurement, as well as monitoring and communicating significant vulnerabilities to other agencies. In closing, as DHS' primary investigative agency, OI can play a critical role in our Nation's effort to reduce our vulnerability to a terrorist attack or criminal operation. While OI states that it places priority on national security, cases considered to be directly related to national security have consumed a relatively small portion of OI resources. Applying additional risk management principles, such as conducing a more comprehensive risk assessment to identify the most significant vulnerabilities, developing better performance measures, and enhancing its monitoring and communication activities could better ensure that OI directs its finite resources to areas of highest priority. Mr. Chairman, this concludes my statement, and I would be happy to answer any questions that you or other members of the subcommittee may have. [The prepared statement of Mr. Stana follows:] [GRAPHIC] [TIFF OMITTED] T9581.005 [GRAPHIC] [TIFF OMITTED] T9581.006 [GRAPHIC] [TIFF OMITTED] T9581.007 [GRAPHIC] [TIFF OMITTED] T9581.008 [GRAPHIC] [TIFF OMITTED] T9581.009 [GRAPHIC] [TIFF OMITTED] T9581.010 [GRAPHIC] [TIFF OMITTED] T9581.011 [GRAPHIC] [TIFF OMITTED] T9581.012 [GRAPHIC] [TIFF OMITTED] T9581.013 [GRAPHIC] [TIFF OMITTED] T9581.014 [GRAPHIC] [TIFF OMITTED] T9581.015 [GRAPHIC] [TIFF OMITTED] T9581.016 [GRAPHIC] [TIFF OMITTED] T9581.017 [GRAPHIC] [TIFF OMITTED] T9581.018 [GRAPHIC] [TIFF OMITTED] T9581.019 [GRAPHIC] [TIFF OMITTED] T9581.020 [GRAPHIC] [TIFF OMITTED] T9581.021 [GRAPHIC] [TIFF OMITTED] T9581.022 [GRAPHIC] [TIFF OMITTED] T9581.023 [GRAPHIC] [TIFF OMITTED] T9581.024 [GRAPHIC] [TIFF OMITTED] T9581.025 Mr. Shays. Thank you, Mr. Stana. Mr. Skinner. STATEMENT OF RICHARD L. SKINNER Mr. Skinner. Mr. Chairman, members of the subcommittee, thank you for having me here today. I will focus my remarks on the results of our assessment of the proposal to merge Customs and Border Protection [CBP], and Immigration and Customs Enforcement [ICE]. We issued a report on this subject in November 2005. The objective of our review was to determine the extent of CBP and ICE coordination problems, and whether a merger of the two organizations would solve those problems. We interviewed more than 600 individuals from public, private, and non-profit sectors in 10 cities across the country and at 63 CPB and ICE facilities. Since neither CPB nor ICE was given responsibility for the full scope of enforcement activities and because they both rely heavily on each other for assistance, it is imperative that they coordinate very closely. However, as illustrated in our report, CBP and ICE were not coordinating their efforts in an effective manner. We made 14 recommendations aimed at improving coordination and integrating operations. We identified coordination challenges that affected apprehension, detection, and removal operations; investigation and investigative operations; and intelligence activities. With respect to apprehension, detention, and removal operations, organizational priorities have undercut coordination between CPB's alien apprehension efforts and ICE's detention and removal efforts. The failure to coordinate interagency planning and budgetary processes has contributed to a resource imbalance. CBP's front-end apprehension capabilities grew, and ICE's downstream detention and removal capabilities did not. This imbalance placed a strain on ICE's detention and removal resources and reduced the impact of CBP's alien apprehension. With regards to investigations, the separation of enforcement functions between CPB and ICE hampered the coordination of interdiction and investigative efforts. Now that inspections and investigations are in separate organizations, ICE does not accept as many cases or case referrals from CPB. Likewise, CBP relies less on ICE to investigate the violations it uncovers. Due to the decline of ICE's acceptance rate, CPB has reportedly referring more cases to other law enforcement authorities, such as the Drug Enforcement Administration, without first notifying ICE. Also, in the past, investigators and inspectors often develop referrals jointly. Now many of these referrals reportedly never get to an ICE investigator. Instead, CBP is now using its own investigative resources to investigate many cases. Unless there is very close cooperation and coordination, the use of internal CBP investigative resources could adversely impact ICE's investigative activities even further. Finally, with regard to intelligence activities, although CBP and ICE intelligence requirements overlap, coordination between the two is limited. Both CBP and ICE require intelligence gathering regarding illegal aliens, criminal aliens, alien smuggling, drug trafficking, fraudulent travel documents, and import and export violations. Despite their shared intelligence needs, however, the two organizations have separate intelligence structures and products. Because the intelligence collection and analysis activities of CBP and ICE are uncoordinated, it is difficult for intelligence analysts to connect the dots to create a comprehensive threat assessment for border security. In conclusion, to resolve the coordination problems, we were prepared to recommend that ICE and CPB be merged. While we were conducting our review, however, the Secretary, after conducting his own review of the Department's operational and organizational structure, announced six new imperatives. One of the imperatives was to strengthen border security and in interior enforcement through an integrated mix of additional staff, new technology, and enhanced infrastructure investment. Since the issuance of our report in November 2005, DHS dismantled the Border and Transportation Security Directorate. CBP and ICE now report directly to the Office of the Secretary. That created among other things the Secure Border Initiative, the ICE-CBP Coordination Council, and the Office of Intelligence and Analysis. These efforts are intended to address some of the coordination issues that we identified in our report and to help better integrate CBP and ICE operations. From what we know, of these emerging efforts, we believe that the Department is taking the necessary steps to addressing the coordination problems. However, these steps are still works in progress. We have not yet had the opportunity to assess whether the actions taken or proposed actually have been or will be effective in improving coordination between CPB and ICE. Because the issues are so important, however, we have pledged to Congress that we would followup to determine how well the Department has progressed since our November 2005 report. We expect to start early this summer. Mr. Chairman, members of the subcommittee, that concludes my remarks. I will be happy to answer any questions you may have. [The prepared statement of Mr. Skinner follows:] [GRAPHIC] [TIFF OMITTED] T9581.026 [GRAPHIC] [TIFF OMITTED] T9581.027 [GRAPHIC] [TIFF OMITTED] T9581.028 [GRAPHIC] [TIFF OMITTED] T9581.029 [GRAPHIC] [TIFF OMITTED] T9581.030 [GRAPHIC] [TIFF OMITTED] T9581.031 [GRAPHIC] [TIFF OMITTED] T9581.032 [GRAPHIC] [TIFF OMITTED] T9581.033 Mr. Shays. Thank you, Mr. Skinner. Mr. Schoch. STATEMENT OF ROBERT A. SCHOCH Mr. Schoch. Chairman Shays and distinguished members of the subcommittee, it is an honor for me appear before you today to discuss how the men and women of the U.S. Immigration and Customs Enforcement [ICE], protect the American people by identifying and closing critical border, homeland, and other national security vulnerabilities. Among the Department of Homeland Security law enforcement agencies, ICE has the most expansive investigative authorities and the largest force of investigators. Our mission is to protect the American people by combating terrorists and other criminals who seek to exploit our Nation's borders and threaten us here at home. By leveraging the full enforcement potential provided by our unique unified blend of customs and immigration authorities, ICE agents and officers are making it more difficult for potential terrorists and transnational criminal groups to move themselves, their supporters, or their weapons across the Nation's borders through traditional human, drug, contraband, or financial smuggling networks, routes and methods. As a result, ICE contributes to our national security. Protecting national security is at the heart of ICE's work, operations, and mission. ICE seeks to identify and close vulnerabilities in our immigration and customs system before they can be exploited by potential terrorists. To illustrate ICE's national security work, I'd like to quickly share two representative cases with you. First, in January 2006, based on information developed by the ICE special agent in charge in San Diego, along with the operational alliance tunnel task force, we discovered a highly sophisticated cross border tunnel that extended nearly a half mile, from a warehouse in Tijuana, Mexico, into a warehouse in Otai Mesa, CA. Equipped with lighting, ventilation, cement floor, this tunnel was designed to support drug smuggling. Substantial criminal proceeds were invested in this tunnel, which reached a depth in some areas of 81 feet to avoid detection. This tunnel carried significant national security implications due to its potential use to support illegal and covert entry of persons or weapons into the United States. Another example: In June 2004, ICE special agents in New Orleans initiated an investigation into smuggling activities by passengers and crew members of cruise ships arriving at the Port of New Orleans. During the course of the investigation, we identified two individuals, Cedric Carpenter and Lamont Ranson, U.S. citizens, one a former member of the military, as being involved in drug smuggling, distribution activities, as well as the manufacture and sale of false documents. Through consensually monitored telephone calls, and meetings with ICE confidential informants, Carpenter and Ranson actually agreed to provide false birth certificates, Social Security cards, driver's licenses for individuals they believed to be members of Abu Sayyaf, a State Department designated foreign terrorist organization with ties to Al Qaeda. In addition, Carpenter and Ranson believed that these individuals that they were to provide the fraudulent documents to were on U.S. watch lists. These traditional criminal investigations are a few examples that demonstrate how ICE contributes to our national security by identifying and closing vulnerabilities that could potentially be exploited by terrorists. In June 2003, the Office of Investigation launched an intensive effort to strengthen existing and, where necessary, develop new programs aimed directly at closing the vulnerabilities exploited by the September 11th conspirators. The 9/11 Commission found in its final report that had the immigration system set a higher bar for determining whether individuals are who or what they claim to be and ensuring routine consequences for violations, it could have excluded, removed, or come into further contact with several of the hijackers who did not meet the terms of their admitting short- term visitors. Some examples are ICE national security division's compliance enforcement unit, which has now processed over 350,000 leads for review for potential investigations in the field for violations in the student violators. The Office of Investigations' Benefit Fraud Units work closely in coordination with the U.S. Citizenship and Immigration Services to protect the integrity of the legal immigration system by identifying fraudulent applications, systemic vulnerabilities, and fraud trends. When applications, fraudulent applications and trends are identified, this information is passed to the SAC offices for further investigation and prosecution. The Office of Investigation created a visa security program, which provides critical law enforcement and investigative expertise to our consular officers in several overseas posts. ICE routinely conducts comprehensive threat, vulnerability, and consequence risk assessments of the customs and immigration systems to determine optimal application of resources. In addition to all of our 26 special agent in charge offices having conducted their own internal risk assessment, threat assessment, headquarters Office of Investigation staff has coordinated assessments in a variety of areas to enhance our national security. Threat assessments relate to financial crimes, identity benefit fraud, and the illegal export of arms and strategic technology. The results of these assessments are driving and shifting investigative resources within the SAC offices, and expanding existing certified undercover operations, as well as assisting the field offices in identifying new and emerging threats and vulnerabilities within their respective areas of responsibility. These risk assessments serve as a foundation in the creation of outcome-based performance goals and measurement tools to assess the degree in which ICE is able to fill its mission relative to identified threats. My colleagues at ICE are grateful for the chance, and I am grateful for the chance to serve the American people, and on their behalf I thank you for your continued support of our ongoing operations. I would be pleased to answer any of your questions. [The prepared statement of Mr. Schoch follows:] [GRAPHIC] [TIFF OMITTED] T9581.034 [GRAPHIC] [TIFF OMITTED] T9581.035 [GRAPHIC] [TIFF OMITTED] T9581.036 [GRAPHIC] [TIFF OMITTED] T9581.037 [GRAPHIC] [TIFF OMITTED] T9581.038 [GRAPHIC] [TIFF OMITTED] T9581.039 [GRAPHIC] [TIFF OMITTED] T9581.040 [GRAPHIC] [TIFF OMITTED] T9581.041 [GRAPHIC] [TIFF OMITTED] T9581.042 [GRAPHIC] [TIFF OMITTED] T9581.043 [GRAPHIC] [TIFF OMITTED] T9581.044 [GRAPHIC] [TIFF OMITTED] T9581.045 [GRAPHIC] [TIFF OMITTED] T9581.046 Mr. Shays. Thank you. I'm going to start by having Mr. Van Hollen ask the first questions. Mr. Van Hollen. Well, thank you, Mr. Chairman. Thank all of you for your testimony this afternoon. Let me begin with Mr. Schoch, if I may, because you heard the testimony of the other gentlemen. You've seen the GAO report. You've seen the criticism that there's been lack of cooperation between, you know, Customs and Border Patrol on the one hand and ICE on the other, and we all know in this committee under the leadership of our chairman, Mr. Shays, has and the 9/11 Commission review obviously identified this lack of information sharing as one of the problems our country faced leading up to September 11th. That was throughout the whole government, and here we have reports that say there's not even adequate coordination and information sharing between two, you know, agencies within the same department that was created after September 11th with the express purpose of trying to improve coordination, and so it's an alarming report, and analysis, and I would just--I wonder No. 1, do you agree with their analysis, and No. 2, if so, what recommendations--what steps are you taking to make changes? Mr. Schoch. Not necessarily agree with their analysis. Let me speak to a few things. I have been leading in the National Security Division at ICE within the Office of the Investigations. Specifically, my counterparts at CBP in the Office of Anti-Terrorism have a number of efforts that we are doing to coordinate our operations to make sure that we are, you know, absolute harmony. One is we staff the National Targeting Center that CPB runs, and we actually have ICE agents 24/7 operating there to make sure that any identifiable issue that is raised in the field all comes through there, and we are able to coordinate. We actually have a working group. We meet monthly with my counterpart within the Office of Anti-Terrorism. We have working groups to look at information sharing. We have come up with protocols to deal with threat information and coordinating those, you know, systematically, synchronizing what responses we have. There are a number of efforts that ICE and CBP together are making to try to harmonize our efforts. Mr. Van Hollen. Right. Now, were these efforts in place before the report done by the GAO and the Inspector General's office or do they predate that or are they responses to it? Mr. Schoch. A number of their recommendations have been looked at, and I know, for example, coordination council are in effect, but a number of these things myself we have been doing for as long as ICE and CBP have been two separate agencies within the Department. So these are ongoing efforts that we have been making, and I have personally been involved with. Mr. Van Hollen. Well, putting aside the recommendation to merge the two agencies, because, as was mentioned, the Secretary Chertoff's own reorganization plan may have made that particular recommendation moot, although I could still see how you could merge the two down the road. I'm not sure, but anyway, with the exception of that, are there any of the recommendations that have been raised by either of the other gentlemen to your right that you do not intend to implement? Mr. Schoch. Let me talk specifically about the GAO report on our priorities. I think we actually, and I have been a part of the number of GAO audits and investigations if you will, and we find a lot of value in them, and I think this is the case here. Some of their recommendations to look at potentially a system, for example, on communicating back vulnerabilities, looking at better risk management--more comprehensive, while we are doing several threat assessment, risk assessment, they have made several findings that we actually looked at and willingly are going to be trying to look at some different changes. For example, the data that they used to come up with the percentages they are using on national security, while we respect how they arrived at that, I disagree with the amount of resources we are putting, as it almost characterizes it as a small percentage when I would argue that everything that ICE almost is doing is in an effort to make sure that we do not ever relive a September 11th type event. So there are a number of great recommendations that we are looking at. Mr. Van Hollen. Are there any that they have proposed that you do not intend to implement? Mr. Schoch. I am more familiar with the specificity in the GAO. I looked at all of those, and I think we are evaluating those, and look at those favorably. In the merger document, I am not too familiar. I would have to look at those, and I know a lot of those come up to the department level. Mr. Van Hollen. OK. Thank you. If our other witnesses could just respond to. Mr. Stana. Well, I will start, since we talked about the GAO report. I think the kinds of things that Bob Schoch mentioned are on target. I think you do want to create the mechanisms and the cross walks between organizational structures so that you can coordinate more closely. I would also say at the same time, though, sadly, this is nothing new between ICE and CBP. We have been looking at coordination issues for years, and I know the legacy INS this was a constant problem, even when the people were standing side by side at the different booths at the ports of entry. INS would put three people out. Customs would say, well, if you are only putting three out, I am only putting three out at some ports of entry. So this is nothing that is new or that was brought on by ICE. I would say this about the merger issue, though. Usually when organizations have mergers or they move the boxes around the organizational tree, it is most successful when it is done for one of two reasons: either your strategic plan has changed or your mission has been redefined. If you are moving the boxes around the organizational tree to handle basic management issues, like coordination, lack of guidance, training, information systems, financial systems are not working right. You are trying to move boxes around to fix management problems and that doesn't work. In the 1990's, INS did that three times and it got to the point where the agents in the field didn't know which guidance was operational anymore, because they were constantly reorganizing. So my suggestion would be if ICE needs anything, it is stability for a period of time and leadership and now with Julie Myers in charge and we are going to have a new Customs Commissioner shortly, there is an excellent opportunity now to bring good management and leadership to bear to break down some of these coordination problems. Mr. Van Hollen. Thank you. Mr. Skinner, do you have any response? Mr. Skinner. Yes. I could say that the communications with the Deputy Secretary and as late as last night, and with Julie Myers and people in CBP, they have, in fact, agreed with all. We made 14 recommendations. They have agreed with all 14 recommendations. In many cases, they have claimed that they have already completed action on some of these recommendations. For example, the creation of a CBP-ICE Coordination Council. We haven't had the opportunity to see if, in fact, the implementation of the recommendations have had a profound impact or the desired result, and that is something we are going to do this summer. Mr. Van Hollen. Right. Mr. Skinner. But as far as agreeing with our recommendations and taking actions, yes, they have. Mr. Van Hollen. OK. Thank you for your testimony. Mr. Shays. Thank you. I am going to thank the gentleman and if he wants to interrupt the counsel, the counsel is going to be asking some questions, and feel free just to jump in if the gentleman would like to. Mr. Halloran. Thank you. Good afternoon. Mr. Stana. Good afternoon. Mr. Halloran. Mr. Stana, in your testimony, you cite as an ICE mission to protect national security without diminishing the legacy missions. Is that realistic given the diversity of that portfolio and is it the same question--is it true to say that some or if not all of those legacy missions could consume almost all the investigative resources? Mr. Stana. You know they have a large number of missions, as you know, and it is difficult to spread 5,600 investigators across all of those missions and keep everyone happy and all of them well staffed. But it is like any agency that has fewer people than it has missions: You have to pick and choose. Mr. Schoch is in charge of the National Security, and that is where the 10 to 15 percent of investigative resources that go to the most directly linked to national security investigations are done. And that is a good thing. Now, within that, maybe not all of them have a direct link at the end of the day, when the results are in, but at least, as far as the subject matter goes, it does seem to comport with the overall mission of DHS. It is the 85 to 90 percent that are in other areas that I would take issue with in some cases the necessity to keep pursuing at the same level we are pursuing, given that you have finite resources. For example, well over half of the total investigative cases that OI does are related to Class III drug investigations. Class III, these are the least important drug investigations. Do we need to do them all? Should they respond to every port call that CBP makes to come and investigate some sort of a seizure that they make. Perhaps this is part of the coordination problem that Mr. Skinner mentioned. They are not going to respond to every case. They are going to respond to the most important cases, as they should. So, I would suggest that there is some room to reallocate resources, but not to neglect every mission or any particular mission. Mr. Halloran. Right. To what extent would you say that imbalance you cite is function of structure; that they say at over at DOD if all you have is a hammer, everything looks like a nail. If your office is next to the port and that is your bread and butter business, as long as you are there, isn't that what you're going to do? Mr. Stana. Well, there is a good deal of that, you know, frankly. If what you have done is drug cases in the San Diego sector for years and years and years, and you are used to calling ICE or its predecessor to come and investigate a case, that is what you are going to do. If you have 10 groups in a district that has done drug investigations for years, that is what you will do. What a comprehensive risk assessment and management tool would do it would help to break out of the mold of doing what you have always done. Mr. Halloran. Thank you. Mr. Skinner, could you talk a little more about the kind of mutuality of ICE, CBP co- dependence. Just walk a case through that process where they have to hand off as oppose to ones they might pursue separately. Mr. Skinner. For example, an interdiction at the port of entry, and car is pulled over and it could be loaded with illegal drugs or likewise--it could even be between ports of entry through our Border Patrol. In those cases, historically, when INS, for example, and Customs, before the reorganization, the inspector would discover the drugs, turn over the--or make the referral to the investigator who then would take the case and run with it. Often times they may even do it jointly. As it stands now, the ICE or the investigators are not always being responsive, and it may go back to the fact that there is a breakdown in risk assessments. CBP, their priorities may be to intercept drugs, whereas ICE now their primary mission has been focused elsewhere, so they are not reacting, so that is creating some type of frustration between the two groups. CBP now in turn is out of frustration are taking these cases as opposed to giving them to the ICE investigator are now giving them to other law enforcement officials, be it the DEA, the Drug Enforcement Administration, or the local police or State police or whoever is most to take the case or whoever is most convenient, and it may not even inform ICE. Mr. Halloran. Are there memoranda of understanding between ICE and CBP as to how some of that might be handled? Mr. Skinner. There are memoranda of understanding, but it is not clear as to whether everyone is, in fact, has a full understanding of what those mean. They are open to interpretation from port to port to port, and our review found out there was extreme frustration, particularly coming from the CBP side that ICE was not being reactive or responsive to their investigative needs. So now, they have gone to other law enforcement agencies. As a matter of fact, they have actually---- Mr. Halloran. Or doing it themselves? Mr. Skinner. Now, they have started a pilot program where they are going to be doing it themselves. This can create problems, because we are not bringing a synergy to the efforts here. If we are looking at national security issues, and if we are breaking it down into stovepipes, we are not able to and collectively see if there is some type of systemic or trend in drug trafficking or human trafficking that which, in fact, could be supporting a terrorist activity. And by not cooperating in this regard, I think is the danger that we face; that we are losing the synergy that could exist here. Mr. Halloran. So, Mr. Schoch, is the Coordinating Council enough? How is that going to break through the kind of cultural barriers that Mr. Skinner just described? Mr. Schoch. I think it is a start first of all. Second, there is clear guidance that is out there to all of our employees about response to the ports and about calls from CBP. For example, I actually put out, and I authored and it was put out by a director, a requirement of 100 percent response to every request from Customs, Border Protection on a watch list hit. Any person entering the United States that hits the watch list comes into a name match, if you will, an ICE agent is mandatory 100 percent response to that. There is clear guidance on that. We respond 100 percent on those, and we invest a lot of man hours into that function, because we fill, you know, the significance of that. Within responses to the drug investigations or a drug interdiction, those investigations often start with the interdiction and a cultivation possibly of a person that was arrested, information they may have, phone numbers they may have. There is a lot of benefit to those responses, and I don't know the specific guidance that is out, but there is clear guidance between both the OFO, the Office of Field Operations, which affects the inspectors, and then the Office of Border Patrol. So there is guidance out there, and issues that may come up, come up through our SACs, come up to the programs--we have an entire program on contraband smuggling that deals with the drug enforcement at ICE headquarters responsible for that. Mr. Halloran. How old is that 100 percent watch list? Mr. Schoch. I would say it goes back over 2 years I believe. Mr. Halloran. That is my point again. Since our hearing on visa revocations, which I think was May or April 2004, since then? Mr. Schoch. It is--I would---- Mr. Halloran. The question is would it capture a visa revocation action at this point almost automatically? Mr. Schoch. Yes. Mr. Halloran. OK. Finally, let me ask Mr. Schoch again, the apparent conflict between the decentralized nature of your operations that your offices are out in the field. You've got a special agent in charge that can drive the investigative priorities, and then you have these headquarters initiatives. Your testimony mentioned the workplace inspection priority for critical infrastructure sites, so-called. Did that come out of your office and was there resistance in the field to that or how was that rolled out? Mr. Schoch. Actually, it is more of a collaboration between the field offices, the 26 SAC offices, and headquarters. A threat assessment was done actually in 2004, and the SAC offices themselves identified critical infrastructure protection as a vulnerability that needed to be addressed. Then the office at headquarters, working with that information, was able to shape policy and basically have a uniformity to that and put that guidance out to the field. There is guidance that says that we look at national security and we look at public safety as the two utmost priorities in that program, and examples of cases where we've had individuals with fraudulent documents trying to get into White Sands Missile Base; people that were translators actually working at Fort Bragg, NC, actually teaching, you know, our special forces. Those are cases that, while they were not included in the GAO study as national security, we find threats, significant threats to our national security, and hundreds of cases in 2005 were conducted in these areas. That is a uniform policy across the board. Mr. Halloran. So finally, the threat assessment you referenced in that regard is that written, a single document that we might get? Mr. Schoch. It was conducted in 2004. I would be happy to provide you with that. Mr. Halloran. Thank you. [The information referred to follows:] [GRAPHIC] [TIFF OMITTED] T9581.047 [GRAPHIC] [TIFF OMITTED] T9581.048 [GRAPHIC] [TIFF OMITTED] T9581.049 [GRAPHIC] [TIFF OMITTED] T9581.050 [GRAPHIC] [TIFF OMITTED] T9581.051 Mr. Shays. Mr. Schoch, how many employees do you have? Mr. Schoch. ICE has 5,600. Mr. Shays. Right. And they are located in how many places? Mr. Schoch. We have 26 field offices. Mr. Shays. When we combined this office into one, did we maintain the same number of employees and just give them to the agency or did we weed out a number along the way? In other words, when we put A and B together, do you have the same number? Mr. Schoch. I would say within, you know, maybe 100 or plus or minus, there's generally about the same number. Mr. Shays. You know when you read about what have been the legacy, the drugs, financial dealings, general immigration, smuggling, human trafficking, document fraud, worksite enforcement, I look at that and I say that is pretty serious stuff, so logically you don't want to give up on them. But I am wrestling with why it has to take a long time to begin to break out of this legacy and begin to think anew and act anew. That is what I am wrestling with, and so explain to me why that is a challenge. Is it old cases that stay on the books? Weren't you able and aren't you able to just simply say, you know, we are going to devote more time in this way, and is it that they don't have proper schooling? What is it? Mr. Schoch. Do you mean toward national security types? Mr. Shays. Absolutely. That is what I mean. Mr. Schoch. I think because, and while we appreciate the GAO study, we take exception to some of their findings, again, critical infrastructure type cases were not included in that 10 to 15 percent number that they arrived at. The case on the tunnel, for example---- Mr. Shays. But basically, both the Inspector General and GAO pretty much come to the same conclusion; agreed? Mr. Schoch. I don't know if they reached the same conclusion on our focus on national security. Mr. Shays. Well, why don't we have them to explain? Mr. Stana. Well, I would start off by saying we stand by the number. In fact, there was a survey done of actual ICE investigators on how many of their cases actually involved a national security nexus, and we could argue about how well the survey was done, but the fact is that the agents themselves characterized it as far less than 10 to 15 percent. Mr. Shays. OK. Mr. Stana. So we can play with that---- Mr. Shays. So you felt you were being generous? Mr. Stana. No, I think what we used information that on was text, and we made a point at one time that it was far lower, but at the end we weren't really satisfied with the methodological rigor that was used to survey the agents or the investigators themselves, so we will, for the sake of discussion, we will say it is 10 to 15 percent, but just know that counts what--how you characterize a case, not necessarily case results. Mr. Shays. OK. And by case results, you mean what? Mr. Stana. Well, I mean if you start off an investigation based on a tip that something may involve a terror organization, and you get into it and you find out no, it is something less than that. It still may be categorized for the purposes of the management system as having a nexus to national security, but at the end of the day, it really does not. I'm not saying that is all of their caseload, but it is a substantial amount of their caseload. Mr. Shays. Mr. Skinner, how do you and Mr. Stana disagree or do you disagree on your analysis? Where would you be different? Mr. Skinner. Well, I can't say we disagree, because we didn't do an analysis per se of how much time was being spent on national security or terrorist activities versus the more traditional interdiction---- Mr. Shays. Right. Mr. Skinner [continuing]. Activities. However, during the course of our review, in our interviews with over 600 individuals out the field, we did learn that the ICE is a big participant in the Joint Federal Terrorist Task Force. As a matter of fact, throughout the country, they participate on this. But there was also a degree of frustration and that is why invest so much of our time and resources in a terrorist investigation when in the long run, it is going to be turned over to the FBI. So there is this institutional competition that exists as to who has primacy for these investigations. I know there was frustration voiced in our interviews with many of these agents out there that they were not inclined to get real excited about these cases, knowing that if they invest any time in these cases, they are going to be turned over to the FBI. At the same time, those that we interviewed were very enthusiastic about the terrorist task force that exists across the country, and ICE participates very, very--or a major player in all those task forces as well as other law enforcement agencies. Mr. Shays. What logically do all three of you think it takes an organization like the Department of Homeland Security to try to benefit from the synergies that occur when you bring disparate groups that have a lot of commonality, but were in different agencies and now they are together? I sometimes feel like we are criticizing DHS without really being certain that we are accurate. I mean are you generally in your other work seeing some benefit to this bringing together into this agency, admittedly 180,000 people? And, if so, would you say that ICE is ahead of schedule compared to others or behind, not schedule, is behind others in beginning to benefit from the creation of this new office? I mean we created a lot of new offices. We brought a lot of people together. Is ICE ahead of the curve or behind? Are they ahead of most? Are they behind most? Are they somewhere in the middle? How would you describe it? Mr. Stana. I will start with me. I would say there was a benefit to bringing the groups together, if for no other reason than it provided a focus and a nexus for investigations on national security and terrorism, and I think there is a value there that you don't see everyday, but the kinds of cases that Bob Schoch talks about in his prepared statement underscore the benefit of bringing them together. Second, I would say with respect to ICE, of all the components of DHS that I have been---- Mr. Shays. Right. Mr. Stana [continuing]. Examining, I think they had the longest way to go. If you look at CBP, they have put together two units that had basically a similar function or a function that meshed a little bit better. The Coast Guard came over, you know, in one piece. Secret Service came over in one piece. FPS came over. ICE came together where they had to spend an awful lot of time merging disparate cultures and functions. Even the agents themselves weren't even graded the same, so you had to get over lots of personnel issues, management information issues, and I think for the first couple or 3 years, they paid a price for that. Like I said earlier, I think the best thing we can do right now is let the agency mature; let it stabilize. It has new leadership. Hopefully, it will be strong leadership to take care of the kinds of management problems we have talked about. Are they on schedule? Probably. Most people think that it takes 5 to 7 years, and the kinds of coordination mechanisms that Bob mentioned are a step in the right direction. We think with more emphasis on identifying the vulnerabilities they ought to be addressing, they would be in much better shape. Mr. Shays. Great. Thank you. Mr. Skinner. Mr. Skinner. I tend to agree with Mr. Stana. For one thing, I think the synergy that is brought to the table by forming the Department of Homeland Security and the ICE and CBP can have a tremendous impact on our ability to attack terrorism as well as our legacy activities. But I think we are nowhere near where we should be. I agree that CBP came out of the chute a lot faster. They were better organized. They implemented a one face at the border, and they had the funding to support their activities; whereas, ICE started in the hole. They immediately had budget problems, accounting problems, and they had severe cultural problems, those that were the investigative people as we alluded to earlier are accustomed to investigating human trafficking. They don't want to do anything else--versus those that are accustomed to investigating narcotics trafficking. It is very hard to break them out of that mold to do other things. They have a long way to go. Are they where they should be? That is hard to tell. Again, I think they started in the hole---- Mr. Shays. No, basically, they are not where they should be, but you think they are getting there. Mr. Skinner. Yes, I do. Mr. Shays. OK. Mr. Schoch, would you have any comments on anything we have---- Mr. Schoch. I would, sir. I think I would look at the benefits, and having one border security investigative agency I think is the biggest benefit that I have seen, having been a member of INS for 13 years. And the financial expertise, in particular, the former Customs had used for years to combat, you know, drug cartels, that now and almost immediately was applied to the legacy INS type human trafficking, human smuggling, organizations, identity benefit fraud. We are not just going out and arresting the person. We are looking at their assets and really hurting them in the pocketbook, where the financial criminal gain is at. Also, what was mentioned is we weren't co-located different disparate grades, and the budget. I think a lot of those things are beginning to come together and I think I personally believe that we are heading in the right direction as an agency, with new leadership and so forth. Mr. Shays. Thank you, Mr. Schoch. Mr. Van Hollen, do you have any last questions? As much as time as you want. Mr. Van Hollen. Thank you, Mr. Chairman. Yes, I have a question for Mr. Schoch regarding the extent to which ICE is using its authority in terms of admitting people to the country to exclude individuals because they may espouse political positions that the administration does not like. We are going to have testimony a little later from a representative from the ACLU and unfortunately I have another meeting, so I am not going to be able to hear that. But I would like to get your response to that. I understand that as part of the Patriot Act, in 2001, the Congress included a provision that allows people to be excluded if they have essentially been encouraging people to support terrorist activities overseas. I understand that is the provision in the law. But I do want to focus on a particular case which they raise in their testimony of Professor Ramadan and ask you specifically on what grounds, on what basis, specifically, did you exclude him from coming to the country? Mr. Schoch. Well, first of all, let me just try to clarify a couple things. The Customs and Border Protection makes determinations on admissibility. Their inspectors are on the front line making those determinations of whether or not somebody has the lawful right to be admitted into the United States. The Ramadan case in particular is being litigated now at the Department level I believe, and I am not at liberty to even discuss that. Any ICE investigation that we conduct, and Mr. Skinner pointed this out, we have actually the largest number of ICE agents, of agents, that contribute out of any Federal agency to the Joint Terrorism Task Force. We have almost 250 ICE agents on the Joint Terrorism Task Force. That is only second to the FBI. Any investigation that we come into that is open, where we believe there is any type of a threat to our national security--terrorism and so forth--potential individuals can get on watch lists; and, therefore, that watch list could trigger some type of an admissibility issue. But as far as Ramadan, I can't with specificity, I cannot speak on that, because that is at the Department level as well as CPB makes those determinations on admissibility into the United States. Mr. Van Hollen. All right. Apart from being placed on a watch list, and as I understand your testimony, you can't comment today as to whether or not he was on a watch list; is that correct? Mr. Schoch. That is right. Mr. Van Hollen. OK. But apart, just, you know, theoretically, apart from someone being placed on a watch list, is it the policy of ICE to deny anyone entry in the country based on their expression of political views other than someone who may have, you know, espoused terrorism? Mr. Schoch. I think any of the decisions that are made in any of those areas are coordinated with our council and those again, the final admissibility decisions are made by Customs and Border Protection. ICE doesn't make determinations of admissibility, you know because the investigators are not, you know, at the front line as the inspectors are making those determinations. Mr. Van Hollen. All right. So that is in the other---- Mr. Schoch. That is correct. Mr. Van Hollen [continuing]. Agency that we have been talking about today. Mr. Schoch. Right. Mr. Van Hollen. Right. Thank you, Mr. Chairman. Mr. Shays. Thank you, and we are going to just have counsel ask one more line of questions, and then we are going to get to our next panel. Mr. Halloran. Yes. If you could talk a little more about the active versus passive way in which ICE determines the national security nexus, the kind of the definitional issue that you disagree with GAO about a little bit. So the question might be better put how do you move from the case-by-case or line of business analysis of national security to a more comprehensive assessment of vulnerabilities that you need to address by proactively applying resources to them. I mean you were going to mention before the tunnel case, and its national security implications. But nothing in your testimony says you had information at hand that says it was a national security threat; it was a drug route primarily; is that correct? Mr. Schoch. Right. Mr. Halloran. And so you kind of take credit for the weather there, and say that it could have been used for national security. So how do you move from kind of a what I think you would have to agree is in some respects a reactive posture to finding national security implications in cases, actually focusing resources on what does have a national security threat? Mr. Schoch. I will give you an example specifically proactive. I manage the Arms and Strategic Technology Unit, ICE has the broadest export authority of any Federal agency, of any law enforcement agency. We look at violations of technology, very technical technology leaving this country that has to have an export license, by Commerce, for example, and also our military equipment--generation three night vision, for example or F-14 parts. We conducted in the fall of this year, we began and initiated a comprehensive--through all the 26 SAC offices a threat assessment to identify the resources that we are putting toward that program in the field, the threat that the SAC offices each felt that what were the threats, what were the vulnerabilities, and again very similar to how I mentioned the worksite was done, we worked in collaboration with the field offices and now, as a result, we have created different adjustments in resources in certain SAC offices as the result of that. More resources had to be put toward those investigations, as well as now we are driving national initiatives in certain areas as a result of that threat assessment. Very proactive, driven by headquarters, and that again, just to kind of exemplify some of the things that we are doing. Mr. Halloran. Thank you. Mr. Shays. Is there anything we need to put on the record before we go to our next panel? Is there any question you wish or happy we didn't ask that I would like you to ask? Nothing? OK, gentlemen. Thank you very, very much. Mr. Shays. Our second and last panel is Dr. Joseph Ryan, Chair and professor of criminal justice and sociology at Pace University; as well as Ms. Caroline Fredrickson, director, ACLU, Washington Legislative Office; and Mr. Joseph Webber, Special Agent in Charge, Retired, Bureau of Immigration and Customs Enforcement, U.S. Department of Homeland Security. By the way, I have my jacket off. If you gentlemen would like to take your jacket off as there is no TV here, we can relax a little bit. If you would like your coat off, feel free; your jacket off, you are more than welcome to. Ma'am, as well. [Witnesses sworn.] Mr. Shays. Note for the record, our witnesses have responded in the affirmative, and we will start with you, Dr. Ryan, and thank you all three of you for being here. STATEMENTS OF JOSEPH F. RYAN, PH.D., CHAIRPERSON, DEPARTMENT OF CRIMINAL JUSTICE AND SOCIOLOGY, PACE UNIVERSITY; CAROLINE FREDRICKSON, DIRECTOR, WASHINGTON LEGISLATIVE OFFICE, AMERICAN CIVIL LIBERTIES UNION; AND JOSEPH R. WEBBER, SPECIAL AGENT IN CHARGE (RETIRED), BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. DEPARTMENT OF HOMELAND SECURITY STATEMENT OF JOSEPH F. RYAN Dr. Ryan. Chairman Shays and members of the subcommittee, thank you for inviting me to testify. In your invitation you asked me to provide my expertise on the application of risk management and outcome-based performance monitoring strategies that will permit the Bureau Immigration and Customs Enforcement resources to be used effectively in the interest of national security. You also asked that I offer recommendations specific to ICE. Since I was not given access to the GAO report, my recommendations are not necessarily specific to ICE or can apply to any government agency. In terms of identifying risk, the definition that I prefer is one used by financial managers: Risk is a chance that something will occur, come out worse than planned. In reality, police assume the same in terms of risk. They know and plan that crime will occur and hope that the worst does not occur. Unfortunately, the worst crime did occur on September 11, 2001. One of the best ways you can conduct risk assessment is to follow Yogi Bera's maxim: You can observe a lot by watching. Yes, it can be that simple, but unfortunately in the public sector, you encounter difficulties. Risk management becomes difficult when there is no consensus---- Mr. Shays. Did Yogi ever say that, really? Dr. Ryan. Yes. Mr. Shays. He is brilliant---- Dr. Ryan. I did research it. Mr. Shays. He is brilliant. The guy is brilliant. There are too many. Dr. Ryan. Wonderful practice. Risk management becomes difficult when there is no consensus as to what you are trying to achieve or how you are going to manage the risk you identify. A major component in developing effective risk assessment requires leadership that recognizes the need for bringing all stakeholders together to jointly assess risk. At times, risk management requires making tough decisions. Inherent in public decisionmaking is that you cannot please all the people all of the time. For example, the New York Times recently provided insight as to how the New York City Police Department claimed it was successful in managing large demonstrations that cause significant damage in other cities. Unfortunately, some of these strategies have been criticized for inhibiting freedom of speech. Intricately related to risk management is outcome-based performance monitoring. It is one of the tools that can be used to help you know if you have accomplished what you want to achieve. Outcome-based performance monitoring is, in reality, performance measurement. It involves measurement on a regular basis of the results and efficiency of services or programs. It also includes using results to make improvements in the organization and in the way it delivers its services. Performance management is quite simple. The real challenge lies in data collection and analysis, which, in law enforcement, has been notoriously poor. Data collection in law enforcement is possible. New York City's COMSTAT effort is just one example. Key in this strategy is timely and accurate crime reporting. COMSTAT involves meeting with commanders who are expected to be aware of local crime conditions, and to explain what they are doing to address them. If you use performance measures effectively, you can manage for results and improve the services that the organization provides and the morale of all involved. One of the first problems encountered with productivity measures is that no one likes to be assessed. It is no longer an issue of whether performance measures should be conducted. Citizens expect results. One of the most important strategies that a leader needs upon assuming a command position is define the agency's vision and mission statements. This statement tells you what the organization hopes to accomplish and where it should be heading. The key to overcoming resistance and effecting change is found in an agency's vision and mission statement. It is important to gauge the people most likely to be affected; that is, the ones who are already involved and who have the most at stake in getting the job done right. You have to seek their advice and give them the power to fix what they, more than anyone else, know needs fixing. When reframing an organization to achieve an agency's vision and mission, a leader needs to take a holistic view of all the issues that relate to the organization and implement changes that will move the agency forward. September 11th changed the way law enforcement needs to operate. We are in a time of crisis and uncertainty. Leadership at this time in ICE is imperative. In conclusion, I would like to offer the following five recommendations that I believe will help ICE effectively deploy its resources to enhance national security: ICE should develop a vision and mission statement for their agency. It is important that key stakeholders be involved in determining what they should be accomplishing and how it should be accomplished. The vision and mission statements should be shared with all within ICE and training should be developed that will provide guidance on how the goals will be achieved. Once a consensus is developed for ICE's vision and mission statement, key stakeholders within ICE should begin to assess the risk they face. An outcome-based performance monitoring system should be developed that parallels the vision and mission statement in an effort to ensure that ICE is achieving its agreed upon goals. Last, ICE should identify key data elements that can be used as part of its outcome-based performance monitoring strategies, which can be used to improve the resources needed to enhance the national security. Thank you, and I am available for your questions. [The prepared statement of Dr. Ryan follows:] [GRAPHIC] [TIFF OMITTED] T9581.052 [GRAPHIC] [TIFF OMITTED] T9581.053 [GRAPHIC] [TIFF OMITTED] T9581.054 [GRAPHIC] [TIFF OMITTED] T9581.055 [GRAPHIC] [TIFF OMITTED] T9581.056 [GRAPHIC] [TIFF OMITTED] T9581.057 [GRAPHIC] [TIFF OMITTED] T9581.058 [GRAPHIC] [TIFF OMITTED] T9581.059 [GRAPHIC] [TIFF OMITTED] T9581.060 [GRAPHIC] [TIFF OMITTED] T9581.061 [GRAPHIC] [TIFF OMITTED] T9581.062 [GRAPHIC] [TIFF OMITTED] T9581.063 [GRAPHIC] [TIFF OMITTED] T9581.064 [GRAPHIC] [TIFF OMITTED] T9581.065 [GRAPHIC] [TIFF OMITTED] T9581.066 [GRAPHIC] [TIFF OMITTED] T9581.067 [GRAPHIC] [TIFF OMITTED] T9581.068 [GRAPHIC] [TIFF OMITTED] T9581.069 [GRAPHIC] [TIFF OMITTED] T9581.070 [GRAPHIC] [TIFF OMITTED] T9581.071 [GRAPHIC] [TIFF OMITTED] T9581.072 [GRAPHIC] [TIFF OMITTED] T9581.073 Mr. Shays. Thank you, Dr. Ryan. Ms. Fredrickson. STATEMENT OF CAROLINE FREDRICKSON Ms. Fredrickson. Chairman Shays, distinguished members of the subcommittee, on behalf of the American Civil Liberties Union, I am very pleased to appear before you today. The Department of Homeland Security's Bureau of Immigration and Customs Enforcement and the State Department have resurrected the discredited practice of ideological exclusion, the practice of denying visas to non-citizens whose politics the government dislikes. I respectfully submit to this subcommittee that attempting to suppress constitutionally guaranteed freedom of speech and freedom of association is not an effective use of ICE resources. It is not in the best interest of our national security and tramples Americans' first amendment rights. We believe it is contrary to fundamental American values regarding freedom of expression as protected by the first amendment of the Constitution for the administration to suppress the exchange of ideas between Americans and people of different national origins and dissenting beliefs simply because they are different. Ideological exclusion is a term of art, but its impact is real. The Federal Government is excluding people to prevent American citizens and residents from participating in conferences or exchanges of ideas with people whose ideas the administration finds distasteful. By regulating, stigmatizing, and suppressing lawful speech, the provision skews and impoverishes academic and political debate inside the United States. It creates artificial barriers. It deprives Americans of information the need to make responsible and informed decisions about matters of political importance. In particular, I would like to draw the subcommittee's attention to the Federal Government's exclusion of Dr. Tariq Ramadan, a Swiss citizen and arguably the most the prominent and respected European scholar of the Muslim World. The Bush administration's decision to exclude Professor Ramadan stifles intellectual exchange about Islam and the Muslim World precisely at a time when robust dialog and debate about America's international policies and commitment to freedom and peace are of extraordinary importance to our Nation's future. Ramadan, has ostensibly, but wrongly, been excluded under a provision passed in 2001 through the Patriot Act. The provision added to the list of aliens ineligible to receive visas those who have used their ``position of prominence within any country to persuade others to support terrorist activity or a terrorist organization in a way that the Secretary of State has determined undermines the United States' efforts to reduce or eliminate terrorist activities.'' The ideological exclusion provision now renders inadmissible any alien who has ``endorsed or espoused terrorist activity or persuaded others to endorse or espouse terrorist activity or support a terrorist organization.'' While this provision is theoretically directed at those who support terrorism, news reports suggest that the government has invoked the provision to exclude and stigmatize prominent critics of U.S. foreign policy. The government revoked Professor Ramadan's non-immigrant visa in August 2004 under the ideological exclusion provision, preventing him from becoming a tenured professor at the University of Notre Dame. Until recently, Professor Ramadan lawfully visited the United States to lecture, attend conferences, and meet with other scholars. The ACLU recently filed litigation challenging his exclusion and the provision itself. The lawsuit was filed on behalf of the American Association of University Professors, the American Academy of Religion, and the Pen American Center. Professor Ramadan has published more than 20 books and over 700 articles on democracy, human rights, and Islam. After September 11th, he publicly condemned the attacks, telling fellow Muslims, ``now more than ever we need to criticize some of our brothers and say, you are unjustified if you use the Koran to justify murder.'' While he has been critical of some U.S. policies, he has never endorsed, espoused, or persuaded others to support terrorism. He has been a consistent and vocal critic of both terrorism and those who use it. While we await a ruling from the U.S. District Court in Professor Ramadan's case, we are pursuing a Freedom of Information Act request to learn more about the administration's use of this provision to deny admission to other scholars. We believe the State Department and other government agencies are illegally withholding records concerning the practice of excluding foreign scholars and other prominent intellectuals from the United States because of their political views. In November 2005, the ACLU filed a lawsuit to enforce our FOIA request, and the case is pending, and the ACLU has only received some of the documents it has requested. It is a fundamental tenet of our society that protecting free expression of ideas outweighs any theoretical benefit of censorship. The Supreme Court has affirmed the fundamental right of Americans to receive ideas. As the court wrote in 1972, ``it is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail. It is the right of the public to receive suitable access to social, political, aesthetic, moral, and other ideas and experiences. That right may not be constitutionally abridged.'' The suppression of speech on the basis of its content is not made consistent with American values simply because the government is using immigration law rather than some other mechanism as the instrument of censorship. To the contrary, every court to confront the issue squarely has held that the content of a visitor's speech cannot by itself supply a legitimate and bona fide reason for exclusion. The reinstatement of the practice of excluding people from our shores because they are exercising their freedom of conscience is much too reminiscent of the McCarthy era, when thousands of Americans and immigrants were black listed. It is our view that America's precious anti-terrorism resources should be focused on preventing another attack, not on arbitrarily excluding people who pose no threat to our government or people and actually can do so much to enrich our intellectual and cultural life. Thank you for the opportunity to testify. [The prepared statement of Ms. Fredrickson follows:] [GRAPHIC] [TIFF OMITTED] T9581.074 [GRAPHIC] [TIFF OMITTED] T9581.075 [GRAPHIC] [TIFF OMITTED] T9581.076 [GRAPHIC] [TIFF OMITTED] T9581.077 [GRAPHIC] [TIFF OMITTED] T9581.078 [GRAPHIC] [TIFF OMITTED] T9581.079 [GRAPHIC] [TIFF OMITTED] T9581.080 Mr. Shays. Thank you very, very much. Thank you, and we will now go to Mr. Weber. STATEMENT OF JOSEPH R. WEBBER Mr. Webber. Mr. Chairman, thank you very much for the opportunity to be here today to discuss the investigative priorities of Immigration and Customs Enforcement [ICE]. I retired from the agency as the Special Agent in charge in Houston in September of last year, after 32 years of service and I appreciate that opportunity to serve. I still have a fondness for the agency, a pride in its mission, and most respect for the employees. I also have a continued interest in homeland security issues, as I was in New York City on September 11th. The U.S. Customs House was approximately 30 feet north of the North Tower of the World Trade Center. I was entrapped in Building 7 of World Trade Center and evacuated by the New York City Fire Department, and, but for their assistance, I would not be here today. So I have a very special motivation when it comes to homeland security. It is something that at times I think is still taken not seriously. But it is indeed an honor to be here today to be heard and hopefully in some small way have an impact on the future of ICE. With the reorganization of government and the creation of the Department of Homeland Security, ICE was formed in March 2003, presumably for the purpose of pursuing violations of our Nation's immigration and customs laws. However, from the onset, the agency was embroiled in controversy. Some of the difficulties that ICE encountered are not unique and not without precedent. One only has to look to the private sector and observe the problems encountered in mergers and acquisitions. Many mergers and acquisitions fail. Productivity suffers, as employees try to re-acclimate to the new environment, see new ways of doing business. Many employees focus on what the reorganization means to them personally and where they fit in the new organization. In addition to the normal stressors associated with a reorganization, ICE faced a significant budget shortfall, and, in my opinion, a lack of direction. Consequently, there were no funds to offset the difficulties encountered with the reorganization. There were insufficient funds for things like cross training. There were insufficient funds for co-location of personnel, travel, fuel for vehicles. And most importantly, there was a hiring freeze. Unfortunately, some of the events that were reported in the media were true. Vehicles were parked. Copy machines were picked up, as the bills were not paid. And there was a lack of accountability in virtually all administrative systems. Special agents in charge received a stipend budget on a quarterly basis, not knowing if additional funds would be received. Not only were there difficulties encountered identifying investigative priorities, it was difficult to establish spending priorities due to the budget shortfall. In an ideal environment, managers ensure that the budget is appropriately matched to its priorities. We were falling short on both counts. As if these hurdles were not obstacles enough, the agency was continually bashed in the press. In order to establish its new identity, the agency attempted to change its name. These attempts were blocked by the FBI, and it resulted in badges and credentials not being issued for a period of over 2 years. And even, as we heard today, the continued existence of the agency was questioned, as DHS, as we heard earlier today, conducted a study as to whether to move the ICE back into CBP. Some of this may seem unimportant to some, but when attempting to establish a new agency, a new identity, a new culture, it is of a critical importance to convey to all employees the agency mission, priorities, and vision. Combined, these stressors have taken their toll on ICE's most valued resource, the employees and their morale. As indicated earlier, mergers and acquisitions are difficult to manage under the best of circumstances. Needless to say, these were not the best circumstances. However, sir, I am proud to report to the subcommittee that the ICE employees continue to do a remarkable job, pursue significant cases, and perfect significant cases, and we must not overlook the administrative staffs who have done a remarkable job with antiquated administrative support systems. It was a rather long introduction, but I think it is important before we go to the priorities of the organization to kind of understand some of the turmoil that we were going through when ICE was established. In government service, as in the public sector, there are never---- Mr. Shays. To be clear, how much more do you have in your statement? Mr. Webber. I am sorry, sir. Mr. Shays. No. Just tell me what you have in your statement? Mr. Webber. I will try to shorten it. Mr. Shays. Yes. You should shorten it, but do those key points. Mr. Webber. I will. OK. ICE, as we have heard earlier, ICE's jurisdictional authority can be very broad in that it could essentially anything that crosses the border illegally, be it merchandise or people can be subject to investigation by ICE. When ICE was formed, the exercise of addressing the agency's priorities never took place. At the second Special Agent in Charge [SAC], Conference in Philadelphia, ICE specifically asked the Assistant Secretary that we dispense with the planned agenda and go immediately to a discussion relating to the agency's mission and the agency's priorities. And the response from the Assistant Secretary was, what is it you need, Joe? A PowerPoint? All the discussion relative to the establishment of a mission statement or priorities was quashed. There was no further discussion. Mr. Shays. Wow. Mr. Webber. Similar things had happened along that line. In one instance, the Deputy Assistant Secretary openly criticized the Legacy Customs managers indicating they had spent too much time on drug cases. Of course, when pressed for what is the new number, what is the appropriate amount of time to spend on drug cases and also where to reinvest the energy, there were no answers. There were no priorities established. As we heard earlier, I believe it is very easy to establish priorities within ICE. It calls for some tough decisions. Some poor initiatives need to come off the table. They have an excellent case management system, where you can put a priority on a case category and then track how much effort is actually being put into it. And obviously anything that impacts the safety of our citizens should be considered a class one case. And all managers should be held accountable that is where their time is invested. A very good example of how ICE's resources could be saved is there is a program, Institutional Removal Program, where essentially illegal aliens that are prison are identified and deported after completing their sentences. I am not arguing against the initiative at all. It is something that definitely should continue. However, it is not an investigator's job. It needs to be transferred to the Office of Detention and Removal. There is a separate office within ICE, Detention and Removal, whose function is to detain and remove aliens, but yet we have agents doing that function. About 10 percent of ICE's investigative resources are performing this function. Again, I will attempt to shorten it. The other issue, sir, that I would like to leave with you is that of jurisdiction. And there have been turf battles, both within the Department and outside the Department. The interactions between CBP and ICE, be it the Border Patrol or Inspections, have been reduced to the establishment of working groups; working out MOUs between themselves versus leadership and policy coming from the Department or from the heads of the agencies. I was involved in an incident in Houston where we were working a financial terrorism case, and I am precluded from getting into great depth about the case, but I can tell you that it proceeded to point where we submitted an affidavit for a wiretap to Washington, DC, main Justice. In that affidavit, which it was a consensus of everyone involved that there was sufficient probable cause to pursue the wiretap, terrorism was referenced on 49 occasions. Osama bin Laden by name was referenced on three occasions, and Al Qaeda once. That affidavit stalled in Washington for a period of over 127 days. After not being able to move that case forward, I wrote a letter to GAO, the IG from DHS, and the IG from DOJ. I heard nothing, and essentially saying that a case involving our national security was being compromised. I heard nothing from the oversight agencies. I then wrote to Senator Grassley's office. Senator Grassley initiated an inquiry. And the IGs, the response from the FBI initially there was a Dateline story. The original response from the FBI was that it was nothing more than a dispute between agencies on how to pursue a given investigation and that all terrorism leads are vigorously pursued. When questioned on the House Judiciary by Senator Grassley, Mr. Mueller would testify that the affidavit had, in fact, been delayed and that there were differences in recollection of events by some of the agents involved. To cut to the chase, in addition to the troubles that ICE is having with prioritization, it has jurisdictional issues. If ICE is not going to be able to pursue cases that relate to our national security, there is a built-in disincentive to initiate these kinds of cases. If, as we heard earlier, if the agents are going to be required to turn it over to another agency. [The prepared statement of Mr. Webber follows:] [GRAPHIC] [TIFF OMITTED] T9581.081 [GRAPHIC] [TIFF OMITTED] T9581.082 [GRAPHIC] [TIFF OMITTED] T9581.083 [GRAPHIC] [TIFF OMITTED] T9581.084 [GRAPHIC] [TIFF OMITTED] T9581.085 [GRAPHIC] [TIFF OMITTED] T9581.086 Mr. Shays. OK. Thank you very, very much. I am going to start out with the professional staff. Ms. Daniel. Mr. Webber, we will start with you. You have a unique perspective in that you have a number of years of experience before ICE was formed and then you were there during its formulation and then for a little while thereafter. A lot of your testimony speaks about coordination problems and turf battles, and I am wondering to what extent the problems of interagency coordination existed before the creation of ICE and were carried over. In particular, it was one thing that makes me think about this is it is curious that your agency needed the FBI's permission to change its name. I wondered if you could speak a little bit more about that in the broader context. Mr. Webber. Well, first to the turf battle issues. Unfortunately, turf battles are an unfortunate reality in law enforcement. At a time, the competitive spirit works to a certain extent, and at times, it becomes counterproductive. It has been my experience, and I was a SAC. I have been 32 years on the job, and a SAC in three different cities--El Paso, New York, and Houston--that if an issue got to a high enough level, it would get resolved. That, to me, seems to be what is missing. And, of course, at the time, CBP and ICE it was all Customs and Immigration. And needless to say, the Commissioner of Customs, as an example, wouldn't want to hear that there was a dispute between a Port Director and a SAC. It just didn't happen. Problems would not get escalated to headquarters like that. There was pressure to make sure that things got worked out at the local level. As to the name issue, it is my understanding that when a proposed name change was floated to D.C., it was sent to the other agencies and the FBI opposed ICE's changing its name. ICE is the only agency I believe in Federal Government that has an acronym on its badge. It doesn't say Immigration and Customs Enforcement. It says ICE. And there were efforts to change it to Investigations and Criminal Enforcement and the Bureau, as I understand it, blocked that move and badges and credentials weren't issued for over 2 years. Ms. Daniel. I am also interested in the ideas that you have to reform the problems that exist right now. You are obviously embroiled in something resulting from the memorandum of understanding between the FBI and ICE. There are a number of other memoranda of understanding or of agreement between other various DHS and outside components. Some believe that these simply don't work; that it is just a piece of paper, and when it gets out into reality, it sort of looses its umph. If you contend that the memoranda of understanding are an ineffective way of resolving interagency problems, what do you recommend instead? Mr. Webber. Well, from my perspective, and I think what the American public wants from us is they want law enforcement agencies working together, communicating, and working in a cooperative environment. That is very easy to say obviously, but hard to do. From my perspective, it is leadership. I mean these are all executive agency entities. And particularly in a post September 11th environment, it shouldn't be tolerated. Last week's testimony on Moussaoui sentencing. Why in a post September 11th environment would anyone get in the way of pursuing a terrorist-related lead? The objective should be to get behind it and try to help, not impede. Ms. Daniel. OK. I would like to ask Ms. Fredrickson a question. You were talking about the creation of artificial barriers and the ideological exclusion provision as something that ultimately compromises the ability of the American people who might otherwise hear what people have to say to make independent decisions. In cases like Dr. Ramadan's, according to the evidence you present, it seems that he has been one might say wrongly excluded. But the question is that then going through case by case, where do you draw the line in excluding or including? How do you avoid casting the net too wide, but specifically what criteria should the United States use to distinguish between the exercise of the freedom of speech and advocacy of ideologies that may genuinely pose a threat to U.S. national security? Mr. Shays. Before you answer that, does he have a freedom of speech issue or is your claim that the American public has the right to hear his speech? Ms. Fredrickson. Yes. The case law--and there is a very well established case law in this area--shows that this free speech right is clearly with the Americans and citizens and residents here who have the right to associate and hear ideas, and the Supreme Court has spoken very loudly on this, particularly relating to the exclusion of visitors--and the viewpoint exclusion in particular, and I think to answer your question, the issue here is about speech. And I think that is where the Supreme Court has drawn the line; the other courts have drawn the line. When that is the only reason someone is being excluded, that is unacceptable viewpoint discrimination. That is not allowed under the first amendment. Mr. Shays. Even if it is--allegedly, maybe not in this case, but inciting people to riot, to overthrow the U.S. Government, to do damage to the government, they would have that right, even as non-Americans? Ms. Fredrickson. Well, this is someone's point of view, but not actions associated with espousing, persuading people to take actions are in a different category. What has happened here is that the way that the provision has been interpreted in particular by the State Department in their manual is to set a very, very, very broad parameter for who can be excluded and that is--for people really the language--I don't have it right in front of me--but is pretty much for unacceptable ideas. And so in the past, this particular provision has been used to exclude a wide variety of artists and scholars, and there was an ideological exclusion provision that existed prior to the Patriot Act was in the 1980's and early 1990's. I think it was removed from the law at that point, but previous to that, it had been used quite a bit in the 1950's and 1960's, and so to keep out some very, very well known individuals--novelists and so forth like Graham Greene, Dario Fo, and so forth, and people who pose no threat to our way of government; have no national security implications in their writing. And I think Dr. Ramadan is an incredible case, because he, in particular, has been so involved in trying to advocate a moderate point of view in Islam. He was actually appointed by Tony Blair to a commission on how to reduce terrorism. I think it shows that with that kind of provision in the law and the breadth of the interpretation imposed on it by the State Department, you reach results that are very profoundly dangerous for our way of government. Ms. Daniel. Dr. Ryan, you discussed that the first step to take in applying risk management and outcome-based performance monitoring and bringing that together is to assess the mission and vision statement of a particular entity. The Bureau of Immigration and Customs Enforcement [ICE], is responsible for reducing national security vulnerability in a wide variety of investigative areas and often, as we have heard discussed a lot today, in coordination with many other entities at the same time. So what steps should ICE take to apply risk management to multi-level governmental enforcement efforts to achieve one clear sort of both risk assessment and outcome-based performance measures? Dr. Ryan. Well, I just have to back off for a second and say I really don't understand the structure of ICE, and that kind of decision needs to be given to ICE itself. The different levels in that bureaucracy need to address each of those questions--how are they going accomplish. The vision and mission statement is a very important tool. I will give you one example: When the 1994 Crime Act was passed, a major segment of that, $6 billion, was allocated to hiring police officers, and the task was very simple: how do you get those officers out there? It was very clear, the direction was clear, and it was accomplished, so I have to back off. I am not sure exactly what ICE is trying to accomplish. It sounds like it is trying to accomplish many things, but I would submit to their expertise, and I did mention in my testimony, in my written testimony also, that a vision and mission statement should be made up by everybody in the agency, and including outside agencies if their activities impact on another agency. Ms. Daniel. Risk assessment is something that can be coordinated, though, at a multi-agency level? Dr. Ryan. Well, once the agency itself, namely ICE, identifies its risk, OK, I mean, I'm sorry. I need to back up. The way an agency identifies its risk is everybody in the agency agrees what the risks are. They have to do it themselves. If the FBI is going to tell ICE what the risks are, that is a wrong direction. ICE needs to identify its own risk. Ms. Daniel. Mr. Webber, did you want to add anything to that? Mr. Webber. No, I would agree wholeheartedly, and I think Dr. Ryan's comments earlier about the division, the mission, and the vision is the problem and that--when people come to work in the morning, they don't need to question what they are there for. Ms. Daniel. For my final question I would address something to all three of you. You are all here from very different backgrounds. Dr. Ryan is from an academic and law enforcement angle. Ms. Fredrickson is from a legal and activist perspective, and Mr. Webber is from the Bureau itself, with, as I said earlier, a span of perspective. What ties you together here is essentially the idea that wrong or badly defined investigative priorities in this kind of situation are almost as bad as none at all. And you are all personally or professionally invested in how well ICE operates in the interest of national security, either as professionals whose work is connected to ICE or as private citizens who, like all of us, are affected by national security interests. So from each of your respective vantage points, what would you put forth as the single most important reform that ICE can implement now in order to effectively make national security an investigative priority? Dr. Ryan. Well, I will just start by going back to my testimony that the priority should be that ICE should set up its own vision and mission statement, and it should be shared with everyone in the organization, and it should be made public, so I, Joe Q. Citizen, can know what my government agency called ICE is doing for me. Ms. Daniel. Ms. Fredrickson. Ms. Fredrickson. One of the things that the ACLU likes to say is that we don't have to make a tradeoff between our security and our civil liberties, and I think that the ideological exclusion provision in the law really demonstrates how wrong headed some of these provisions can be in actually undermining American freedom and undermining the exchange of ideas; that it can actually help us hopefully to win the hearts and minds of people in the Middle East. So I think what I would suggest is that I think that the agencies really need to assess at what point we make that balance or when tradeoffs need to be made, and I think those kinds of decisions need to be scrutinized very, very carefully because I think that the tendency has been certainly since September 11th to lean way too far to the side of sacrificing our civil liberties with very little security benefits to show for it. Ms. Daniel. Mr. Webber. Mr. Webber. Dr. Ryan's testimony I think provides a lot of insight. I think the agency needs to, although it is 3 years old now, it needs to get back to basics. It needs to get back to a clear cut mission, clear cut jurisdiction, clear cut priorities, and communicating it to all employees. Ms. Daniel. Thank you. Mr. Shays. As I have been thinking about this panel, I think the points are so basic, it is almost like what do you say again? I can ask you to say it 100 different ways, but I would like to say that my view is obviously, as also pointed out to me, if you set the wrong priorities, that is probably worse than having any priority. But clearly, it is kind of basic, Dr. Ryan, that you would set priorities and that you would make them known to everyone in the agency, and they would work by it, and it would be shared and known by the public. There would be no reason not to, it strikes me. Ms. Fredrickson, I know ACLU likes to say there is no tradeoff between freedom of speech and security, and I had this feeling like that is what you like to say, but the fact that you like to say it doesn't make it true. And, because I think there is constant tradeoffs, and I would love to just explore that a little bit with you. I feel I am being asked to make decisions every day about how far we go and backing off or go forward a little bit more that would tend to threaten speech. Is it that we basically think that speech is so important that there will never need to be a tradeoff? Ms. Fredrickson. Well, there are obviously some restrictions that exist in the law that are based on specific needs that are defended by specific types of examples and evidence. And those clearly need to exist. You know don't yell fire in a crowded theater; right? There are things that do actually make a lot of sense in terms of protecting us in a variety of ways. Mr. Shays. Right. Ms. Fredrickson. However, it is a fundamental value and a fundamental right in this country that is protected by the first amendment, and I think it is critically important that as we review new legislation and look at policies that are coming out of the agencies, we always remember that is the backbone of the American republic; that is what really defines us. And so we do live in a time when people feel like there is some danger at hand, but those are the times in this country when we have been at war or in other circumstances, and we have made the deepest incursions into civil liberties. Mr. Shays. You don't think we are in danger now? Ms. Fredrickson. I am not suggesting that. I am saying that at times of war and other circumstances---- Mr. Shays. Right. Ms. Fredrickson [continuing]. There has been a tendency in this country to take the actions that we have most regretted in terms of our civil liberties. You only need to talk about the Japanese Americans to think about what are the possibilities of going too far down that road, and we really need to be very careful at not overreacting and really undermining the very reason that the United States is such a profound beacon for the world. Mr. Shays. Right. But your basic point that I am hearing is that, in your judgment, we are doing some pretty dumb things that threaten our speech and are a waste of our time and energy. That would be a basic point that you would make, and you used it with one example. Ms. Fredrickson. Well, I think that the Ramadan case is a very clear cut example. Mr. Shays. Right. And you---- Ms. Fredrickson. And that's an absurdity, but, you know, from the ACLU's point of view, we raise very strong concerns about the current version of the Patriot Act that passed. We are very disturbed by the President's authorization of surveillance in violation of Foreign Intelligence Surveillance Act. Mr. Shays. Right. Ms. Fredrickson. The use of torture and other types of abuse at Guantanamo. I mean there are a whole range of areas where we do think that the actions that have been taken are not consonant with our fundamental values as a Nation and actually have done little to enhance our national security, and in some cases, I would actually argue have damaged it by really undermining our ability to reach people in the Middle East and to talk to others and have a dialog about democracy and the value of human rights and civil liberties. Mr. Shays. All right. Mr. Webber, I wondered if you can elaborate a little bit, because it is almost so absurd. Is it your contention that basically when you were told the story of, you know, what do we need, you were there? Mr. Webber. I---- Mr. Shays. You know what do we need? A PowerPoint? Was the inference of the individual saying it that Assistant Secretary, you know, guys, let's just get our hands dirty and let's just get on with it? Or what came across was just this almost belittling of even having to set priorities and to have a clear understanding of where we are headed. I mean was there any reason? I am just curious why no one like said, hello, what do you mean, boss? Explain to me. I mean we are not going to set priorities. I mean I wonder if you had said that to him, he would have said, of course, I am not saying that. In other words, is this a fair description of what happened, because, if it is, it is a real indictment. Mr. Webber. Sir, it is more than fair. It is a quote. I asked the question, and I framed it, and I think in a positive way, you know, let's roll up our sleeves. Let's carve out a mission statement. Let's carve out priorities. And I think I was---- Mr. Shays. And you actually talked about carving out priorities? Mr. Webber. Yes, sir, specifically. Mr. Shays. OK. Mr. Webber. And the response was in a very condescending way, will you need a PowerPoint, as if don't you understand---- Mr. Shays. And then what happened? Mr. Webber. And then that was the end---- Mr. Shays. Now, were you so taken back, you weren't inclined to pursue it more. I mean---- Mr. Watt. Well, other---- Mr. Shays [continuing]. I mean like say, you know, hello. No, I don't want a PowerPoint. I just want us to set some priorities here. I mean I don't know how you would have said it, but---- Mr. Webber. Well, actually there were several other SACs engaged in the conversation as well, and followup questions, and another response we would typically could get was, you know, we haven't shut anything down. You know, what are the priorities? Well, we haven't shut anything down. Mr. Shays. So, in other words, we got to keep doing what we are doing? Mr. Webber. Correct. We were continually pressing for what is the mission. I mean unfortunately and again the budget was a big problem, but you have two different cultures, and, you know, there was an inclination by some to stay in their comfort zone. There were Customs agents that didn't want to pursue immigration violations; immigration agents didn't want to pursue customs violations. And training I think was a critical component. We didn't have the money for it. And co-location. We still had people in different buildings. But if, at a minimum, if we could communicate this is the mission. These are the priorities, and this is what is expected of you. No one showed up at today's hearing with an investigative strategy. No one showed up with here is the roadmap. That is what we pursued, and, yes, in a very belittling way. It was, don't you get it? You need a PowerPoint? The same with the incidents I discussed relative to--there was open criticism of the legacy customs: you spend too much time on drug cases. But when pressed, what is the right amount of time? And where to reinvest the savings? There were no answers. Mr. Shays. So how did you react to Mr. Schoch's testimony? Mr. Webber. Well, I actually like Bob quite a bit, and Bob is in difficult position. It is nice to be here as a citizen. No one edited my presentation, and tonight I can only get debriefed by my wife. So it is a little bit different I think. But I looked at Mr. Schoch's written testimony and some of which he didn't cover in his oral testimony, but it repeatedly talks about we task the SACs to conduct a threat assessment on financial, on smuggling, and we task the SACs. What is missing in the equation, from my view is the leadership from headquarters. Where is that national threat assessment, and where are the national priorities? I would also strongly argue as a SAC that there needs to be some flexibility for local threats. But you should be held accountable for what you use your resources for. Mr. Shays. How did you react, Ms. Fredrickson, to his testimony? Ms. Fredrickson. It makes a lot of sense to me. Mr. Shays. No, not what Mr. Webber said, but what Mr. Schoch said? Ms. Fredrickson. To Mr. Schoch---- Mr. Shays. I am going to ask you the same thing, Dr. Ryan. Ms. Fredrickson. Well, I guess I was most clearly interested in his answer to Mr. Van Hollen's question about the Ramadan case. I was a little disappointed that he really didn't come anywhere close to providing an answer for that. I think there really is not a defensible answer in this case for excluding Mr. Ramadan, and I think it would be very hard to come up here and tell you that there were such an answer. So I think it was a little disappointing, but understandable from his point of view I guess. Mr. Shays. Yes. Beyond that issue. Any other point? Any other reaction? Ms. Fredrickson. I mean we are not primarily in the business of risk assessment and so forth and making those kinds of determinations about governmental resources. So I would want to defer to---- Mr. Shays. Well, you know, I was thinking, though, actually, you should be, because really what one of your messages to us is, as I am hearing it, don't strain out gnats and swallow camels. In other words, while you are worrying about Mr. Ramadan, you are not worried about other things. I would think that is kind of your message to us, not that you shouldn't be worried about anything, but that your priorities are wrong. Get your priorities right, which says to me that you have to be interested in what their priorities are in order to have a comfort level that they have it right. You know what I am saying? Ms. Fredrickson. Yes. And certainly, to some extent, that is a fair assessment of our position in that we don't think that these are avenues that should be pursued because they don't actually enhance our national security, but beyond that, how the priorities are made between different types of threats that actually do challenge our national security, I would have to defer to the experts on that. Mr. Shays. See what is interesting to me is that we have had hearings on the whole issue of declassification and over- classification and pseudo-classifications, and you all caught my interest when you said you didn't read the report, and I asked staff what they sent you, and they sent you this one page, and on the top of it is written law enforcement sensitive. Well, this is not a secret document. It doesn't have to follow any of the rules. They just stamped it as law enforcement sensitive, which means that when GAO looks at something law enforcement sensitive, they have to stamp it as law enforcement sensitive, which means that somehow you are not allowed to look at this, even though it doesn't require a classified security background in order to look at it. It is their own document that they basically said you can't see, which is really curious as hell to me. Dr. Ryan. Dr. Ryan. In response to that or in response to---- Mr. Shays. Well, I do want to first in terms of what Mr. Schoch said. I am curious as to how you reacted to what he said. Dr. Ryan. What I think is interesting is what was not said. Mr. Shays. Right. Dr. Ryan. Obviously, the GAO report came out and they were recommending a series of things that I am hear him saying we are looking upon them favorably. So what is favorably to look at it upon. I mean they were not specific in his--his responses were not specific. Mr. Shays. OK. How about this issue? Dr. Ryan. I think it is quite interesting--my background is law enforcement sensitive--and I read that one page. It is a management document. I don't think there was anything controversial. I mean I guarantee if I read the report right now, I would not be shocked that someone else in the world is going to find out this super secret information. Mr. Shays. That I saw and what staff saw, there is no reason why you all couldn't have been able to read it, and it would have been helpful to have had you read it, and what I probably should have done is been aware of it, and I probably could have given it to you. Staff might have been more on questionable grounds. But it does raise, you know, some real issues about priorities and what we are protecting and who we are protecting them from. My general view is that the problems we see in homeland security are not that we brought together the parts of 22 agencies and 180,000 people. It is really the ability of people to take this opportunity, as I would call it, and make it into something that can be more productive, and not because we never should have done it in the first place. I mean I have no problem with Customs and INS investigative being together. It seems logical to me, and it seems to me there could be synergies and so on. You are not in your head, Mr. Webber, do you disagree or-- -- Mr. Webber. No, sir. I agree. Mr. Shays. OK. Mr. Webber. I agree. Mr. Shays. OK. Yes. Mr. Webber. If I may, sir, I think what is missing is we haven't capitalized on that synergy. Mr. Shays. Yes. Mr. Webber. I think there is some great potential there. Mr. Shays. Any last point that any of you would like to make. There may have been something in your testimony you want to emphasize and so on. Dr. Ryan. You had made a comment earlier about my comments being so logical. I am sorry they are. And it is so simple that one thing I did do is I gave you in my written testimony a copy of the San Diego Police Department's vision and mission statement. You can go to their Web site and you can find it. I went to DHS' Web site, and I found their mission statement. I went to ICE's Web site, and I did not find a mission statement. Mr. Shays. You know what? I was thinking as you were speaking, I was curious to know if Mr. Schoch would stay and listen to your testimony. Sometimes Department heads stay and listen to what the next panel says. And I wish he had, and I would have liked to have brought him up here. So I think what I will ask the staff to do, the professional staff, is to write a letter just based on that one comment that you ended up with and say that is what we found; it is based on your points, Mr. Webber, as well; that these are pretty basic stuff, and I really should have asked him exactly for that and why it isn't on--available on the Web and so on. Why we aren't seeing that very clearly delineated. You follow what the point is? Just basically your point: This is the San Diego Police Department? Dr. Ryan. Yes, it is in the document. Mr. Shays. Right. From your own statement, we will take that and ask how come we are not seeing it here? Is it they don't have the capability; that they have done it and clearly just choose not to share it? Why not? Any other comment? Ms. Fredrickson, any? Ms. Fredrickson. No, I would just like to thank you for holding this hearing. Mr. Shays. It was nice to have all three of you. Thank you, Mr. Webber, as well. Take care. Mr. Webber. Thank you. Mr. Shays. With that, this hearing is adjourned. [Whereupon, at 4:05 p.m., the subcommittee was adjourned.] <all>