<DOC>
[108th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:91049.wais]
VISA REVOCATIONS: CATCHING THE TERRORISTS AMONG US
=======================================================================
HEARING
before the
SUBCOMMITTEE ON NATIONAL SECURITY,
EMERGING THREATS AND INTERNATIONAL
RELATIONS
of the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
JUNE 18, 2003
__________
Serial No. 108-84
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
______
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WASHINGTON : 2003
____________________________________________________________________________
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COMMITTEE ON GOVERNMENT REFORM
TOM DAVIS, Virginia, Chairman
DAN BURTON, Indiana HENRY A. WAXMAN, California
CHRISTOPHER SHAYS, Connecticut 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
MARK E. SOUDER, Indiana CAROLYN B. MALONEY, New York
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
DOUG OSE, California DENNIS J. KUCINICH, Ohio
RON LEWIS, Kentucky DANNY K. DAVIS, Illinois
JO ANN DAVIS, Virginia JOHN F. TIERNEY, Massachusetts
TODD RUSSELL PLATTS, Pennsylvania WM. LACY CLAY, Missouri
CHRIS CANNON, Utah DIANE E. WATSON, California
ADAM H. PUTNAM, Florida STEPHEN F. LYNCH, Massachusetts
EDWARD L. SCHROCK, Virginia CHRIS VAN HOLLEN, Maryland
JOHN J. DUNCAN, Jr., Tennessee LINDA T. SANCHEZ, California
JOHN SULLIVAN, Oklahoma C.A. ``DUTCH'' RUPPERSBERGER,
NATHAN DEAL, Georgia Maryland
CANDICE S. MILLER, Michigan ELEANOR HOLMES NORTON, District of
TIM MURPHY, Pennsylvania Columbia
MICHAEL R. TURNER, Ohio JIM COOPER, Tennessee
JOHN R. CARTER, Texas CHRIS BELL, Texas
WILLIAM J. JANKLOW, South Dakota ------
MARSHA BLACKBURN, Tennessee BERNARD SANDERS, Vermont
(Independent)
Peter Sirh, Staff Director
Melissa Wojciak, Deputy Staff Director
Rob Borden, Parliamentarian
Teresa Austin, Chief Clerk
Philip M. Schiliro, Minority Staff Director
Subcommittee on National Security, Emerging Threats and International
Relations
CHRISTOPHER SHAYS, Connecticut, Chairman
MICHAEL R. TURNER, Ohio
DAN BURTON, Indiana DENNIS J. KUCINICH, Ohio
STEVEN C. LaTOURETTE, Ohio TOM LANTOS, California
RON LEWIS, Kentucky BERNARD SANDERS, Vermont
TODD RUSSELL PLATTS, Pennsylvania STEPHEN F. LYNCH, Massachusetts
ADAM H. PUTNAM, Florida CAROLYN B. MALONEY, New York
EDWARD L. SCHROCK, Virginia LINDA T. SANCHEZ, California
JOHN J. DUNCAN, Jr., Tennessee C.A. ``DUTCH'' RUPPERSBERGER,
TIM MURPHY, Pennsylvania Maryland
WILLIAM J. JANKLOW, South Dakota CHRIS BELL, Texas
JOHN F. TIERNEY, Massachusetts
Ex Officio
TOM DAVIS, Virginia HENRY A. WAXMAN, California
Lawrence J. Halloran, Staff Director and Counsel
Thomas Costa, Professional Staff Member
Robert A. Briggs, Clerk
David Rapallo, Minority Counsel
C O N T E N T S
----------
Page
Hearing held on June 18, 2003.................................... 1
Statement of:
Ford, Jess T., Director, International Affairs and Trade
Division, U.S. General Accounting Office; Catherine Barry,
Managing Director, Office of Visa Services, Bureau of
Consular Affairs, U.S. Department of State; Jayson P.
Ahern, Assistant Commissioner, Office of Field Operations,
Bureau of Customs and Border Protection, U.S. Department of
Homeland Security; Charles H. DeMore, Interim Assistant
Director for Investigations, Bureau of Immigration and
Customs Enforcement, U.S. Department of Homeland Security;
and Steven C. McCraw, Inspector Deputy Assistant Director
of Intelligence, Federal Bureau of Investigation........... 12
Letters, statements, etc., submitted for the record by:
Ahern, Jayson P., Assistant Commissioner, Office of Field
Operations, Bureau of Customs and Border Protection, U.S.
Department of Homeland Security:
Information concerning improved Visa revocation and
TIPOFF procedures...................................... 88
Prepared statement of.................................... 41
Barry, Catherine, Managing Director, Office of Visa Services,
Bureau of Consular Affairs, U.S. Department of State,
prepared statement of...................................... 34
DeMore, Charles H., Interim Assistant Director for
Investigations, Bureau of Immigration and Customs
Enforcement, U.S. Department of Homeland Security, prepared
statement of............................................... 49
Ford, Jess T., Director, International Affairs and Trade
Division, U.S. General Accounting Office, prepared
statement of............................................... 15
Grassley, Hon. Charles E., a Representative in Congress from
the State of Iowa, prepared statement of................... 9
Maloney, Hon. Carolyn B., a Representative in Congress from
the State of New York, prepared statement of............... 7
McCraw, Steven C., Inspector Deputy Assistant Director of
Intelligence, Federal Bureau of Investigation, prepared
statement of............................................... 55
Shays, Hon. Christopher, a Representative in Congress from
the State of Connecticut, prepared statement of............ 3
VISA REVOCATIONS: CATCHING THE TERRORISTS AMONG US
----------
WEDNESDAY, JUNE 18, 2003
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 12:17 p.m., in
room 2154, Rayburn House Office Building, Hon. Christopher
Shays (chairman of the subcommittee) presiding.
Present: Representatives Shays, Janklow, Kucinich, Maloney,
Sanchez, and Bell.
Staff present: Lawrence Halloran, staff director and
counsel; J. Vincent Chase, chief investigator; R. Nicholas
Palarino, senior policy advisor; Thomas Costa and Kristine
McElroy, professional staff members; Robert A. Briggs, clerk;
Chris Skaluba, fellow; David Rapallo, minority counsel; Earley
Green, minority chief clerk; and Cecelia Morton, minority
office manager.
Mr. Shays. Good morning. A quorum being present, the
Subcommittee on National Security, Emergency Threats and
International Relations hearing entitled, ``Visa Revocations:
Catching the Terrorists Among Us'' is called to order.
We are a welcoming Nation. But those from around the world
who would visit the United States must ask permission to come
here. They apply for a visa. When they do, we have the
sovereign right, and the sworn duty, to deny entry to anyone
who might pose a threat to our security. Today we ask: If a
visa is issued erroneously, or before disqualifying information
on possible terrorist connections is obtained, what happens
then?
The answer: Too little. Revocation of a visa remains a
trifurcated bureaucratic shuffle with little imperative for
corrective action. The Departments of State, Homeland Security,
referred to as DHS, and Justice bring disparate practices,
informal customs, and clashing cultures to what should be a
seamless process. As a result, one available screen against
potentially violent invaders remains dangerously porous,
leaving Americans avoidably vulnerable to terrorists in our
midst.
In an earlier report on visa screening as an antiterrorism
tool, the General Accounting Office [GAO], found some aliens,
whose visas had been revoked on terrorism grounds, might have
entered the United States anyway. So the subcommittee, joined
by Senator Charles Grassley of Iowa, asked GAO to look more
closely at the strengths and weaknesses of the post-September
11th visa revocation process.
The GAO findings released today describe limited progress
and systematic problems. While law enforcement and intelligence
data is being forwarded to the State Department's electronic
watch list more routinely, the Department often shares
information on visa revocations slowly and inconsistently, if
at all.
DHS immigration officials may not know they are admitting
someone on a revoked visa. The FBI has no legal or operational
incentive to pursue aliens on the basis of a revoked visa
alone. It is not even considered a counter-terrorism matter.
The legal, procedural, and technical relics of a simpler
age hamper those involved in issuing visas, controlling entry
to the United States, and monitoring foreigners among us. A
reason good enough to deny applicants' entry into the United
States is not sufficient cause to remove them once they are
here. Even when notifications are timely, visa revocation
actions are faxed or cabled, leading to downstream errors and
misinterpretation. Suspicions about terrorist connections are
not always detailed in the revocation notice, making it
difficult to pursue removal under immigration laws.
So what is the product of this disjointed approach to visa
revocations? GAO concludes 30 or more people who should not
have been admitted to the United States due to terrorism
concerns may still be among us, undetected and undeterred.
Immigration screens have to be as strong as the global
enemy they are meant to catch. Twenty-one months after the
September 11th attacks, revocation of a visa has to be more
than a paper process, a ``file and forget'' exercise. All the
September 11 terrorists had visas. If the next Al Qaeda cell
manages to get in, they should not breach our shores carrying
revoked entry documents. To be effective as an antiterrorism
tool, visa revocations have to be timely, well founded,
consistently posted to watch lists, and acted upon by law
enforcement officials until the foreigner's status is
determined.
Today, the GAO, State Department, DHS representatives, and
the FBI will sit as one panel to help us examine the visa
revocation process in a detailed and constructive way. We are
grateful for their participation, their patriotism, and their
dedication to public service. We look forward to their
testimony.
[The prepared statement of Hon. Christopher Shays follows:]
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Mr. Shays. I welcome our witnesses. They are: Jess T. Ford,
Director, International Affairs and Trade Division, U.S.
General Accounting Office; Catherine Barry, Managing Director,
office of Visa Services, Bureau of Consular Affairs, U.S.
Department of State; Jayson P. Ahern, Assistant Commissioner,
Officer, Office of Field Operations, Bureau of Customs and
Border Protection, U.S. Department of Homeland Security;
Charles H. DeMore, Interim Assistant Director for
Investigations, Bureau of Immigration and Customs Enforcement,
U.S. Department of Homeland Security; and Steven C. McCraw,
Inspector Deputy Assistant Director of Intelligence, Federal
Bureau of Investigation.
At this time, I would ask you to stand and be sworn in.
Also, if there is anyone that may need to testify, please stand
as well.
[Witnesses sworn.]
Mr. Shays. All witnesses have responded in the affirmative.
Mrs. Maloney, do you have any statement?
Mrs. Maloney. Very briefly, Mr. Chairman.
I really want to thank you, Mr. Chairman, for having this
incredibly important hearing. Nearly 2 years ago we faced the
worst attack against our homeland in the history of this
Nation. The tragic events of September 11th and the city I
represent, once again put the inadequacies of the visa issuing
and tracking system into the spotlight.
I must say that we all know that the hijackers who flew
those planes into the World Trade Center, the Pentagon, and the
plane that went down in Pennsylvania, were all legally in the
United States with temporary visas despite the immigration laws
that specifically prohibit terrorists from being admitted into
this country.
When Congress established the new Department of Homeland
Security, it attempted to improve the process of issuing visas
by giving the DHS the responsibility for approving immigrant
petitions and for inspecting everyone who enters the United
States. However, we have learned that things have not improved.
Information sharing is critical if we are going to have an
effective system for determining which visas should be issued,
and to whom, and for ensuring that we know for what purpose
those individuals have entered the United States.
But if the Customs Service, the INS, the States, and others
are all having different systems, it is difficult for me to
believe that potential terrorists are not slipping through the
cracks. Additionally, we must ensure that foreign students who
enroll in American universities complete their course work and
do not abuse the system by using student visas as a cover for
terrorist activity.
We know that another terrorist attack will occur somewhere
in America in the future. While each local community, city, and
State may be a target, New York, the area that I represent, and
my constituents know first hand the horror and devastation that
results when terrorists, who have no regard for human life, are
allowed into this country and conduct their training activities
unnoticed.
Since September 11th, we have made protecting the homeland
a top priority. I believe that one of the most basic things
that we can do to prevent another attack is to stop terrorists
from entering the
country. Therefore, I deeply thank the chairman for holding
this hearing today about this critically important issue. I
look forward to the witnesses' testimony.
Thank you.
[The prepared statement of Hon. Carolyn B. Maloney
follows:]
[GRAPHIC] [TIFF OMITTED] T1049.003
Mr. Shays. I thank the gentlelady.
Mr. Bell, I believe you have a statement you want to put on
the record.
Mr. Bell. Thank you, Mr. Chairman.
I, too, would like to thank you for calling this hearing on
such an important issue concerning the security of our Nation.
In response to the attacks of September 11th, President Bush
made commitments to consolidate and integrate the operability
of the numerous watch lists that monitor terrorist activity
within our borders. However, these commitments made by the Bush
administration have gone largely unfulfilled, according to
recent GAO testimony before this subcommittee.
GAO has reported that nine Federal agencies still maintain
12 different terrorist watch lists. Transparency between
Federal agencies with oversight has not been implemented
satisfactorily. If we are to strive for the continued security
of ports of entry to our country, there must be an elevated
level of communication between these agencies of national
oversight.
Additionally, immigrants with visas that have been revoked
due to suspicion of terrorist activity must be part of common
interdepartmental watch lists, located and removed immediately.
It is incumbent upon us, if our national security is to be
preserved, to move beyond making commitments. We must take
definitive action. Since September 11th, despite heightened
standards used in visa applications and screening, background
checks remain inconsistent from department-to-department.
Communication between agencies, such as the State
Department, consular offices, the Department of Homeland
Security, and other agencies that are involved in issuing
visas, must be increased if we are to forestall potential
terrorist attacks. We must be dedicated to protecting the lives
of the American people.
Mr. Chairman, I submit that now is the time. I would hope
that today's witnesses can adequately address the concerns
facing our national security. Again, thank you for calling this
hearing.
Mr. Shays. I thank the gentleman.
Let me just say before calling on our witnesses, I see
folks standing up. Any students or any staff who want to sit in
the last few chairs on either end of what we have up here, can.
If you are a student, an intern, or staff, please feel free to
sit in the seats at the end there.
I ask unanimous consent that all members of the
subcommittee be permitted to place an opening statement in the
record and that the record remain open for 3 days for that
purpose.
Without objection, so ordered.
I also ask for unanimous consent to insert a statement from
Senator Charles Grassley of Iowa. Senator Grassley was a co-
requestor of this GAO report under discussion today. He has a
statement which will be put in the record.
Without objection, so ordered.
[The prepared statement of Hon. Charles E. Grassley
follows:]
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Mr. Shays. I thank our witnesses for their patience. We had
votes, and that really interrupted us. All witnesses'
statements will be included in the record in their entirety. My
request is that you be as close to 5-minutes as possible. If
necessary, we will set the clock for another 5 minutes.
Following the testimony, I believe we will have a healthy
discussion.
We want to determine what the problem is, what the solution
is, and then get on with our lives.
Mr. Ford.
STATEMENT OF JESS T. FORD, DIRECTOR, INTERNATIONAL AFFAIRS AND
TRADE DIVISION, U.S. GENERAL ACCOUNTING OFFICE; CATHERINE
BARRY, MANAGING DIRECTOR, OFFICE OF VISA SERVICES, BUREAU OF
CONSULAR AFFAIRS, U.S. DEPARTMENT OF STATE; JAYSON P. AHERN,
ASSISTANT COMMISSIONER, OFFICE OF FIELD OPERATIONS, BUREAU OF
CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND
SECURITY; CHARLES H. DEMORE, INTERIM ASSISTANT DIRECTOR FOR
INVESTIGATIONS, BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT,
U.S. DEPARTMENT OF HOMELAND SECURITY; AND STEVEN C. MCCRAW,
INSPECTOR DEPUTY ASSISTANT DIRECTOR OF INTELLIGENCE, FEDERAL
BUREAU OF INVESTIGATION
Mr. Ford. Thank you, Mr. Chairman, and members of the
subcommittee. I am pleased to be here to discuss our report,
which we are issuing today, on the need for new policies and
procedures to fill gaps in the visa revocation process. Our
report calls for new policies and procedures to ensure that
when the State Department revokes a visa because of terrorist
concerns, homeland security and law enforcement agencies that
protect our country are promptly notified of this information,
and take appropriate action.
Since the September 11th attacks, the State Department's
Bureau of Consular Affairs has been receiving an increased
volume of information from the intelligence community, law
enforcement agencies, and other sources on suspected
terrorists. In some cases, the Department decided to revoke
visas of certain individuals when it received potentially
derogatory information on them after issuing the visas. This
issue was raised in our October 2002 report which was referred
to earlier.
At your request, Mr. Chairman, and that of Senator
Grassley, we evaluated the effectiveness of the visa revocation
process and how it is being used as an antiterrorism tool. Our
work focused on all 240 of the State Department's visa
revocations on suspected terrorist grounds from September 11,
2001, through December 31, 2002.
Our analysis shows that the visa revocation process could
be used more aggressively to prevent suspected terrorists from
entering the country, and to alert homeland security and law
enforcement agencies that individuals who entered before their
visas were revoked, might be security risks. However, we found
that in practice the process broke down when information on
visa revocations was not shared between the State Department
and appropriate immigration and law enforcement offices.
It broke down even further when individuals in question had
already entered the United States prior to revocation. INS and
the FBI were not routinely taking actions to investigate,
locate, or resolve the cases of individuals who remained in the
United States after their visas were revoked. Depending on the
results of these investigations, the cases could be resolved by
clearing persons who were wrongly suspected of terrorism,
removing suspected terrorists from the country, or prosecuting
suspected terrorists of criminal charges.
In our review of 240 visa revocations, we found numerous
cases where notification of the revocation did not reach the
appropriate units within the INS or the FBI and cases where
lookouts were not posted to the agency watch list of suspected
terrorists. We also found evidence that individuals whose visas
were revoked because of terrorist concerns entered the United
States and may still remain in the country.
Additionally, the INS and the FBI were not routinely taking
actions to investigate, locate, and resolve these cases. I
would like to expand on these weaknesses and the process, and
then comment on the U.S. Government's lack of a specific policy
on visa revocations.
Mr. Chairman, we have prepared two charts that are on my
right. The first chart depicts the flow of information between
the State Department's Bureau of Consular Affairs, its overseas
post, and the INS Inspection Unit, which is now part of DHS,
the INS National Security Unit, which is now part of DHS, and
the FBI and its component organizations.
As shown in the first chart, the top box shows the extent
of communication on visa revocations between the State
Department's Bureau of Consular Affairs and State's overseas
consular posts. We found that State had not consistently
followed its informal policy of entering a lookout into its
Class Lookout System at the time of revocation. Without a
lookout, it is possible that a new visa could be issued without
additional security screening.
We reviewed class records on all 240 individuals whose
visas were revoked, and found that the State Department did not
post lookouts within a 2-week period on 64 of these
individuals.
The second box depicts information flow on revocations
between the State Department and the INS Inspection Unit. The
INS Inspection Unit is the unit that posts the information on
the INS lookout system, which goes to the border agents at
ports of entry. It is supposed to alert the border agents to
prevent potential terrorists from entering the United States.
Officials from this Unit told us that they had not received
any notification of revocations from the State Department in 43
of the 240 cases. That is listed on the first bullet on the
second chart. In another 47 cases, the Unit did not receive
information on the revocation on a timely basis. On average, in
these 47 cases, it took 12 days for the revocations to reach
the Unit.
On a positive side, when notifications were received, INS
agents were able to stop 14 individuals from entering the
country. However, once persons enter the United States and have
their visas revoked, INS border agents are not able to take
action. We found 30 cases where persons had entered the country
and may still be here, even though their visas had been
revoked. Neither the INS's National Security Unit, which is
responsible for investigating these cases, nor the FBI
routinely investigated these 30 cases. A key reason was the
weakness in the information flow between the State Department,
the INS, and the FBI, and within units of each of those
agencies.
This is depicted in the third box on the first chart which
shows the information that is supposed to flow from the State
Department to the FBI units and to the Investigative Unit of
the INS. INS officials also told us that they generally do not
investigate these cases because it would be challenging to
remove these individuals unless they were in violation of their
immigration status, even if they could locate them. As a
consequence, in most cases the INS and the FBI did not
investigate the whereabouts of the individuals who entered the
United States and had their visas revoked.
We believe that the weaknesses that I have just outlined
are the result of the U.S. Government's limited policy guidance
on the visa revocation process. Our analysis indicates that the
U.S. Government has no specific policy on the use of visa
revocations as an antiterrorism tool and no written procedures
to guide State in notifying the relevant agencies of visa
revocation on terrorist grounds.
Moreover, neither the INS nor the FBI had specific policies
or procedures that covered investigating, locating, and taking
appropriate action in cases where the visa holder had already
entered the country.
To remedy these systemic weaknesses in the visa revocation
process, we are recommending that the Secretary of Homeland
Security, who is now responsible for issuing regulations and
administering and enforcing provisions of U.S. immigration law,
in conjunction with the Department of State and the Attorney
General, develop specific policies and procedures for the
interagency visa revocation process, to ensure that the
notification of visa revocations for suspected terrorists and
relevant supporting information are promptly submitted from the
State Department to Immigration and law enforcement agencies,
and that their respective inspection and investigative units
receive this information on a timely basis.
We are also recommending that they develop a specific
policy on actions that immigration and law enforcement agencies
could take to investigate and locate individuals whose visas
have been revoked for terrorism concerns who remain in the
United States after revocation. We further recommend that they
determine if any of the individuals with visas revoked on
terrorist grounds are currently in the United States, and
determine whether or not they continue to pose a security
threat to the United States.
I might add that the Department of Homeland Security
commented on our draft report that they agreed with the thrust
of our recommendations and said that they planned to work with
the State and Justice Departments to improve this process.
That concludes my statement. I would be happy to answer any
questions you may have. I would ask that my testimony be
included in its entirety.
Mr. Shays. Without objection, so ordered.
[Note.--The GAO report entitled, ``Border Security, New
Policies and Procudures Are Needed to Fill Gaps in the Visa
Revocation Process,'' may be found in subcommittee files.]
[The prepared statement of Mr. Ford follows:]
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Mr. Shays. Thank you, Mr. Ford.
Ms. Barry.
Ms. Barry. Thank you, Mr. Chairman. Good morning, and good
morning to the members of the subcommittee. I appreciate the
opportunity to testify today on the subject of visa revocations
and how they fit into our overall strategy of strengthening the
visa process as an antiterrorism tool.
It cannot be stated too often that border security is a
multi-agency mission that requires information sharing,
cooperation, continuous analysis, and procedural review so that
we stay ahead of the people who seek to enter the United States
to do harm to Americans or our foreign visitors.
Since September 11th, and helped by legislation that
required data sharing among Federal agencies, the State
Department's visa officers abroad have access to a data base
more than double the size of what they could consult prior to
that date. We receive extensive records from the FBI and other
Federal law enforcement agencies through our Consular Lookout
and Support System [CLASS]. The TIPOFF program managed by the
Bureau of Intelligence and Research at State, provides highly
classified intelligence agency information on terrorist
threats.
Both of these systems are at the fingertips of consular
officers who adjudicate visa applications abroad. Both are
available to DHS inspectors at ports of entry. Nonetheless,
visa information comes to us in a variety of forms and is not
always available when an applicant presents himself. We use
visa revocations to ensure that already issued visas take
advantage of this information.
There are two forms of revocations. The first category of
revocation is pretty straightforward. We obtain information
that clearly relates to an individual holding a validly issued
U.S. visa, that demonstrates that individual to be ineligible
under one or more provisions of the Immigration and Nationality
Act. The visa is revoked, and the lookout entry is made. Both
can be done by a consular officer abroad, and the matter ends
there if the applicant is overseas.
Many of our revocations fall into the latter category of
being ``prudential.'' We receive information about a person who
may or may not be the person to whom a U.S. visa was issued,
telling us something that may or may not render that person
ineligible for the visa they received.
Since the information, when provided about known or
suspected terrorists, is serious and if true can endanger our
security, we take the necessary precaution of revoking the visa
prudentially. This sort of information about possible
terrorists almost always comes to us from TIPOFF and originates
with U.S. intelligence agencies. It is often vague and
ambiguous, and identifies people with common names often
without other biographic information such as birthdates and
places of birth that could be used for corroboration.
When we revoke a visa prudentially, we want to see the
applicant again so that we can elicit further information that
either confirms the ineligibility and leads to a firm visa
refusal, or discounts it and clears the applicant for solid
visa issuance.
We recognize that the inspector from DHS at the port of
entry is not in the best position to have the time or resources
to interview someone in light of new and normally partial
information that derives from intelligence sources. The DHS
officer can deny admission to the United States to that
individual based on the revoked visa. The consular officer will
then review the case overseas, and readjudicated it in
consultation with appropriate U.S. Government agencies.
A second scenario concerns the admission of an alien to the
United States before a visa was revoked. Such a case must then
be handled by DHS immigration officers. Prior to the creation
of DHS, we alerted the INS Lookout Unit about a prudential
revocation. The INS, of course, has the most pertinent
information as to whether the alien was in the United States.
We now work most directly with the Lookout Unit in the Bureau
of Customs and Border Protection of DHS. The system we have in
place shares information quickly and reliably.
The visa office checked visas revoked from January 1st of
this year to May 31st, revoked by the Deputy Assistant
Secretary of State on a prudential basis, and found that all
are properly in the lookout system with the correct revocation
code. Last year, and in years past, we entered such revocations
into CLASS into what are known as ``quasi-refusal codes.'' We
sent the revocation certificate to INS by fax when we revoked a
visa, and sent a cable to that agency and the FBI as a
secondary means of notifying them of this action.
The language of the revocation certification which informs
the alien and other relevant U.S. Government agencies that the
visa is no longer valid, was written in consultation with the
then-INS and the Department of Justice. Last summer we became
aware of the fact that port-of-entry inspectors did not have
access to the quasi-refusal for a suspected terrorist.
Recognizing this vulnerability, we created the revocation
code that we now enter into CLASS which does transfer
information automatically in virtual real time to DHS via the
IBIS system. Such an entry immediately allows a port-of-entry
inspector to know that a visa presented for admission has been
revoked. Unfortunately, the change in procedure was not
communicated effectively within the Visa Office to all
pertinent parties until December of last year when we began
using this revocation code in all cases.
This gap only affected prudential revocations since the
revocation based on a known visa ineligibility would be
accompanied by a CLASS entry based on the underlying ground for
the visa refusal, and would be available via IBIS in any event.
Nonetheless, it was a gap that perhaps represented a carry over
from the previous informal system of communication that we
regret, but which we have now corrected.
The use of the revocation coding class not only promptly
notifies other of the potential need for action if the subject
of the revocation attempts to or has already entered the United
States, but also allows for transparency in our data collection
and auditing. We can now review revocation data, and know the
numbers of revocations and the reasons they were revoked. Our
partnership with DHS in this area has been greatly improved by
these system changes, and the previous informal system is now a
thing of the past.
Finally, let me discuss the specific cases that were
reviewed by the GAO and led to the report that we are here to
discuss. While they were not free from the improvised nature of
our old procedures, I believe they demonstrate how cautiously
we proceed when there is the slightest risk of a terrorist
connection to a visa applicant.
First is the 105 cases that the GAO first identified in
their October report. Much newspaper ink has been spilled,
exaggeratedly claiming that the subjects of these revocations
are suspected terrorists. In fact, all of these subjects have
since been cleared by the FBI and some have been reissued
visas. Some of the affected people were turned away at U.S.
ports of entry and some were able to enter the United States in
spite of the revocation.
To date, we have received no information from law
enforcement indicating that any of these applicants was ever a
terrorist or a threat to U.S. national security. None of their
names ever applied in CLASS, as eligible on terrorism, or any
other ground of refusal. In fact, the incident was entirely due
to the difficulty we experienced when first instituting the
``Visas Condor'' interagency screening program for visa
applicants. The workload stressed the resources of
participating agencies for several months last year.
The remaining 135 revocations were based on information
that we learned via TIPOFF entries from the intelligence
community. Whenever we receive new TIPOFF entries, we run the
names against our data base of issued visas to ensure that we
have not previously approved a visa to someone who should not
be allowed to enter the United States. We revoke any such visas
prudentially to stop the applicant from traveling to the United
States and to allow for resolution of the case in any
subsequent application.
These cases, since they refer back to specific information
about known or suspected terrorists, are potentially very
serious, but they are complicated by the same vagueness about
identity and ineligibility that accompany the use of incomplete
information. Our practice is to revoke the visa if there
appears to be a link between the intelligence report and the
visa holder.
Today, modern computerized systems give us the chance to
apply even partial knowledge to our advantage by allowing us to
review historical data on issued visas. We continue to refine
our procedures, and to enhance data share concerning data on
lookouts and visa holders with other Federal agencies.
The tragedy of September 11th strengthened the resolve of
the Department of State to take every step within our authority
to safeguard our borders and spurred us to think through
improvements in our procedures for visa work. We work
cooperatively every day with DHS and the FBI on numerous border
security programs and have mutually improved many of these
programs.
We remain vigilant in looking for further enhancements and
have redoubled our efforts to improve the performance of
consulate officers overseas and headquarters staff in meeting
our primary goal of secured borders and open doors.
Thank you very much. I would be happy to take your
questions as appropriate. I would ask that my testimony be
included in its entirety.
Mr. Shays. Without objection, so ordered.
[The prepared statement of Ms. Barry follows:]
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Mr. Shays. Thank you, Ms. Barry.
Mr. Ahern.
Mr. Ahern. Good afternoon, Mr. Chairman, and members of the
subcommittee. It is a privilege to be here before you today to
discuss the Bureau of Customs and Border Protection's role in
visa revocations. I would like to take this time to outline key
parts of my written statement.
As you know, on March 1, 2003, inspectors from the
Immigration and Naturalization Service, inspectors from the
Animal and Plant Health Inspection Service, as well as
inspectors from the U.S. Customs Service and the entire Border
Patrol merged to form the Bureau of Customs and Border
Protection [BCBP], within the Department of Homeland Security.
We are resident within the Border and Transportation Security
Directorate.
Now, for the first time in our country's history, all
agencies of the U.S. Government with significant border
responsibilities have been brought under one roof. The priority
mission of BCBP is to prevent terrorists and terrorist weapons
from entering the United States.
BCBP's role in the visa revocation process is to prevent
holders of revoked visas from gaining entry into the United
States. Identifying and preventing the entry of persons
ineligible to enter the United States, in this case because
they have had their visa revoked is the responsibility of BCBP.
BCBP has reviewed the GAO report and its recommendations on the
revocation process.
We believe BCBP has a key role in two of the three
recommendations. One of those recommendations is that the
agency develop specific policies and procedures for the
interagency visa revocations process to ensure that
notification of visa revocations are transmitted in a timely
fashion from the Department of State, to Immigration, now BCBP,
and the law enforcement agencies and their respective
inspection and investigation units.
The other recommendations is that agencies determine if any
persons with revoked visas on terrorism grounds are in the
United States and, if so, whether they pose a security threat.
BCBP has already begun work with the Department of State and
the Bureau of Immigration and Customs Enforcement [BICE], to
address the concerns raised by the GAO report.
We have agreed on perfecting procedures that use an
electronic interface between the Department of State's Consular
Lookout and Support System [CLASS], and our Interagency Border
Inspection System [IBIS], so that revocations get into the
lookout systems immediately. We have agreed on a procedure for
direct notification to BCBP for the Department of State's
revocation cables. We have agreed that BCBP will immediately
verify if there is a lookout on the subject of a visa
revocation.
Further, we will also determine whether the subject of a
revocation has entered the United States and, if so, BCBP will
immediately provide the information to the investigative arm,
BICE. We will continue our discussions with the Department of
State and BICE, both from the operational and the technical
side, to make sure that these procedures are working. Together
we will make sure that the enhancements are in place to ensure
timely agency notification so that revocations get into the
lookout system.
The electronic interface I just mentioned provides the best
solution and a transparent verifiable record of action. In
cases where the Department of State cannot physically notate
the visa and thus render it invalid for travel, we need a
lookout in IBIS to ensure that if the subject arrives at a port
of entry here in the United States, the inspector will know
that the visa is invalid.
As a redundancy, the Department of State sends revocations
by fax or cable to BCBP for entry into the NAILS system, which
is the National Automated Immigration Lookout System. NAILS
interfaces with IBIS as well. In this way we have backup
procedures to ensure that this critical information is
available to our frontline BCBP officers.
Protection of the Nation is the highest priority. It is our
highest duty. We actively seek improvements in our own
practices and work with other agencies to fulfill our mission.
We know that our new agency faces great challenges in merging
the border agencies to fulfill our mission.
But now that all the Federal inspection services and Border
Patrol have been unified within Customs and Border Protection
under the Department of Homeland Security, we are in a far
better position to meet those challenges and accomplish our
goal.
We will be far more effective working together than we were
as separate agencies in different departments. Together we will
learn all we can from our legacy agencies, and we will bring
new innovation to border management. With the continued support
of the President, the Department of Homeland Security, and the
Congress, BCBP will succeed in meeting the great demands placed
upon it. We will play a key role in the Department of Homeland
Security by better securing our border against the threat of
terrorism.
I will conclude at this point. I would be happy to take any
questions later. I would ask that my testimony be included in
its entirety.
Mr. Shays. Without objection, so ordered.
[The prepared statement of Mr. Ahern follows:]
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Mr. Shays. Thank you, Mr. Ahern.
Mr. DeMore.
Mr. DeMore. Mr. Chairman and members of the subcommittee,
thank you for the opportunity today to update you on the Bureau
of Immigration and Customs Enforcement's efforts to combat
terrorism and to explain our role in the visa revocation
process.
No mission of the U.S. Government is more important than
protecting the Nation and the American people against future
terrorist attacks. This mission is paramount to the
responsibilities of the newly created Department of Homeland
Security. The work of BICE is an indispensable part of
fulfilling that mission.
Knowing who has entered and departed from our country in
real time is an important element in enforcing our laws.
Equally important is knowing in real time when the Department
of State, or another Government agency, has developed
information like a visa revocation or other derogatory
information about an individual who has entered but not
departed.
Since September 11th, the law enforcement community has
risen to the challenge of enhancing efficient communication and
collaborating appropriately a national security information-
gathering, intelligence-sharing investigations. I am pleased to
be here today to discuss BICE's role in the investigation of
all referred visa revocation matters.
On May 27, 2003, the GAO presented BICE with its draft
report. We agree with the GAO finding that the Secretary of
Homeland Security should work with the Secretary of State and
the Attorney General to strengthen the visa revocation process
as an antiterrorism tool, and to establish specific policies
and procedures that ensure timely and direct notification of
visa revocations to both the Bureau of Customs and Border
Protection, as well as to BICE.
BICE considers the timely notification of State Department
visa revocations to be an important element in protecting the
United States against the entry of inadmissible aliens,
including possible terrorists. Currently the State Department
provides BICE information on visa revocations to aid in
determining how to proceed on a specific case.
The GAO recommendation that is particularly relevant to
BICE is the one regarding determining if any persons with
revoked visas on terrorism grounds are in the United States
and, if so, whether they pose a security risk. The National
Security Unit within BICE is responsible for investigating all
leads and referrals involving terrorism and national security
matters involving cases where an issued visa has been
subsequently revoked.
In making these determinations during an issued
investigation, BICE coordinates with BCBP to ensure that it has
all appropriate information regarding entries into the United
States. Pursuant to NSU's standard operating policy, visa
revocation cases are investigated and coordinated in the same
manner as all other types of national security cases handled by
that unit. The NSCU has a clearly defined role to investigate
those cases involving aliens who may have entered the country
and either had their visa revoked after admission or were
admitted despite the revocation of their visa.
BICE's records indicate that during the time period studied
in the report, the National Security Unit received information
on 10 leads involving visa revocation. In all 10 cases, the
National Security Unit conducted full field investigations
concluding that there was insufficient evidence under current
civil and criminal immigration law to allow BICE to take action
against those visa holders who were located.
With the release of the GAO report, we are working with our
partners by reviewing additional data to ensure that no other
cases have not been appropriately addressed from an
investigative standpoint. It is important to note that the
information needed to revoke a visa is not necessarily
sufficient for BICE to initiate removal proceedings against an
alien who has been admitted to the United States and is
otherwise maintaining his or her status.
When an alien is admitted to the United States, certain
legal rights are attached to that admission. These legal rights
require that BICE present clear and convincing evidence to
demonstrate before an immigration judge that the alien is a
national security threat or is removable on other statutory
grounds.
Another factor in prosecuting these revocation cases is the
current language used on the revocation certificate when an
alien has been admitted to the United States. The language
states that the visa revocation takes effect only after the
alien departs from the United States. Consequently, the visa
remains valid, and the aliens maintains lawful status while in
the United States, absent any conduct making him or her subject
to removal. We are working with the State Department to
determine if a change in this language would improve our
ability to remove an alien who has been admitted.
Deterring illegal migration and combating immigration-
related crime have never been more critical to our national
security. The men and women of BICE are taking this mission
with diligence, determined to ensure that no duty is neglected,
even as they continue to adjust during this time of transition
to the new Department. We look forward to working with other
DHS components, the Department of Justice, and the Department
of State on strengthening the visa revocation process.
Thank you. I look forward to your questions. I would ask
that my testimony be included in its entirety.
Mr. Shays. Without objection, so ordered.
[The prepared statement of Mr. DeMore follows:]
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Mr. Shays. Thank you, Mr. DeMore.
Mr. McCraw.
Mr. McCraw. Thank you, Mr. Chairman,
First I would like to depart from my written testimony,
with your permission, and ask that it be included in its
entirety.
Mr. Shays. Without objection, so ordered.
Mr. McCraw. I would like to publicly thank you, Mr.
Chairman, and members of the committee for all the support that
you provided the FBI, enabling it, along with its partners, to
prevent acts of terrorism. We appreciate all the support that
you have provided.
Second, I would like to publicly thank the Department of
State and Homeland Security for their support to the FBI and
information sharing. It is happening. Frankly, we could not
function without it. We are very proud to be partners of theirs
in this effort.
I agree with Mr. Ford that the process that he studied was
broken. I do not think there is any question about that.
Perhaps it is my fault as this study went forward to not bring
to GAO's attention that there was a system in place. It has
been in place since 2002. It does address all those issues in
terms of visa revocations as well as other cables. In fact,
there are other parts of the equation, as Congresswoman Maloney
pointed out, that when you are trying to stop terrorists from
getting into the United States, we have to be concerned about
those individuals that come into the United States undetected,
even if they did not have a visa revoked, either through
Canada, Mexico, or a country that does not require visas.
That system would have been put in place in 2002 back when
the Attorney General was tasked to setting up the Foreign
Terrorism tracking Task Force, that we could put in place, that
would be able to stop individuals like Al Midhar and Nawaf Al
Hamzi from coming into the United States, two of the hijackers
of September 11?
That starts with working with State Department information,
recognizing that TIPOFF, for the intelligence community and for
the State Department, is the single point of an indexing system
in terms of individuals who have been linked to terrorism. The
other system is VGTOF and the FBI's NCIC files.
That information has been provided since 2002 to the
Foreign Terrorism Tracking Track Force. When any one of those
individuals who has been linked or identified to terrorism
tries to enter the United States, clearly as Homeland Security
pointed out today, they have NAILS, IBIS, and other systems in
place at the points of entry.
There is also a fail safe system working behind the scenes.
When they do enter the United States, the system allows the
exploitation of data that is available out there, including the
INS data, for example, to identify when they come into the
United States at any given time, no matter whether they came in
on a visa, whether the visa was revoked, or otherwise.
In this situation, of the 240, 105 of those revoked as a
result of delays. I believe those were delays in the FBI in
terms of doing background checks. All of those individuals were
cleared. Out of the 240, there was another 145, 47 of whom who
placed in the TIPOFF data base, which means that there had been
a determination by the intelligence community that in some way,
shape, or form, these individuals were linked, associated, or
had relationships with terrorism.
All 47 of those individuals went through this particular
process. Out of that 47, 8 of those individuals were determined
to have been in the United States at some point in time. In
fact, four of those individuals were pre-September 11 and the
other ones were pre setting up this particular system which
went into effect in January 2002.
I would submit to you, Mr. Chairman, and members of the
committee, that there is a system in place. Thankfully, the
system is in place primarily because of the support of Congress
in terms of funding, and something that was recognized early on
that we have to do something to put in place to stop these
individuals before they get into the United States.
Once they do get into the United States undetected, how do
we know? How can we do that so that we can prevent other like
situations. Granted, it does not take into account every gap
that exists, but clearly it was a glaring gap. It has been
filled, I am proud to point out.
Although redundant, it is important that we have all
processes working effectively. Certainly we in the FBI are glad
to take suggestions from GAO and others to do anything we can
to improve our capabilities and our ability to do the job. We
welcome any constructive criticism.
Thank you, Mr. Chairman.
[The prepared statement of Mr. McCraw follows:]
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Mr. Shays. Thank you, Mr. McCraw.
I thank all of our witnesses. We are going to start out
with the Governor and then go to Mrs. Maloney. We will spend 10
minutes per questioner. We are getting very helpful
information. I am not certain that the committee has a full
sense of where things exist right now, but hopefully before the
end of our hearing, we will know.
Mr. Janklow.
Mr. Janklow. Thank you very much, Mr. Chairman.
For me, the past is prolog. We really were not very well
prepared on September 11, notwithstanding what structures were
in place. Since then there has been a huge amount of activity.
There is a certain amount of growing pains. My sense is that
things get better every day. That is my sense. Are they getting
better fast enough to prevent the one magical problem? We do
not know.
Ms. Barry, in your written testimony, you say you do not
agree with all the conclusions of the GAO. What conclusions do
you not agree with in the GAO study?
Ms. Barry. I think we took from the GAO report the notion
that we need to have a liaison with more individuals on this
process. We are trying to keep the hand-off very simple and
very direct. We always use the INS Lookout Unit for the hand-
off. We kept in contact with them as the organization at DHS
changed. We have verified with Mr. Ahern that should be our
primary partner for this type of activity.
Mr. Janklow. Have you read the first page of what the GAO
found on their report?
Ms. Barry. I did at some time.
Mr. Janklow. Let me just ask you. ``Names were not
consistently posted to the agency's watch list of suspected
terrorists.'' Do you agree or disagree with that?
Ms. Barry. Let me explain that when we were doing visa
revocations prior to the creation of the revocation code----
Mr. Janklow. I am sorry. This is rude. Let me interrupt you
for a second, if I can.
Let me ask you. Let us forget the past for a moment. Today
are names consistently posted to an agency's watch list of
suspected terrorists?
Ms. Barry. Sir, there are two issues here. Is someone
simply a suspected terrorist? That name is posted to other
agencies through the TIPOFF program. If a subject of such an
INTEL report seems to be someone who holds an issued visa, then
there is the issue of visa revocation. We use one code, and one
code only, now to indicate that we have revoked a visa. That
code is shared with DHS through the IBIS system.
Mr. Janklow. Are names consistently posted to agency watch
lists of suspected terrorists? Is that a yes?
Ms. Barry. Yes, sir; it is a yes.
Mr. Janklow. OK. It says, ``Individuals whose visas were
revoked on terrorism grounds entered the United States and
still remain.'' Now, as I understand it, from your testimony,
Mr. DeMore, you indicate in your written testimony that the
standards are different for revoking of visas, and--I will
say--expelling someone from the country; is that correct?
Mr. DeMore. That is correct.
Mr. Janklow. Is this a statutory problem or a regulatory
problem?
Mr. DeMore. I am not an attorney, sir, but I have discussed
it with our attorneys. We believe it could be corrected without
statutory changes.
Mr. Janklow. It is inconceivable to me that we would revoke
a visa of someone because we are concerned about the security
of this country. In our words, we keep them out, but once they
are here we are going to let them stay here. We are not dealing
with that regulation.
Whose agency is this regulation in? Ms. Barry.
Ms. Barry. Sir, the language of the Certificate of
Revocation and the issue that it becomes effective when the
person departs the United States, came out of an interagency
consultation in 1999 between INS, the State Department, and the
Office of Immigration Litigation of the Department of Justice.
Mr. Janklow. Has that been reviewed now?
Ms. Barry. The DHS has asked that it be reviewed. We have
started our internal deliberations to do that. We have not yet
met with the Department of Justice's Office of Immigration
Litigation.
Mr. Janklow. How long with that process take?
Ms. Barry. It should not take long. We are prepared to meet
with the other partners on this issue. The Department of
Justice, because of litigation issues, has serious equities on
this issue.
Mr. Shays. Would the gentleman yield?
Mr. Janklow. Certainly.
Mr. Shays. I do not understand. ``Serious equities.'' What
do you mean?
Ms. Barry. Well, the Office of Immigration Litigation is
responsible for taking cases to the immigration courts. So we
have to consult them. It has been viewed up until this time
that someone who is admitted to the United States and is in
status, the controlling issue--and again I caveat this that I
am not an attorney--is the admission by the Immigration officer
at the port of entry.
The visa itself is only the travel document to allow
someone to permit themselves for inspection. So the visa has no
legal authority once someone is admitted into the United States
by INS, and now DHS.
Mr. Shays. I was just asking about the concept of ``serious
equities.'' I just do not understand. It is like ``State
Department Speak.'' I want to understand you.
Ms. Barry. The Government's position is going to be
defended by the Department of Justice if someone wants to
litigate the issue of the visa revocation.
Mr. Shays. I thank the gentleman.
Mr. Janklow. But, the Department of Justice is your lawyer.
They are not your decisionmakers, correct? These litigators are
your lawyers, not your decisionmakers?
Ms. Barry. That is true, sir.
Mr. Janklow. You make the findings within your agency, and
then it is their job to defend you under the law?
Ms. Barry. I can only say at this point that in 1999 when
this issue was last reviewed, the Department of State consulted
the other agencies.
Mr. Janklow. Much has happened since 1999. Much process did
not work back then. We have a new system in play. Is there no
sense of urgency in dealing with this?
Ms. Barry. There is a sense of urgency, sir. The issue was
brought to us fairly recently. I cannot tell you specifically
when the issue was brought to us. It has been recent.
Mr. Janklow. Thank you.
One of the things that you said, Mr. Ford, was that the
State Department was not following its ``informal policy.'' Let
me ask you. At this stage of the game, either we have a policy
or we do not. One of the problems that citizens have with
Government is that they never understand what an ``informal
policy'' is. Is that one that you have that nobody follows,
somebody follows, you choose to follow if you feel like it?
What is an ``informal policy,'' sir?
Mr. Ford. For us, it is a written policy that----
Mr. Janklow. That is ignored.
Mr. Ford. No, in this particular case it was not a written
policy.
Mr. Janklow. In other words, you have a policy----
Mr. Ford. When we asked what kind of policies they have in
writing that describe what their responsibilities are, they did
provide some limited information. But there were certain things
that were not written down.
For example, the timeliness question. There is not a
written policy at the Department of State that says you have to
do this within 1 day.
Mr. Janklow. That is what I am trying to get at, sir. That
being the case, there is no way in the world that the universe
of the State Department could ever understand what the policy
is and give any uniform application.
Mr. Ford. We would agree with that. That is why we made the
recommendations so that could be corrected.
Mr. Janklow. Have they disputed that recommendation?
Mr. Ford. State did not comment on our recommendations, so
I do not know what their position is on that.
Mr. Janklow. I fully understand and appreciate the fact
that people slip through the cracks that should not. In State
and local governments, pedophiles and child molesters end up as
approved foster parents sometimes, notwithstanding all the
efforts to try to weed these people out. I can appreciate the
difficulty that all of you have in all of your agencies.
Mr. McCraw, I notice you are originally from El Paso. Are
you familiar with that multi-agency group that is located on
the old military base?
Mr. McCraw. Yes, sir, Fort Biggs, at EPIC.
Mr. Janklow. How many agencies are involved in that?
Mr. McCraw. Every Federal agency outside the intelligence
community participates there, including the Department of
Defense.
Mr. Janklow. And the State of Texas?
Mr. McCraw. Yes sir, they do; even more so now.
Traditionally they did not when I was with the State Police in
Texas. We did not have a formal membership. They do have a
liaison relation with them.
Mr. Janklow. Officers in South Dakota, my State, the
highway patrol, were able to check individuals coming down the
interstate doing any kind of check, and access that data base.
Is that data base tied into the data bases of these other
agencies that Mr. DeMore, Mr. Ahern, and Ms. Barry's agencies
are using?
Mr. McCraw. Well, all of our data bases are at EPIC.
Mr. Janklow. They are?
Mr. McCraw. Yes, sir. The advantage, as you said, just like
your highway patrol there, they have a 24/7 watch. You can pick
up the phone and call and make those checks.
Mr. Janklow. Mr. Ahern, on page 3 of your written
testimony, I did not quite follow this. ``By revoking the visa
prudentially, the bearer is required to reapply for a visa.''
Then you go on in the next sentence, ``The actual visa, once
issued to an individual, is usually at large and could be used
if inspectors at ports of entry are not aware of the
revocation.''
But given the fact that you use data bases, that should not
happen again; should it? Could someone just walk through a port
of entry with a visa without having them checked on the
computer quickly?
Mr. Ahern. No, that should not happen at all. Once somebody
comes into the United States, they should be entered into the
system, the Interagency Border Inspection System, which does
then interact with the NAILS system as well as the CLASS
system. If there is a lookout in the system, it should be
identified. If it is in there for a visa revocation, then that
person is referred to secondary inspection for final
determination.
Mr. Janklow. So what you have here should not be the case
any longer; is that correct?
Mr. Ahern. That is correct.
Mr. Janklow. Let me ask you all, if I can, in this limited
time I have available. Is there any problem with the existing
Federal laws that you now feel, given the functions that you
are carrying out, all the reorganizations, all the things that
are being done? We understand that it is helter-skelter and it
gets better every day; is there a statutory problem that your
agency might recommend and that Congress should address?
Mr. McCraw. I cannot comment on any issues as it relates to
statutory issues right now, sir.
Mr. Janklow. Because you are not allowed to, or because you
do not know of any?
Mr. McCraw. Because I am not involved in that particular
process, sir.
Mr. Janklow. Do any of the rest of you know of any
statutory changes that would be helpful in carrying on this
mission in making America safer?
Ms. Barry. Sir, to the best of my knowledge, the Department
of State has not asked for any additional statutory changes for
the visa function in terms of findings of ineligibility.
Mr. Janklow. But asking and needing are two different
things. Do you know of any?
Ms. Barry. I know of no one in the Department of State who
is advocating any additional changes.
Mr. Janklow. Thank you.
Thank you, Mr. Chairman.
Mr. Shays. We will come back.
Mrs. Maloney?.
Mrs. Maloney. Thank you, Mr. Chairman.
I would like to thank all of the panelists and in
particular Mr. McCraw. A number of your agents helped my
constituents and others in New York to escape from the World
Trade Center. I know you lost an agent there. I want to express
the appreciation of New Yorkers for the role that the FBI
played in September 11th.
I would like to ask Mr. McCraw who is in charge? Ultimately
the FBI, if there is a terrorist on the ground, it is really
your responsibility, of course with the help of INS, State, and
everyone else, to track them down and to protect the American
people. It seems as though a lot is happening, but ultimately
if you are not notified that there is a suspected terrorist,
who takes ownership? Who is in charge?
Specifically, the report noted that there may be 30
individuals that had their visa status revoked. According to
the report, the FBI claimed that they were not notified by
State that these people were in the United States. Quoting from
the report: ``The FBI claimed in other cases that the State
Department did not alert them that the person with revoked
visas could be possible terrorists.''
My question to the FBI is: How do you find out there is a
possible terrorist? If all of the agencies are working
together, and we have this computer system, who is responsible
to notify the FBI? If there is a breakdown in the system, who
do we hold accountable that they were not on the watch?
Mr. McCraw. First, thank you very much for your kind
comments. Second, I think the FBI has to take a leadership role
and any individual, whether they can legally be deported or
not, has been somehow linked to terrorism, and somehow ended up
in the United States.
Mrs. Maloney. But if you are not notified by State and INS,
how can you do that? The report is saying, and the FBI says,
they were not notified.
Mr. McCraw. The FBI people, including some of my people
that commented on that report, were right as it relates to the
process that GAO studied. There is no question that process was
broken including enough systems in terms internally of the FBI
not having a written control as it relates to the revocation of
visas.
Fortunately, we saw this back in post-September 11. We saw
that the system, especially until the FBI overhauls its
information technology system, we are not going to be where we
want to be. We put another system in place. Frankly, with
working with the State Department and at that time working with
the INS, having their data and utilizing the Foreign Terrorism
Tracking Task Force, we are alerted anytime any of these
individuals that have been linked to terrorism enter the United
States.
So I feel confident that we have a system in place that
does that. Now, is it the process that I find redundant in
terms of what we talked about, and what the GAO study is about?
No, that system certainly is not working. But fortunately we
have a system in place that not only takes care of the
revocation of visas. I am convinced this will be straightened
out. There is no doubt in my mind.
Mrs. Maloney. So, in other words, if I am hearing you
correctly, it is the responsibility of State to notify the FBI.
Then it is the FBI's responsibility to go out and check these
individuals; is that correct?
Mr. McCraw. Yes. We have an obligation. As the Director has
said, ``No terrorism lead shall go uncovered.'' If an
individual somehow has been linked, or there is some
relationship or association, we must go out and find that
individual and talk with that individual.
Mrs. Maloney. But now you are confident that State has
given you all of that information? That has been corrected?
Mr. McCraw. Yes. What they have done is the TIPOFF data
base that Ms. Barry has talked about, which we have agreed is
the intelligence community's data base for known or suspected
terrorists, and has been provided to the Foreign Terrorism
Tracking Task Force since January 2002. We have utilized that,
with some DOD technology.
Mrs. Maloney. Let us get away from technology into what is
happening. According to your report and others, two of the
terrorists, two of the pilots from September 11, came into the
country legally with tourist visas. Then they changed them to
student visas. They never went to school. It was a bogus
change. I have read other reports where the student visa is
often used as a rouse or a blanket under which to hide. It may
possibly be the easiest visa to get to come into our country.
I would like to hear what are the safeguards from the
universities on these student visas? The student may enroll in
some school, but then not go to school. How do they notify you?
Do they notify the FBI directly? Do they notify the State
Department? If someone has a student visa, and obviously is not
in school, how are we checking up on this particular segment?
Mr. McCraw. I would have to defer that to Mr. DeMore. I
know that they have responsibility for that.
Mr. DeMore. Under the Student and Exchange Visitor
Information System [SEVIS], students apply abroad to get their
visa. That data is entered into the system with biographical
information and biometric information. When that student makes
an entry into the United States through BCBP, they capture that
information electronically. It is transferred to the school
electronically. When the student arrives at the school, that
information is data input by a foreign student advisor. That is
notated electronically. If the student does not show up at the
school, that information is now transferred electronically to
us for enforcement action. So we can literally track the
movement from abroad of a student into the country.
Mrs. Maloney. Once they get to the school, they will notify
you they are at the school. Is there a requirement if they then
go to classes for a week and then drop out, that the school
notifies you? Do you take this information and give it to the
FBI? What do you do with it?
In other words, once they go to school, they go for 1 day
of classes and then they disappear. Does the school then notify
you? Are they required by law to notify you?
Mr. DeMore. Yes, they are. We would be notified
electronically. We would take that information and develop what
we call a target folder which is basically running that through
intelligence and law enforcement data bases to determine if
there is any significant derogatory information. Based on a
certain threshold, that information is sent out to the local
BICE field offices for investigative followup.
Mrs. Maloney. I would like to be notified how many students
are missing in New York. Some of the schools have told me that
they do not notify because the system does not work. I want to
know is the system working in all of the schools? Are you being
notified?
Mr. DeMore. I know in the initial systems development there
were problems. But we can certainly provide that information
for the record.
Mrs. Maloney. Thank you.
Mr. Shays. Without objection, so ordered.
Mrs. Maloney. It seems to me that if the system is not
working, if you could just ask them to type it up on a sheet of
paper and mail it in to the FBI, that might be a practical way.
We are starting a lot of technical computer systems that may
take years to get them working appropriately. It appears that
if students come in and they disappear, that information that
the FBI or somebody should have to try to locate them.
Mr. DeMore. I am told that the system is working well now.
We will certainly provide you with the post-SEVS numbers of
students.
Mrs. Maloney. The second question I am getting is this. I
represent a lot of very important universities, many of whom
are international universities. They are saying that it is
becoming very difficult to get student visas for legitimate
students. I would like to hear your comments on that.
I just know as a Congressmember, it is more difficult to
get visas for my constituents or their families--and probably
rightfully so as we do these background checks. Could you
comment on the comments by the universities that they have not
been able to process legitimate students from foreign
countries?
Mr. DeMore. I would defer to my colleague, Ms. Barry.
Ms. Barry. There is really only one issue that affects
students in the post-September 11 world. A student visa
applicant has always been under great scrutiny by consular
officers overseas. First of all, we have to know that the
request to study in the United States is not a ruse for illegal
immigration. Even some highly qualified students who would
clearly meet the eligibility of a U.S. university for
admission, do not have a bona fide intention of showing up and
studying.
We also have to be very careful about their ability to
finance a U.S. education. We, of course, are concerned that
their intentions and the finances and their academic
qualifications all come together and we can issue the visa.
In the post-September 11 world, the one additional
requirement is that we now have a program for interagency
screening for counter-terrorism purposes, known as ``Visas
Condor.'' A number of student cases are now sent back to
Washington for further interagency screening. It is a small
percentage of the overall numbers of students, but it is an
additional requirement for some students.
Mrs. Maloney. Ms. Barry, you mentioned finances. That is a
very important point. We know that many of the terrorists were
financed by Al Qaeda, and financed by countries that are not
our allies. Is there any connection to the Treasury
Department's money laundering financial tracking system on how
these students are financed?
It might be appropriate for the Treasury Department's
financial unit that is tracking money coming into the United
States from foreign sources, foreign banks, or suspected
terrorist organizations, to connect up with that unit on the
financing. How a student is financed is a very important aspect
of the security information for the country.
Ms. Barry. To the best of my knowledge, we are hooked up to
the Treasury information that is now name-retrievable. It is in
our lookout system. But it is something that we are very
interested in. We look primarily to the family. It is rare when
a student comes and says that they are being financed by a
third party.
Mrs. Maloney. But the consulate is very able to find out
if, in fact, they are financed by the family, by checking the
family background.
Ms. Barry. Right. We can look at this. In most countries we
have very strong cooperative relationships with financial
institutions and with law enforcement agencies. We can do what
we feel is necessary to resolve a specific case.
We also work in an embassy that frequently has
representatives from a number of different agencies. Again, we
can look to those experts as well to help us inform our
judgments.
Mrs. Maloney. My time is up. But just to followup, we may
be friends and have great diplomatic relations with certain
countries, yet those countries finance terrorists in this
country. I mention Saudi Arabia. Most of the terrorists from
September 11 were citizens of Saudi Arabia. I, for one, would
be interested, if the country, even though they are diplomatic
allies, of financing either through the government or through
not-for-profits or whatever, various student activities or
students in this country. I just mention that as one example.
I think the GAO did an excellent report. I was very
impressed with it. I would like to ask the chairman if it would
be appropriate if the panelists would respond in writing to the
recommendations that GAO put forth. They put forth very
concrete recommendations.
Mr. Shays. Let me say that we are not going to wait to have
it done in writing.
With all due respect, I have heard some comments about how
the report is not all that accurate. I heard an attempt by a
member to say, ``Well, where is it not?'' We have heard really
no specifics.
I feel no sense of urgency on the part of this panel. I
have a tremendous amount of pride when I go from country-to-
country and visit our State Department employees. I am so proud
of them. I am as grateful as I can be for their work. But we
are like ships passing in the night here. At least that is the
way I feel.
Let me just tell you how I visualize this. Then maybe we
could use that as a framework for the questions I want to ask.
We have a real concern of terrorist attacks. It is not make-
believe. It is for real. It is probable. It is not a question,
as far as I view it, of if it will happen, but when, where, and
of what magnitude we will face chemical, biological,
conventional attacks that are serious, nuclear, or radioactive
material. That to me, is a given.
When I attend a hearing like this and I listen to it, that
is in the back of my mind. I want to say: Are we awake? Is that
something that Government employees also feel? Do I just feel
that way having had 50 hearings on this issue over the last 5
years before September 11?
There is nothing surprising about what happened to
September 11 in one sense. In another sense, they answered the
one question we did not know. There is no red line that they
will not cross. They are willing to destroy whatever. There is
no sense of proportion. I am a bit concerned, as I think other
people are as well.
These attacks can be carried out by American citizens. They
can be carried out by people who are here as our guests who are
working here. They can be carried out by visitors. They can be
carried out by people who got here illegally.
As it turned out, September 11th was done by everyone who,
for the most part, were here legally. They had visas. We
thought maybe there is a bit of a problem here. All of you felt
the same way. We said: Maybe we are issuing visas to people who
should not get them. That seems logical. What can we do about
it? We even thought we should take it away from the State
Department because we were not happy with the job they were
doing. Ultimately it was left with the State Department.
We reorganized our Government. There is a new threat, a new
strategy. Now we have put Customs and INS and I think have this
potentially very helpful Department of Homeland Security.
We asked GAO to look at what is going on. What they have
seen is not a very good thing. I was hoping that all of you
would say: GAO is right here, they were wrong here. These are
the things they were right about when they do the report, but
guess what, we have changed things now. And by the way, we are
tracking now every 1 of those 30 people. That is what I thought
was going to happen. I was going to say: Well, where do we go
from here. But all I felt is a bit confused by the responses.
Ms. Barry, I am not even convinced you read the report.
Ms. Barry. To the best of----
Mr. Shays. I am not finished yet. I am not convinced you
read the report. You just gave a comment that you do not agree
with it. You had an opportunity from this Member to tell us
exactly what you did not agree with. You went in a big circle,
as far as I was concerned.
The Department of State decides whether or not someone
should be allowed to come into the United States, and they
issue a visa. Sometimes they issue a visa without all the
information. Then when they get more information, they might
revoke a visa. Now, in the meantime, someone may have gotten
into the United States, or they may not have.
Mr. Ahern, your agency is the one that receives the
individual. You are going to have to have information that
tells you they have a visa. You do a check and make sure there
is not a problem. But if it has been revoked, we want to make
sure that you know about it on a timely basis and say, ``Sorry,
it has been revoked.''
I understand there were about 14 where this happened and
where you found them. I want to ask you what happened to those
14. Did we look at them and allow them to stay? Did we send
them back?
I also understand that once they get through you, we have a
problem. It is really easy to deny a visa. You can just
basically deny it. You do not have to give a lot of reasons.
You can just deny it. You can give a very general reason. But
once they are in the country, we play by different rules. We
have to substantiate why you are here. They came here legally.
They had a visa. They walked in. They are here legally.
So now my mind says: ``OK. What is breaking down in the
system that would allow them to stay?'' I heard people give
reasons. But they are not good reasons. I want to know, based
on the report, did you track down the 30 people? They are
suspected terrorists. Guess what? Maybe none of them are. But
they are suspected terrorists.
I want to know: Did we track them down? Did we interview
every one of them? How many of the ones that we interviewed did
we say should be sent back? I want to know if you did it when
the report was written or if you did it afterwards. That is
fair enough. If you read the report and said: ``My gosh, they
have a point here. We had better do something better here.''
That is acceptable.
By the way, GAO can be wrong. We are going to start with
Ms. Barry. What specifically did you agree with and what
specifically did you disagree with?
Ms. Barry. We agree with the procedural problems that were
found by the GAO in their report. We address them as follows.
Mr. Shays. I do not want to know how you address them. I
want to know what you agree and disagree with. That is
basically their report, correct?
Ms. Barry. They also commented on the nature of the 240
visa revocations. We did provide them comments on their
characterization of those cases and the basis of a prudential
revocation.
With regard to the procedural shortcomings, we agree with
the report.
Mr. Shays. OK. Let me understand, Mr. Ahern, what you agree
with and what you disagree with.
Mr. Ahern. I would like to start with my background. It is
with the U.S. Customs Service which on March 1st became part of
the Department of Homeland Security. We have adopted this new
process. I come to it from a different perspective.
When I read the report, I saw there were some things that
needed to be taken care of and put in place. I first started to
get engaged with this process 2 weeks ago. What we have looked
at is from the Customs and Border Protection's perspective,
what we need to do is to shore up the system of input from the
Department of State through the CLASS system. We believe that
has now been undertaken with the correct code placed in the
system.
Then the process is to be set in place, making sure that
there is not a single solution to the potential problem. We
want to make sure there is zero tolerance here. We want to make
sure that there are redundancies in place to make sure that
there is not the potential for one individual to come into this
country that is not supposed to.
What we have done is to work with the State Department over
the last couple of weeks to make sure as far as the correct
visa revocation code is in place. That has been taken care of.
They are certainly well on the way with that.
Mr. Shays. You are telling me solutions right now. Is there
is anything in the report you disagree with that you read
relating to your area?
Mr. Ahern. From my perspective, I believe that there were
some systems in place that were not necessarily as formalized
as they should be. I believe we need to formalize those and we
need to perfect them more in greater detail.
Mr. Shays. But the GAO report does say there are some
systems in place. He is not saying there were not systems in
place.
Mr. Ahern. I believe there were systems in place. My point
is that they need to be perfected more. We need to make sure
that we have redundancies in place. My point is that they need
to be perfected more. We need to make sure that we have
redundancies in place.
Mr. Shays. I will ask the question again. Is there anything
in the report that you disagree with?
Mr. Ahern. There was some minor editing. We made comments
back both from the Bureau as well as the Department. But just
minor editing comments.
Mr. Shays. Mr. DeMore.
Mr. DeMore. Yes, sir. We would agree that there appear to
be connectivity problems between the respective components.
Mr. Shays. What do you call it?
Mr. DeMore. Connectivity problems in terms of cases
reported from State and those received by BCBP. There seem to
be discrepancies also in terms of the number of cases that were
reported and the number that were received. That seems to be
problematic.
What we would disagree with is the statement on page 24 of
the report where it says: ``National Security Unit
investigators said that they generally did not investigate or
locate individuals whose visas were revoked for terrorism.''
We would strongly disagree with that from the BICE
perspective in that we were notified in September that three
visas had been revoked for persons who had already entered the
United States and an additional seven in December 2002. For
each and every one of those cases we immediately developed
target folders which means that we ran the available
information through the intelligence community, through law
enforcement data bases, and through our own internal data
bases. We put all of that in the target folder and had it
within a week or 10 days to a local field office for
investigation.
We fully conducted field investigations on those 10 cases.
We found four of the people, interviewed them, determined that
they were compliant with the terms of their admission, the visa
was considered valid and was not revoked until they departed
the country, so it was considered valid at the time we located
them. They were in status. There were no removable grounds. We
could take no law enforcement action.
Mr. Shays. I am a little unclear on that. You say they were
not revoked, but you were notified they were revoked?
Mr. DeMore. As we have been discussing, the language on the
revocation says the visa is revoked if you have not entered the
country, and if you have entered the country, it is revoked
upon your departure.
Mr. Shays. OK. But with all due respect, it was revoked.
Legally they have their visa. But you were notified it was
revoked, correct?
Mr. DeMore. No, sir. It is clearly not revoked until they
depart the country. In other words, it is the intention of the
Department of State to revoke that visa, but if you are in the
country, it will not be.
Mr. Shays. You were notified it was the intention to revoke
it, correct?
Mr. DeMore. Yes.
Mr. Shays. It was the intention of the State Department to
revoke it because we feared they might be terrorists.
Mr. DeMore. Right. You have heard testimony here that the
TIPOFF often contains data that is vague and ambiguous and that
there's sometimes the slightest of indications.
Mr. Shays. I understand that.
Mr. DeMore. Right. So what we do is that we verify the
veracity of the allegation that there is a terrorist nexus.
These were run through the FBI. They found none.
Mr. Shays. What is the number 30; why do you tell me 7?
Mr. DeMore. We received 10 from BCBP. We would be most
happy to aggressively investigate those other 20 if GAO would
provide us that information.
Mr. Shays. Let me understand something. There are 20 others
that somewhere you do not know about, but the State Department
knows about?
Mr. DeMore. All I can tell you is that we were only
referred 10 cases.
Mr. Shays. OK. Referred from whom?
Mr. DeMore. From BCBP, our counterparts in the Department
of Homeland Security, Mr. Ahern's shop.
Mr. Shays. OK. Let me back up. So how many were you told
about?
Mr. Ahern. There were 30 that needed to be reconciled; 10
were referred to BICE. Prior to March 1st, that was one
organization. There was not that separation. One of the things
that we have been able to determine is there could be a variety
of different factors. There could have been an additional visa
that was actually issued to the individual and the revocation
was not actually removed from the system. They could have
actually entered and we just missed it at the border. That is a
potential of concern.
Part of what we are formalizing at this point is the
referral mechanism now from BCBP to BICE to make sure that
those do not fall through the cracks and that they get timely
referrals for investigative followup so we can track these
individuals down.
Mr. Shays. Mr. DeMore, I want to be thoughtful to you, but
when you said I could check with GAO, why would you not have
just talked with Mr. Ahern?
Mr. DeMore. Well, sir, we do.
Mr. Shays. You read the report. You know there are 30
people. Is there anything in your mind that said, ``Gosh, we
only did 10. What is this other 20? Why would you not have been
prepared to come and tell me what happened to the other 20?
Mr. DeMore. To my knowledge, they do not exist. Our
National Security Unit has worked very closely with the Lookout
Unit.
Mr. Shays. Are you guys in the same department?
Mr. DeMore. We are in the same department of Homeland
Security.
Mr. Shays. With all due respect, that is the point. You are
in the same department. We are hoping you guys are going to
talk with each other.
Mr. DeMore. We are talking daily. We are trying to build
all the firewalls.
Mr. Shays. I guess what I get is the sense that this report
did not mean much to any of you. So when you read the report,
it did not trigger any questions, and you did not decide to do
anything about it. Maybe we are all wasting our time. That is
the feeling I get. I do not mean to be disrespectful, but that
is the feeling I get.
Let me ask you this, Mr. McCraw. You are going to be able
to respond to anything you want to say on your own. I just want
to try to understand first where we are.
Mr. McCraw. First of all, I want to apologize.
Mr. Shays. You do not need to apologize for anything. I
just want to know the answer to this question. I want to know
what you agree with and disagree with the report. Then what I
want to know is: Have you been notified of any of these 30
individuals so you know to look for them, to interview them,
and to determine whether they are potential terrorists?
Mr. McCraw. First, I do want to apologize for not conveying
a sense of urgency. I agree with you. There is no question
about it from what I see on a day-to-day basis. There is a
sense of urgency. I apologize for not conveying that. The idea
that there is 30 known or suspected terrorists running around
this country, and we are not doing anything about it is
absolutely of concern to any of us right here.
The problem with the GAO report is that is not accurate.
They are not linked to terrorism. None of those 30 fall within
the 47 that were in TIPOFF. Those 30 are another pool of
individuals that either were revoked because of the backlogs in
terms of the FBI checks on them, or they were revoked for other
reasons.
But even though it said on the cable that came out from
State that it was related to terrorism, if you break down the
code, in fact they were not related to terrorism. As I
indicated earlier in the testimony, out of the 240, there were
47 that we linked to terrorism. None of those 30 were the ones
that the GAO report referred to that said somehow they got into
the United States. They could not make a determination of
whether they had left or not.
So, out of that 47 the question is: Well, what about that
47? Did they get into the United States because they were
issued visas? The answer is no. They are not in the United
States.
Mr. Shays. Let us just talk about the 30.
Incorrectly marked, they still were marked that way. How
did we know they were incorrectly marked? Are we now saying
they were incorrectly marked now that we have had to back up
here and figure out what went on? In other words, they were
marked as potential terrorists; is that part correct?
Mr. McCraw. That is correct.
Mr. Shays. OK. So given that. Should I expect, and should
you not expect that the system would have to respect that
marking until we know it is incorrect? The problem is that the
system did not seem to respect the marking.
Mr. McCraw. Yes. And frankly there are so many gaps in that
potential system. That is why I spent time in my testimony to
talk about the system we put in place in 2002. I can identify
several gaps that exist, especially when you depend upon a
cable being printed and routed to a particular unit. That is
why we spent the time and put this system in place to ensure
that we deal with the best data.
The best data in the U.S. Government right now is in the
TIPOFF data base as it relates to terrorism from the INTEL
community in the State Department. Making sure that we get that
data in an electronic format and as you indicated earlier, it
is important to have a seamless process. Immediately when these
individuals are identified and have entered the United States,
or somehow entered the United States undetected, even if the
visa was not revoked, we need to know it. Many people come into
this country that are valid, or they do not come with visas at
all. How do we find those individuals?
The problem with the GAO report is that it did not even
discuss that system, which means that it missed the whole
point. Yes, there is a system. In fact, it is a model of
information sharing dating back to 2002.
Mr. Shays. I am going to have Mr. Ford respond. I just want
to be clear so that I can go the second round and understand. I
want you all to have the opportunity to talk about solutions.
By the time we are done I think you will feel satisfied that we
have covered everything.
Right now I want to know specifically what was inaccurate
in the report, not how all of you responded, but what was
inaccurate in the report.
Mr. McCraw. First of all, the report was inaccurate because
it did not study all the systems that were in place. It focused
on a particular construct. I agree, and we have already agreed,
that systems needs improvement. But it missed the whole point
in terms of a system being in place.
Second, it characterized that 30 individuals were linked to
terrorism because upon the fact that the State Department sent
cables out that said these were linked to terrorism. The fact
is those 30 were not in TIPOFF, which means that those 30, or
the 105 for that matter of the 240, were revoked as it related
to a bureaucratic delay in the process. The FBI is culpable for
that in that regard. We acknowledged earlier being backlogged
in visa backchecks in Visas Condor.
Mr. Shays. Let me be more precise here. They were accurate
in defining that these had been classified as terrorists. Your
point is that the report should have pointed out that they were
not and they had been misclassified; is that it?
Mr. McCraw. Exactly.
Mr. Shays. Anything else?
Mr. McCraw. No, sir.
Mr. Shays. Mr. Ford, are there any comments that you want
to make?
This is a little bit of a painful process. Out of these, we
are going to have some good answers.
Mr. Ford. I guess my comment regarding the other systems
would be this. When we started this project, we asked the
Department of State to provide us with visas that had been
revoked for some concern related to terrorism. That is how we
got the 240 names. They came from the State Department. We did
not generate them ourselves.
We did ask early on in the project for information related
to the basis for the 240 names being in the system. We asked
the Department of Justice. We asked the CIA. They did not
provide us with a response.
Mr. Shays. Who? Justice or CIA?
Mr. Ford. Both. If, in fact, all of these people are
cleared, that is good news. But I stand by the fact that the
240 names were clearly identified by the Department of State.
We went through each and every record, all 240 of them. They
were all coded, based on what the State Department gave us and
based on some concern related to terrorism.
Whether, in fact, these folks are really terrorists or not,
we were not provided with any information by anybody else that
indicated that we were wrong.
Mr. Shays. Let me ask this. Did the State Department, the
DHS, and the FBI provide a formal response in writing? For
instance, Mr. McCraw, did your people look at this report and
then respond? Are you responding now when you could have
responded in writing earlier?
Mr. McCraw. Actually, the first time I saw the report was
last week when I was notified I was going to testify here
today.
Mr. Shays. Mr. Ford, did GAO give this report to the FBI so
that they could respond?
Mr. Ford. To comment on it?
Mr. Shays. Yes.
Mr. Ford. We went through our normal chain through the
Department of Justice. We assumed that the FBI got a copy.
Mr. Shays. So the point is that you gave this report to the
Department of Justice. I would like to think that someone in
the Department of Justice said: ``This is a serious report.''
The sense I get is that your Department was not given this
report, or you were not given the report?
Mr. McCraw. I received the report last week for the first
time, Congressman. I sat down and read it. In fact, I know of
people in the FBI that met with Mr. Ford and his people. That
is why I apologized early on that it was not pointed out to
them that there is a seamless system in process and that, in
fact, when you look it, it addressed all these things. We did
not provide that back in writing, I know, because I did not get
a chance to read the report until the last week.
Mr. Shays. I will tell you this. You might want to find out
where this seamless relationship. But the purpose of the GAO in
doing these reports is that they have an obligation to give it
to the departments. The departments have an obligation to
comment in writing. If somehow Justice does not think that
these serious obligations are not worth commenting on, that
blows me away.
Mr. McCraw. They certainly are. I personally take
responsibility for that, Congressman. I am sorry.
Mr. Shays. I do not know how you can personally do it.
Mr. Kucinich, thank you for your patience.
Mr. Kucinich. Thank you, Mr. Chairman.
Ms. Barry, how many visas are applied for on a yearly
basis?
Ms. Barry. I generally use the figure of 8 million. Prior
to September 11 we were up to 10 million a year. For a variety
of factors, after September 11 visa demand has gone down. This
is non-immigrant visa demand.
Mr. Kucinich. What is the rate of applications versus those
applications that are actually granted?
Ms. Barry. I believe as a historical figure, approximately
one-third of non-immigrant visas worldwide are denied.
Mr. Kucinich. What is the major reason for denial of a
visa?
Ms. Barry. Most visas are denied under Section 214(b) of
the Immigration and Nationality Act which says that we do not
find you a bona fide short-term visitor to the United States.
Mr. Kucinich. Has the rate of denials grown at all?
Ms. Barry. The rate of denial is fairly steady under that
section of law. As I said, as a historical reference overall,
it is about one-third of cases that are denied.
Mr. Kucinich. Are there any countries now where we are
tending to deny visa applications more today than we did before
September 11?
Ms. Barry. I do not have any specific information to help
me answer that question, sir.
Mr. Kucinich. Can you get that information to this
committee?
Ms. Barry. Yes.
Mr. Shays. Without objection, so ordered.
Mr. Kucinich. Thank you, Mr. Chairman.
Mr. McCraw, who decides the designation of a terrorist
connection? Who makes that decision?
Mr. McCraw. Many agencies make that decision.
Mr. Kucinich. Many agencies?
Mr. McCraw. Yes, sir.
Mr. Kucinich. What are the guidelines for making that
designation? How does it appear on an application?
Mr. McCraw. First of all, from intelligence community
reporting overseas. The U.S. intelligence community identifies
individuals through a number of different sources that have
been known or linked to particular terrorism, of varying
degrees. Some absolutely, positively, and some that looks like
there is a particular relationship to it.
That intelligence is culled and those individuals, along
with their biographical data, is agreed by the intelligence
community, and goes into the TIPOFF data base.
Mr. Kucinich. Is there like a committee that meets and
says, ``Well, this person could be a terrorist, and this person
is not?''
Mr. McCraw. No, sir; I do not believe so. I believe that
those independent agencies submit names as they have identified
those particular names.
Mr. Kucinich. Is this a decision that one person makes? Are
there many people who make the decision?
Mr. McCraw. I probably should not be testifying for other
agencies, but clearly the process is such that there are
initiatives underway that I am aware of, where they go through
a particular process. There is a set criteria. Those names are
extracted.
Mr. Kucinich. There is an initiative underway, but is there
something in place right now?
Mr. McCraw. Yes, sir; and has been. I probably should defer
to Ms. Barry on this since they are the keepers of that
particular data base in terms of how those programs work.
Mr. Kucinich. Ms. Barry.
Ms. Barry. Yes, sir. The TIPOFF data base is the
responsibility of the Bureau of Intelligence and Research of
the Department of State. They receive intelligence, primarily
from the CIA and the FBI. There is a staff. Sorry, I cannot
tell you offhand how many people are there. They screen that
intelligence.
Mr. Kucinich. Wait. If we could hold off, there. That is a
significant question. How big of a staff? How many people are
screening these? Who makes the decision whether something is
stamped as a terrorist suspect or not?
Ms. Barry. I am sorry; I do not have all of those details
for you. It is a data base that is dedicated only to the
question of counter-terrorism. The intelligence that is
provided to them by the other agencies is provided for that
reason.
Mr. Kucinich. So you do not know the answer to any of the
questions?
Ms. Barry. No, I do not know the answers to those specific
questions.
Mr. Kucinich. Are you interested in finding out the
answers?
Ms. Barry. I would be happy to get them, sir.
Mr. Kucinich. Where would we get that information?
Ms. Barry. From the Bureau of Intelligence and Research at
the Department of State.
Mr. Kucinich. Did you have oversight of that in your
capacity?
Ms. Barry. No, I do not. The Bureau of Consular Affairs, of
which I am a part, provides funding for the TIPOFF data base.
Mr. Kucinich. I think it would be very interesting, at
least to myself and perhaps of this committee, to first of all,
to know how many people are in this capacity, to know what the
criteria happens to be for designating someone a suspect, and
to know who makes the decision to designate someone, or to not
designate someone, and to know if there is any oversight over
there in a review capacity? Is that information shared with
other agencies, and if someone says not, does another agency
look at it, and if they say yes, does another agency look at
it? What are the checks and balances within that system? How
many people perhaps have been suspected of being a terrorist
who, upon further investigation, were determined not to be?
These are things that would give us some clue as to the
kind of work that is actually being done and the connection and
cooperation between agencies.
Mr. Shays. Without objection, so ordered.
Mr. Kucinich. Please continue.
Ms. Barry. The intelligence is screened. This is my
perspective as a user of the data base in a consular
perspective. Identifying information is gleaned from
intelligence. Then the TIPOFF staff makes a lookout entry into
the Consular Visa Lookout System, which gives to the best of
their ability, based on the intelligence, a name, a date and
place of birth, and their nationality.
That, of course, is what consular officers are using in the
field. We share the TIPOFF data base with DHS through the IBIS
system. They have the benefit of that work as well.
Mr. Kucinich. With respect to criteria, have you ever had a
case where the criteria was applied and then you found out
later on through other information that this person was, in
fact, not involved in any kind of terrorist activity and did
not merit being suspected of terrorism?
Ms. Barry. Yes, sir. If I could, I will give a kind of an
example. An INTEL report says that a particular individual is
at a meeting overseas with individuals liked to Al Qaeda, for
example. These decisions as to whether or not a specific
individual applying for a visa is that same person is made here
in Washington. It is not made by an individual consular
officer. The underlying intelligence can be very highly
classified.
The consular officer will see a lookout entry and will send
the case to Washington for further screening. Then the people
in Washington at the State Department and other agencies, with
the appropriate clearances, can look at that visa case and look
at the intelligence, and determine whether or not it is the
same person. If it is the same person, then we discuss whether
or not the case meets the legal standard for denying the visa.
We also consider whether there are other operational interests
of another agency in the case. When all of that consultation is
done in Washington, the Visa Office will provide the results of
that deliberation to the consular officer in the field.
Mr. Kucinich. Mr. McCraw, can you tell me if you have ever
had an example where the FBI ended up causing a decision that
was made on the part of the State Department to be overturned
with respect to someone who is suspected of having some kind of
terrorist ties?
Mr. McCraw. Correct me if I am wrong, but if I got the
question right, there have been instances clearly where the FBI
has received its own intelligence, or intelligence from other
agencies, that an individual was linked to terrorism, and on
subsequent investigation determined that was not true. That
happens. That is why evidence is important, and that is why it
is important that any individual suspected of it, that we
immediately pursue that particular lead, when we identify them
in the United States, or wherever we identify them in that
regard. Clearly the case is that the source could be
incredible, or a number of other factors that just look bad at
the time. It was very important for the U.S. Government to at
least look at that and have it in the lookout system, TIPOFF
system, if you will. As we develop additional information, we
can investigate that and then exonerate the individual.
Mr. Kucinich. Thank you.
Mr. Chairman, I just want to thank you for calling this
hearing. I think it would be very instructive for this
committee to receive information relative to the criteria that
are used. It is the criteria that actually establishes what we,
as a Government, perceive to be a possible terrorist threat. I
think it might give us a valuable view into the base of the
decisionmaking in the various agencies.
Mr. Shays. Without objection, so ordered.
Mr. Kucinich. I want to thank each of the witnesses for
your service to our country and your willingness to undertake
these very serious tasks. Thank you.
Mr. Shays. I thank the gentleman.
Before I recognize Mr. Janklow, I just want to ask Mr.
Ford.
Were all of the 30 individuals that were marked as
potential terrorists from the list of 105?
Mr. Ford. The 30 that are currently in the country? No,
that is out of the 240.
Mr. Shays. So some are in the 105 and some are not?
Mr. Ford. Yes.
Mr. Shays. OK. Mr. McCraw, are you comfortable with your
statement that all of these were mismarked?
Mr. McCraw. I am comfortable that the 30 he refers to as
not reflective of entering the United States is not in the 47
that have actually been identified and linked to terrorism;
absolutely. In fact, I rechecked the figures this morning to
make sure that we did not miss anything.
Mr. Shays. But let me ask you this. You have interviewed
all 30 of these individuals?
Mr. McCraw. No, we have not. Principally the reason we have
not is because the intelligence community had not determined
that they were linked to terrorism.
Mr. Halloran. The TIPOFF system is the only definitive way
to categorize someone as a potential terrorist?
Mr. McCraw. Absolutely. As it relates to the Government
data base, we found early on that the Government needed to pick
one particular data base. Frankly, TIPOFF was working quite
well. That needed to be the mechanism and the data. Everyone
agreed to put their particular information in there.
Mr. Halloran. Mr. Ford, is that your perception of the
system as well, that the TIPOFF is the only way to flag someone
as a terrorist, or a potential person of concern?
Mr. Ford. I do not know if I can answer that question. I
know that for the 240 names that we identified in our report,
we were told that these individuals were on that list because
they could be suspected terrorists. I do not know the source
for the ones that may not have been in TIPOFF. I really cannot
answer that.
Mr. McCraw. Only 47 of the 240 were actually in TIPOFF.
There is another system and it is what the FBI uses to
communicate to State and local law enforcement, the NCIC. Prior
to the Winter Olympics, the Director ordered that every FBI
main subject and some references, when there is a substantial
reason to believe they are linked to terrorism, be placed in
what they call the VGTOF file. Then the State and local police
officers can query NCIC. Once they query them, they can make a
determination that this in fact, is under investigation by the
FBI. There are specific instructions along with that in terms
of what to do or not to do if they come in contact with that
individual.
Mr. Shays. The breakdown, as we understand it right now,
that when the FBI did not provide a background check in time,
Ms. Barry, then the State Department labels them as potential
terrorists; is that correct?
Ms. Barry. Yes, sir. In the case of the 105, they had been
sent to Washington for interagency screening under the Visas
Condor program, which is a counter-terrorism program. At the
time the system was in place, the FBI had 30 days to respond.
If we heard nothing, we proceeded with visa issuance.
We did proceed with visa issuance in these 105 cases, and
subsequent to issuance, got a hit from the FBI. The hit meant
that they had something. On a prudential basis, we went ahead
and revoked the visas. As they worked the cases further, they
ended up clearing all of them.
Mr. Shays. So you revoked them. In the revoking of them,
did you notify them on a timely basis, or in fact, did it take
a period of time for DHS to know that these had been revoked?
Ms. Barry. At the time that we revoked those 105, our
procedures were not reliable. We were using a code in our
lookout system, which we subsequently learned did not pass to
DHS and the INS.
Mr. Shays. So the answer is yes?
Ms. Barry. Yes.
Mr. Shays. But you have dealt with it differently now?
Ms. Barry. We have dealt with it differently. We created a
specific lookout code for revocations. The lookout code
actually says, ``Revocation.'' It absolutely goes across the
interface to the IBIS system. We double checked all of the
calendar year 2003 cases from January 1st to May 31st. We found
that they had all transferred the interface to IBIS.
Mr. Shays. So Mr. Ahern would get this information
immediately?
Ms. Barry. In virtual real time, approximately 5 minutes.
Mr. Shays. Just to finish this link here. Mr. DeMore, how
do you interface with Mr. McCraw in terms of the people that
they were identifying in their lists as being potential
terrorists? Do you identify those same people?
Mr. DeMore. We work collaboratively with the FBI on the
Joint Terrorist Task Forces. We would be working and sharing
that information.
Mr. Shays. That is not a comfortable answer, I guess just
because I do not understand it. After 5 years of listening of
how you work together, it means nothing to me. I was told that
before September 11th.
I need to know. Do you get the same list that his
organization has? Do you actually seek out these same people?
Is that duplicative and you allow the FBI to do it? That is
what I need to know.
Mr. DeMore. My perspective is, and Mr. McCraw can weigh in
on this as well, but we fully support the FBI in all of their
counter-terrorism investigations. Our officers are there
working collaboratively with them.
Mr. Shays. Who takes the lead?
Mr. DeMore. The FBI takes the lead.
Mr. Shays. OK. So the FBI is in charge. If they ask you to
help them, you help them. In other words, they task you to look
for these people?
Mr. DeMore. Our agents work under the supervision of a
supervisory FBI agent.
Mr. Shays. OK. That makes sense.
Mr. McCraw. In fact, we depend upon their expertise daily
in what we do. As you recognize just by this hearing, how
important this all is. We always depend upon their expertise.
The way the process works right now, and the one that I
described earlier, is that when the task goes to the
operational division to the JTTF, when they open up the case,
more often than not, often the INS agent are assigned that
particular lead. That is our SOP. Why? They have the subject
matter expertise that we depend to get that done.
Mr. Shays. We are going to talk about all the solutions
that you have in my next round.
Mr. Janklow.
Mr. Janklow. Thank you, Mr. Chairman.
I would like to continue in this area.
Ms. Barry, you have to help me. I do not want to deal with
specific numbers, but I have to. On page 23 of the report, it
says there were 240 visa revocations reviewed, and 30 were
found to have been revoked on terrorism grounds. Are you saying
that to revoke a visa for terrorism grounds does not
necessarily mean that there is anything involving terrorism?
Ms. Barry. It means that we are willing and we do revoke if
there is a reason to believe that a visa holder is the subject
of an INTEL report linked to terrorism.
Mr. Janklow. OK. When you say an ``INTEL report,'' are you
accessing TIPOFF to make that decision?
Ms. Barry. Yes, sir. As new entries come into TIPOFF----
Mr. Janklow. So the answer is yes.
Ms. Barry. Yes.
Mr. Janklow. OK. Are you also accessing all other available
data bases that this country has to keep track of individuals?
Ms. Barry. No, we continue to try. Seventy percent of the
information that is now in our lookout system is from other
agencies.
Mr. Janklow. What agencies are you not able to access when
you make a determination as to whether or not you should revoke
a visa for terrorism grounds?
Ms. Barry. Well, for terrorism, the data base that we know
of related to terrorism is primarily TIPOFF. Some terrorist
cases might be in the FBI VGTOF data base. We have access to
both. We know of no other data base.
Mr. Janklow. So the answer to the question should have been
yes.
Ms. Barry. Yes, sir. We know of no other data base linked
to terrorism.
Mr. Janklow. OK. Now, what is the National Security Unit?
Mr. DeMore. The National Security Unit is in the Bureau of
Immigration and Customs Enforcement. It is the INS' national
security investigative component.
Mr. Janklow. All right. There were individuals that told
the investigators from GAO that the National Security Unit
investigator said they generally do not investigate or locate
individuals whose visas were revoked for terrorism concerns,
but may still be in the United States. Is that an accurate or
inaccurate statement?
Mr. DeMore. Sir, I believe that to be inaccurate. I
interviewed those officers this week. They told me that was not
the message that they were communicating.
Mr. Janklow. Mr. Chairman, if I might, could I ask that Mr.
DeMore's staff and Mr. Ford's staff get together and report to
the committee whether or not this was an accurate statement by
the GAO folks, or it is inaccurate.
I think it is really important to know whether or not the
National Security Investigator said that they generally did not
investigate or locate individuals whose visas were revoked for
terrorism concerns but still may be in the United States. You
say your staff never said that. Mr. Ford said that your staff
reported it to his staff. We need to know what the accurate
answer is.
Could you two get together and report the committee what
the dispute is or what the accurate fact is?
Mr. DeMore. Yes, sir; we would be happy to. In fact, I can
tell you that we only received the information on 10
individuals. We investigated those 10.
Mr. Janklow. We just need to get to the bottom of who is
saying what to whom. That is. It may be that the same staffers
are saying different things to different people. I do not know.
But we need to get to the bottom of it. I think you would
understand why.
Mr. DeMore. Yes, sir.
Mr. Shays. Without objection, so ordered.
Mr. Janklow. I think this goes to the heart of what I was
getting at before. Now, over on page 25 of the GAO report, Ms.
Barry, it appears that one of the reasons folks do not go after
removing from the country folks whose visas are revoked, is
because the notice from the State Department tells someone,
``Mr. Janklow, your visa is revoked when you leave the
country.''
They said because of the wording of it, it causes them
legal problems. Why cannot you change the wording of your visa
revocation? Has this been discussed at all?
Ms. Barry. It has been discussed, but only very recently.
The discussion has not come to closure.
Mr. Janklow. Why recently? Post-September 11, why would it
take 2 years to discuss? You are not going to let me into the
country because you are concerned I might be a terrorist
problem, but once I am in here, you will revoke me because you
think I might be a terrorist problem, and you will send me off
to some other agency.
But you say in my language that you send to me that I am
revoked when I leave the country. Why would you not just tell
me, ``You are revoked?''
Ms. Barry. Because while they are present in the United
States, the determining factor is that they have been legally
admitted by the immigration officer at the port of entry. The
visa has no bearing once that has happened.
Mr. Janklow. When can we expect a resolution of this issue?
Ms. Barry. I am not a legal expert, but my guess is that we
would expect this issue be resolved in about 2 to 3 weeks.
Mr. Janklow. OK. Is this in your agency?
Ms. Barry. My agency is primarily responsible for vias, but
as I said earlier, we previously have consulted DHS and DOJ on
this.
Mr. Janklow. When did you see a draft of this report?
Ms. Barry. We received a timely draft of this from Mr.
Ford's staff. I do not remember exactly when that was.
Mr. Janklow. The reason I ask is this. On page 25, it says,
``Homeland security official said that if State were to cease
using the current language on the revocation certificates, the
Government would no longer be effectively barred from
litigating the issue. If a policy decision were made to pursue
an aggressive litigation strategy, could seek to remove aliens
who have been admitted but have subsequently had their visas
revoked.''
Why does it take GAO to figure this out?
Ms. Barry. All I can say, sir, is that notification to us
from DHS on this issue was very recent. It was after GAO had
done their draft report.
Mr. Janklow. OK. Do you know how many of the September 11
attackers were students? The reason I am asking that question
is because in your testimony you said, ``We have always been
very tough on screening students.'' Do you know how many of
them had student visas?
Ms. Barry. I do not remember the number of names, no.
Mr. Janklow. In terms of the data base for State, how does
a person get into it? What facts are there that would put me
into the data base if I were a foreigner?
Ms. Barry. A denial of a previous visa.
Mr. Janklow. Is there any information if I have never had
contact before with the American officials? Could I be in
there?
Ms. Barry. Through intelligence services, yes.
Mr. Janklow. That would put me in. It would also get me
into TIPOFF; is that correct?
Ms. Barry. Yes, sir; it would get you into TIPOFF.
Mr. Janklow. If I could switch gears for just a second, Mr.
DeMore, on page 5 of your testimony--and I believe the chairman
got into this--``Contrary to the draft's report findings, BICE
always takes actions to investigate cases referred to the NSU.
NSU conducted a full investigation of 100 percent of the
referrals received.''
Could I ask that you two get together and submit to the
committee the accurate facts of whether or not the report is
accurate or your opinion is accurate. We just need to know what
the truth is.
Mr. DeMore. Certainly. Absolutely.
Mr. Shays. Without objection, so ordered.
Mr. Janklow. At this stage of the game where we are with
respect to national security, should there be informal
policies?
Ms. Barry. No, sir.
Mr. Janklow. Will State, after having read the report and
discussing it among yourselves, do you plan on doing anything
about these informal policies?
Ms. Barry. The Bureau of Consular Affairs is engaged in an
effort to formalize standard operating procedures.
Mr. Janklow. How long will that take? How long has the
effort been going on?
Ms. Barry. The effort has been going on for several months.
I do not know how many we have put in place. It is beyond 15 so
far. This will be the subject of a standard operating
procedure.
I agree with you that it should be formalized and every
staff member should know what it is.
Mr. Janklow. Do you know how long that will take?
Ms. Barry. It should not take long. I cannot give you a
specific answer. I would say it should be wrapped up within a
month.
Mr. Janklow. The whole thing?
Ms. Barry. The whole thing.
Mr. Janklow. OK. I speak for only me, but I understand the
value to this country of over the years having these foreign
students come to our country and study. The impact that it has
had is, first, for economic purposes, second, for relationship
purposes, and third, for intelligent purposes, cannot be
measured in terms of the relationships that have been
established between foreign students and the students and the
people of this country.
I think what is important is that we have to have a good
process and not harass the wrong people and harass the right
people when it comes to entry into this country. There is no
dispute with that; is there?
Ms. Barry. No, sir.
Mr. Janklow. The last question I have is: Staff gave me a
note between my questions that said: State should have known
about the problems with the revocation, as least as far back as
September 2002 when they saw a draft of the GAO's original visa
report, which led to this report.
After you read the draft report back around September 2002,
was there any discussion amongst the folks at State from and
after last September about moving forward on some of these
things have been highlighted? This is not a thing today to
determine all of the good things that have happened. There have
been a lot of good things. It is the one bad door they are
going to come through. That is the door they will find their
way through.
Ms. Barry. We have taken all the GAO reports seriously. We
have done a number of things to fix the vulnerabilities that
they have identified. When they identified the vulnerabilities
of the visa revocation process, we dealt with it. As I said,
the cases for this year reflect that the system is working.
Mr. Janklow. Mr. DeMore, as I close, let me just ask each
of you, have you heard of any discussions of anything that
Congress can do legislatively to make the job, the mission that
your agency has, easier?
Mr. DeMore. Sir, I have not, but we would be most delighted
to work with the committee and with Congress to review any
language and provide our earnest input.
Mr. Janklow. Mr. Ahern.
Mr. Ahern. I believe at this point we need to do some
internal perfecting of our standard operating procedures and
then see if there are any legislative changes that need to be
made.
Mr. Janklow. How often do your four agencies talked with
each other? Daily?
Mr. DeMore. I would say multiple times, daily. In the field
and also at headquarters.
Mr. Janklow. And you feel that State is as much in the loop
as your three agencies? I see your three agencies more as a
take-charge, law-enforcement, public-safety kinds of people. I
am exaggerating for effective vernacular. But State is State. I
am just wondering if they are really in the loop on all of
this.
Mr. McCraw. I think so, Congressman. I am biased because
early on they provided data and also a full-time person to the
Foreign Terrorism Tracking Task Force when I was its director.
I found them most willing and concerned, like the rest of us,
on how do we fill these gaps.
Mr. Janklow. You have 66 Joint Task Forces?
Mr. McCraw. Yes, 66 Joint Terrorism Tracking Task Forces
throughout the United States; yes, sir.
Mr. Janklow. Mr. DeMore, do you have any problems with
State?
Mr. DeMore. I think we are all extraordinarily motivated
right now to work together.
Mr. Janklow. Mr. Ahern?.
Mr. Ahern. I believe we have a good path ahead. In the last
couple of weeks I know that we have been dealing more with the
State Department.
Mr. Janklow. You said in the last couple of weeks. Is that
because of your newness in the position? Or have things gotten
better in the last 14 days?
Mr. Ahern. In the last couple of weeks. I became aware of
it as part of Customs and Border Protection. We are formalizing
the procedures we have in place, and also improving the
internal practices we have at the border.
Mr. Janklow. I have two last questions.
Mr. Ford, I realize you work for Congress, but is there
anything that you have come across where a legislative action
may be beneficial to helping any of the remaining issues?
Mr. Ford. I think this can be handled through policy and
procedure with the executive agencies. We did not identify any
legislative problems based on this particular analysis. We do
not think there are any laws that need to be changed.
Mr. Janklow. When was the gathering of data concluded for
the purposes of the report?
Mr. Ford. The analysis of the data is ongoing. We just
recently received some information from INS on their
computerized entry system which we are tying to match with the
30 names we identified through another source that they have.
But the timeframe of the analysis runs through the end of
calendar year 2002. So the 240 names that we used were from
September 11, to December 31, 2002.
Mr. Janklow. OK.
That is all I have, Mr. Chairman. Thank you very much.
I would like to talk to all of you. You have been very
candid under some tough questioning. I appreciate it.
Mr. Shays. We are going to be done very shortly.
Let me say that I think the very good news that has not
been disputed is that the FBI has checked and contacted and
found everyone--and correct me if I am wrong--that has been
identified as a potential terrorist who is a visitor to the
United States. Is that correct, Mr. McCraw?
Mr. McCraw. That is correct.
Mr. Shays. OK. That clearly was our biggest concern.
Disappointing that information appears not to have been
conveyed to GAO before the report was drafted. I would like to
know if that can be avoided in the future. The GAO is supposed
to have a process that allows for all comments. Sometimes those
comments result in the redrafting of the report to correspond
with reality.
The reality of this report that still holds is--I am
getting the sense--being responded to, that there were
inconsistencies in formal practices, and that we are going to
have formal practices, that the inconsistencies are being
addressed, and that the lack of on-time notification has
already been addressed.
Is that correct, Ms. Barry?
Ms. Barry. Yes, sir; that is correct.
Mr. Shays. So just the informal policy is the issue that
now does need to be addressed?
Ms. Barry. Yes, sir; and we will do so.
Mr. Shays. That is the sense that I have. This is a good
news story. The problems have been identified. It is being
addressed. We would like a copy of the formalized procedures so
we will know when it is done and we also know what it is.
Without objection, so ordered.
Mr. Ford, we thank you for doing this report. Let me ask
you this. In the course of hearing the testimony here, is there
anything that we should be asking these individuals to address
that you do not think they are inclined to address?
Mr. Ford. Based on what I have heard, I think there is an
issue that I would like to pose as a question for the
Department of State, and that is this.
If what the FBI says is true, that only those cases that
come through the TIPOFF are areas of concern, then I think that
the State Department should look at the way they code the
revocations so that any misunderstandings about the purpose for
which the revocation is made, are made more clear.
I think that had the Justice Department provided us with
comments of the nature that we have heard today, we probably
would have modified some of the conclusions in our report.
Regarding our recommendation to DHS to resolve some of these
issues with policy and procedure, I think that this is one of
them that in my view needs to be resolved. If, in fact, the
problem is a lot smaller than it appears to be, that should be
remedied by the way that they code revocations.
Mr. Shays. I think those are sound requests.
Let me ask you. There is one area that does not appear as
being addressed, and that is the issue that is nonsensical from
my standpoint. I do not know if this is an international
challenge, but we issue a visa that gives someone the right to
come in. If we revoke it, if we are fortunate enough to catch
them before they come into the United States, it is revoked.
But if they come into the United States, it is put on
suspension until they leave. As I think of it, they may not
want to come back. I do not know what good that has
accomplished.
Are there any of you that have a suggestion on how we deal
with this? Let me ask you in this way. Maybe this will answer
the question. Someone is here legally. You question them, Mr.
McCraw or Mr. DeMore. You determine they are terrorists. What
are you allowed to do?
Mr. DeMore. I can tell you from the BICE standpoint if we
determine there is a nexus to terrorism, we will use our
National Security Law Division to initiate removal proceedings.
In the four cases that we found----
Mr. Shays. Do you have to go through court? Do you have to
go through a legal process?
Mr. DeMore. Yes, sir.
Mr. Shays. What happens? Does that mean that you would have
to disclose sources and methods?
Mr. DeMore. It depends upon the information that was
available to us. If there is classified information, the agency
that classified that information would determine if they wanted
to make that available.
Mr. Shays. I just want to understand how the system works.
Do you have to go before an immigration judge?
Mr. DeMore. Yes, sir.
Mr. Shays. Ms. Barry.
Ms. Barry. Could I clarify that a visa does not give anyone
the right to enter the United States. It gives them the right
to present themselves for inspection to the DHS officer at the
border.
Mr. Shays. So once they are here, though, they are here?
Ms. Barry. Once they are here pursuant to a decision from
that inspector.
Mr. Shays. And you do agree, though, that it is a lot
easier for you to deny a visa?
Ms. Barry. Yes, sir; I do agree.
Mr. Shays. You wanted me to be aware of something. I am not
aware of what you wanted me to be aware of. What do you want me
to be aware of? I want to be a better listener. What is the
point?
Ms. Barry. I think the point is what you were getting at
sir, that they do go to court. They go through removal
proceedings because they have been legally admitted into the
United States. There is a very specific process in the statute.
Mr. Shays. We have a reason to want to avoid that. That is
where I was headed. If, in fact, they robbed a bank, it is easy
and we can say they did something illegal. But, in fact, if it
relates to terrorism, we do not want to be in the position of
having to share sources and methods.
Is it conceivable that if we are not capable of showing
sources and methods, that we know they are terrorists, that
they are then allowed to stay? Honestly? The answer is yes; is
it not?
Nodding of the head does not constitute an answer.
Mr. DeMore. I would say that is conceivable; yes. If there
is no information that was available to us to render someone
removable in a court, it is inconceivable that person would not
be subject to removal. However, we would work very closely with
the sources of that information to ensure that we would use
every means necessary to safeguard American interests, meaning
if we have to, we will release classified parts of it to
effectuate a removal.
I think the point you are getting to is: If the language in
the revocation letter was retroactive saying that the
revocation is effective on the date of issuance of the visa,
then that would render that person removable administratively
because they would have entered the country ostensibly without
a valid visa.
So if the language said that your visa is revoked, and it
is retroactive to the date of issuance, we would not need to
use these other sources.
Mr. Shays. If we were able particularly before they
entered.
Mr. McCraw, do you have any comment?
Mr. McCraw. No, sir. Obviously we use every tool that we
can use. It is a privilege to come to the United States and not
a right. If they violate those immigration laws along the way,
and they are linked to terrorism, that is clearly why the
legacy INS is so important to what we do on a day-to-day basis.
Mr. Shays. It is important, Mr. McCraw, that you were here
and you were able to qualify this report.
Mr. McCraw. I apologize for not getting Mr. Ford the right
information at the right time. Clearly that was my
responsibility and I did not do that.
Mr. Shays. I am delighted to allow any of you to put on the
record any information you want without my interruption.
Ms. Barry, about an hour-and-a-half ago, you wanted to talk
about something and let us know about some reforms. Whatever
you want to put on the record, please put on the record.
Ms. Barry. Going back to the previous referral to the GAO
report of September 2002, as I said, we are taking the
recommendations of that report very seriously. We have made
some major changes. For example, we recently set a new
guideline of when a visa interview can be waived. We have
started a process of formalizing standard operating procedures
for use in the field and at headquarters. We will continue that
effort.
We similarly took the procedural recommendations of this
present report on visa revocations very seriously. We believe
we have addressed the procedural issues, but we have not yet
fully formalized that. We will do so.
Finally, as part of my wrap-up, I would say that the
question of when a visa should be revoked from a legal point of
view, and its effect in law, is an issue that we will energize
a discussion within the Department of State on that point and
consult with other appropriate parties in the Federal
Government, to try to wrap that up as soon as possible.
Mr. Shays. Thank you, very much.
Mr. Ahern.
Mr. Ahern. As I started to mention earlier about solutions,
we believe we can have a lot better standardization of
procedures within the Customs and Border Protection at the
ports of entry to ensure that these things could not
potentially occur. We will be happy to summarize those and
submit those to you later, if you like.
Mr. Shays. Without objection, so ordered.
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Mr. Ahern. But one of the things we believe we need to be
looking at is trying to go ahead and stop that passenger
continuum, as early in the transportation process as possible
and not have an encounter at the border. So as early in the
process as we can make good effective determinations of who
should be issued a visa to travel to the United States, it
should be done, whether that is at the consular's office or if
it has been issued, before that person even potentially departs
a foreign location.
We then have a system in place to even have to deal with it
in a foreign environment as opposed to upon arrival in the
United States, if in fact, there is a good determination made
for revoking somebody's visa.
Mr. Shays. Mr. DeMore, I feel I owe you an apology in terms
of my question of why you did not know about the other 20
versus the 10. I do apologize.
Mr. DeMore. No apology necessary, sir.
I would just tell you that I moved to Washington in October
from California. When I got here with my two small children and
recognizing what a target Washington is, I am greatly aware of
my responsibilities and that of my agency to safeguard the
American people.
Lest the committee got the sense that we were not serious
about our business, we are. To that end, we are working very
closely with our partners here at the table. Mr. Ahern and I
are talking closely and working through additional data just to
make sure that if there are cases that we did not previously
pick up, we can potentially identify any of these other 20. We
are working that presently. We will report back if we are able
to come to some sense of those 20 other cases.
Mr. Shays. Thank you very much.
Without objection, so ordered.
When you mentioned Washington, when you have a conversation
with a family member who lives in another part of Washington,
and you say if there is an event, say, the White House, do not
try to find us. Go far away from whatever happens. That is a
weird conversation to have with one of your children. But it is
the reality of our world.
Mr. McCraw.
Mr. McCraw. Thank you for your support and the opportunity
to be here today. I appreciate this. This is a very important
issue. I am glad we had a chance to discuss it.
Mr. Shays. It is an important issue. All of you have
brought tremendous light to it.
Mr. Ford, we thank you for the work of GAO. We know that
you all work very hard. We also know that all the various
departments do as well.
I also want to thank the executive branch. We are all part
of Congress. It is a lot better to be able to have this dialog
without the GAO having spoken first, and having them at the
table than walking away from table. Sometimes it is awkward for
one or the other, but in the end we get at the truth. I thank
you all for that.
I think this was a very helpful hearing. I thank all of you
are participating.
This hearing is now adjourned.
[Whereupon, at 2:42 p.m., the subcommittee was adjourned,
to reconvene at the call of the Chair.]
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