<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:35822.wais]
CBP AND ICE: DOES THE CURRENT
ORGANIZATIONAL STRUCTURE BEST SERVE
U.S. HOMELAND SECURITY INTERESTS?
PART II AND III
=======================================================================
HEARING
before the
SUBCOMMITTEE ON MANAGEMENT,
INTERGRATION, AND OVERSIGHT
of the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST AND SECOND SESSION
__________
NOVEMBER 15, 2005 and MAY 11, 2006
__________
Serial No. 109-57
__________
Printed for the use of the Committee on Homeland Security
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__________
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COMMITTEE ON HOMELAND SECURITY
Peter T. King, New York, Chairman
Don Young, Alaska Bennie G. Thompson, Mississippi
Lamar S. Smith, Texas Loretta Sanchez, California
Curt Weldon, Pennsylvania Edward J. Markey, Massachusetts
Christopher Shays, Connecticut Norman D. Dicks, Washington
John Linder, Georgia Jane Harman, California
Mark E. Souder, Indiana Peter A. DeFazio, Oregon
Tom Davis, Virginia Nita M. Lowey, New York
Daniel E. Lungren, California Eleanor Holmes Norton, District of
Jim Gibbons, Nevada Columbia
Rob Simmons, Connecticut Zoe Lofgren, California
Mike Rogers, Alabama Sheila Jackson-Lee, Texas
Stevan Pearce, New Mexico Bill Pascrell, Jr., New Jersey
Katherine Harris, Florida Donna M. Christensen, U.S. Virgin
Bobby Jindal, Louisiana Islands
Dave G. Reichert, Washington Bob Etheridge, North Carolina
Michael McCaul, Texas James R. Langevin, Rhode Island
Charlie Dent, Pennsylvania Kendrick B. Meek, Florida
Ginny Brown-Waite, Florida
______
Subcommittee on Management, Integration, and Oversight
Mike Rogers, Alabama, Chairman
John Linder, Georgia Kendrick B. Meek, Florida
Tom Davis, Virginia Edward J. Markey, Massachusetts
Katherine Harris, Florida Zoe Lofgren, California
Dave G. Reichert, Washington Sheila Jackson-Lee, Texas
Michael McCaul, Texas Bill Pascrell, Jr., New Jersey
Peter T. King, New York (Ex Bennie G. Thompson, Mississippi
Officio) (Ex Officio)
(II)
C O N T E N T S
----------
Page
Statements
The Honorable Mike Rogers, a Representative in Congress From the
State of Alabama, and Chairman, Subcommittee on Management,
Integration, and Oversight..................................... 1
The Honorable Kendrick Meek, a Representative in Congress From
the State of Florida, and Ranking Member, Subcommittee on
Management, Integration, and Oversight......................... 2
The Honorable Sheila Jackson-Lee, a Representative in Congress
From the State of Texas:
Oral Statement................................................. 36
Prepared Statement............................................. 37
The Honorable Zoe Lofgren, a Representative in Congress From the
State California............................................... 33
The Honorable Michael T. McCaul, a Representative in Congress
From the State of Texas........................................ 21
The Honorable Mike E. Souder, a Representative in Congress From
the State of Indiana:
Oral Statement................................................. 19
Prepared Statement, May 11, 2006............................... 43
Witnesses
Tuesday, November 15, 2005
Mr. Robert L. Ashbaugh, Assistant Inspector General for
Inspections and Special Reviews, Office of Inspector General,
Department of Homeland Security:
Oral Statement................................................. 3
Prepared Statement............................................. 5
The Honorable Stewart A. Baker, Assistant Secretary for Policy,
U.S. Department of Homeland Security:
Oral Statement................................................. 9
Prepared Statement............................................. 11
Thursday, May 11, 2006
Panel I
The Honorable Stewart A. Baker, Assistant Secretary for Policy,
U.S. Department of Homeland Security:
Oral Statement................................................. 48
Prepared Statement............................................. 49
The Honorable Julie L. Myers, Assistant Secretary, U.S.
Immigration and Customs Enforcement:
Oral Statement................................................. 54
Prepared Statement............................................. 56
Ms. Deborah J. Spero, Acting Commissioner, U.S. Customs and
Border Protection:
Oral Statement................................................. 61
Prepared Statement............................................. 63
Panel II
Mr. T.J. Bonner, President, National Border Patrol Council,
American Federation of Government Employees (AFL-CIO):
Oral Statement................................................. 73
Prepared Statement............................................. 75
Mr. Arthur Gordon, President, Federal Law Enforcement Officers
Association:
Oral Statement................................................. 77
Prepared Statement............................................. 78
Seth Stodder, Esquire, Akin Gump Strauss Hauer & Feld LLP:
Oral Statement................................................. 80
Prepared Statement............................................. 82
Appendix
Questions from Honorable Mike Rogers............................. 95
Questions from Honorable Bennie G. Thompson...................... 102
CBP AND ICE: DOES THE CURRENT
ORGANIZATIONAL STRUCTURE BEST SERVE U.S. HOMELAND SECURITY INTERESTS?
PART II
----------
Tuesday, November 15, 2005
U.S. House of Representatives,
Committee on Homeland Security,
Subcommittee on Management,
Integration, and Oversight,
Washington, DC.
The subcommittee met, pursuant to call, at 2:03 p.m., in
Room 311, Cannon House Office Building, Hon. Mike Rogers
[chairman of the subcommittee] presiding.
Present: Representatives Rogers, Souder, McCaul, Meek,
Lofgren, and Jackson-Lee.
Mr. Rogers. [Presiding.] This meeting of the Subcommittee
on Management, Integration, and Oversight of the Committee on
Homeland Security is called to order.
We are holding the second hearing today to examine the
current organizational structure within the Department of
Homeland Security for two major agencies: U.S. Customs and
Border Protection, referred to as CBP, which secures our
borders and ports of entry; and U.S. Immigration and Customs
Enforcement, referred to as ICE, which enforces our immigration
and customs laws inside the United States.
I would first like to welcome our distinguished witnesses
and thank them for taking the time out of their busy schedules
to be with us today.
When the Department of Homeland Security was established in
March 2003, it housed two new agencies which were designated
CBP and ICE. Both of these agencies were composed of functions
from the legacy U.S. Customs Service, the former Immigration
and Naturalization Service, and other agencies. The original
organization of the Department also included a new Border and
Transportation Security Directorate, known as BTS. This office
was responsible for overseeing and coordinating the activities
of CBP and ICE.
Since 2003, however, many concerns have been expressed
about the ability of CBP and ICE to carry out their missions
effectively as separate and distinct agencies. Some of these
concerns were raised during our first hearing held in March,
focusing primarily on coordination, communication, and
financial issues. Various proposals have been made to address
these problems, including the merger of CBP and ICE.
In January, the Senate Homeland Security and Governmental
Affairs Committee held a hearing during which the chairman and
ranking member asked the Department's inspector general to
assess whether or not there should be a merger of CBP and ICE.
As part of this subcommittee's oversight role over the
Department's organization, we also will examine the inspector
general's assessment, which is being made public today.
We are also pleased to have with us the Assistant Inspector
General for Inspections and Special Reviews who will discuss
the IG's merger endorsement. We also are pleased to have the
new Assistant Secretary for Policy from the Department of
Homeland Security in his first appearance before Congress since
his confirmation. He will discuss Secretary Chertoff's decision
to eliminate the BTS directorate, but not merge CBP and ICE.
I once again want to thank the witnesses for joining us
today for this important issue. I now will yield the floor to
my friend and colleague from Florida, the ranking member, Mr.
Meek, for any statement he may have.
Mr. Meek. Thank you very much, Mr. Rogers.
I want to thank our witnesses for coming before us. I am
pleased to see Mr. Ashbaugh. I know that the inspector general
and your office has been working very hard and not only doing
outstanding work on monitoring contracts after Hurricane
Katrina, but in so many other areas. I admire the dedication of
your staff that you bring to oversight.
I also have offered amendments and legislation to provide
more funding and authority to the department inspector
general's office, but I hope that the committee and the
Congress recognize the need to act on these initiatives very
soon, especially as it relates to some of the oversight issues
in such a large agency.
The report that we are considering today is another example
of a thoughtful, thorough piece of work. If you turn on CNN any
night, you will hear Lou Dobbs talk about broken borders and
homeland insecurity, a major part of which is due to a lack of
coordination between Immigrations Customers Enforcement and
Custom Border Protection.
Financial separation between these two agencies undermines
the morale and also wastes resources and creates competing
agendas. For example, your report notes that ICE controls the
detention and removal program, which already has a limited
amount of detention space, but that competing demand for
housing, those arrested by ICE versus CBP, have only worsened
the bad space problem.
The two agencies also simply are not coordinating their
detention needs as a result of the ability of the department to
proceed in removing the volume of aliens apprehended by both
ICE and Customs Border Protection.
The subcommittee first considered whether ICE or CBP should
be merged back in March. At the time, there seemed to be a
steady drumbeat of saying that One Face at the Border was a
failed initiative and a dysfunctional relationship between ICE
and CBP made us less secure.
Yet Secretary Chertoff had the opportunity to make these
things happen in the second stage review and he chose the path
of least resistance. He avoided the big job of merging these
two organizations and did what was easy. He eliminated the
Border and Transportation Security, BTS, and just made ICE and
Customs Border Protection even more difficult as it relates to
being able to carry out their mission.
I think what is important here, Mr. Chairman, and also to
our witnesses and those that are here, interested parties, is
that we work out what is best for America and work out what is
best as it relates to strengthening security.
As you know, later on this week there will be
consideration, Mr. Under Secretary, of possibly putting before
the committee the opportunity to merge both of these
departments to make sure that we can streamline as much as
possible the enforcement and also execution of both of their
goals. I look forward to hearing your testimony on other
alternative ways that we could look at this overall agenda
between these two agencies.
The Department of Homeland Security, in closing I must add,
is still a very new department and also needs the kind of
oversight and management that the American people look for to
us providing. But we also have to leap forward and make sure
that we do what we are supposed to do, when it is time to do
it, if it going to save the taxpayers money, and at the same
time achieve the goals of protecting the homeland.
Thank you so very much, Mr. Chairman. I yield back the
balance of my time.
Mr. Rogers. I thank the gentleman.
Members are also reminded they can submit opening
statements for the record.
We are pleased to have two distinguished panelists with us
today on this important topic.
I would like to remind you that your entire statements can
also be submitted for the record. We would like to ask you to
limit your audible statements to around five minutes so that we
can then get on to questions.
The chair now calls the first panelist, recognizing Mr.
Robert Ashbaugh, Assistant Inspector General for Inspections
and Special Reviews, Department of Homeland Security, for any
statement he may have.
Mr. Ashbaugh?
STATEMENT OF ROBERT L. ASHBAUGH
Mr. Ashbaugh. I would like to start by acknowledging and
extending our appreciation to the committee for its continuing
oversight and its support of the Office of the Inspector
General. There is so much that we have together to work on in
this important arena, and we thank you very much for your help
and assistance and support to us.
Today, I would like to discuss the organizational
interrelationship of ICE and of CBP. As you mentioned, we were
asked to do this review and began it in roughly February.
During the course of the ensuing several months, we interviewed
approximately 600 individuals in 63 CBP and ICE facilities
around the country. We interviewed senior border and
transportation security officials, ICE and CBP leaders in
Washington, and we made a special effort to reach out and talk
to the managers in the sector district and port of entry
offices and the employees on the line, along with union
representatives and a number of persons outside DHS who had a
perspective on this.
We reviewed the budget plans, the performance statistics,
the operating procedures, as much of the written record of ICE
and CBP activities as we could get, in an effort to attempt to
study what started out as a binary question: Should there or
should there not be a merger?
Early on, we decided and made a significant effort to try
to capture as part of the final report some of the issues and
programmatic controversies that we encountered so that at the
end of the process, whether or not there was a merger or not,
whether or not our recommendation, whatever it might eventually
be, was accepted or not, that the report itself would have an
underlying value as we moved forward.
In the course of the review, we focused on three issues
that seemed to be most important to understanding the
structural interrelationships of ICE and CBP. These were the
coordination of apprehension, detention and removal efforts;
the coordination between interdiction and investigative
efforts; and the coordination of intelligence activities.
The first is detention and removal operations. As you know,
CBP apprehends illegal aliens, but is dependent upon ICE's
detention and removal to transport them, detain them and remove
them. ICE also apprehends aliens, in effect competing with CBP
for the detention bed space and for the same removal services.
Detention bed space is critical. Few illegal aliens are
actually removed unless they are detained, so this scarce
resource has to be managed and coordinated carefully if both
CBP and ICE are to attain their missions. They are so
interrelated, yet each by acting unilaterally has the
capability to disrupt the operations of the other, yet we found
each is developing separate plans for allocating resources
without consulting the other. We found that ICE detention was
not maintaining parity with CBP apprehensions.
With respect to investigative operations, we found that
although CBP often encounters indicators of a crime, it is ICE
that is responsible for investigating them. ICE and CBP
employees told us of the deteriorating situation in which ICE
investigators do not accept as many referrals from CBP as in
the past and CBP refers more cases to other law enforcement
agencies than in the past. Moreover, CBP is developing its own
investigative capabilities to use instead of ICE investigators.
We found persistent breaks in the two agencies' relations.
With respect to intelligence activities, we found that CBP
and ICE require intelligence regarding illegal aliens, criminal
aliens, alien smuggling, drug trafficking, fraudulent travel
documents, and import and export violations. They both have a
need for a common body of intelligence.
Despite this need, however, the two organizations have
separate intelligence structures and products. At the
headquarters level, the only significant intelligence
coordination effort that we could identify relates to
intelligence received from outside agencies. We also found that
at the field level, the two organizations have gone their
separate ways and are not coordinating or compiling
consolidated intelligence useful across the border.
We heard a surprisingly notable consistency from ICE, from
new employees, from old employees from Customs and from INS,
all supporting the proposition that there were significant
structural impediments to the way they attempted to do their
business.
Excuse me. I am not familiar with the red light. Am I okay?
Thank you for your forbearance.
We considered three options, and I will try to abbreviate a
little bit and skip to the one that was most important, and
that was whether or not there should be a merger. The other
choice, whether or not to assign the integration responsibility
via a direct report to the deputy secretary and the secretary,
or to strengthen BTS and give it additional authority and
resources to serve as an integrator. Both options we declined
to endorse.
We endorse the final option that proposed an elimination of
BTS and a merger of CBP and ICE. In our opinion, it was the
optimal solution for removing the problems arising from the
current organizational structure.
Instead of building an overhead of integrated structures
outside of ICE and CBP, we suggested pushing these down into
one organization. We felt that in doing this, the time
necessary to get operational decisions, the responsibility for
accomplishing integration, and the opportunities for informed
and accountable choice-making among conflicting priorities
would, in our opinion, be improved by merger.
As you know, the secretary declined to adopt the merger. As
I indicated earlier, we were determined that this report have
value that would last beyond whatever that decision might be.
We included in the report 14 recommendations of areas that
we felt needed to be addressed irrespective of whether there
was a merger or not a merger. The 14 recommendations are a very
formal way of saying to the public and to Congress and to the
department that we expect to engage in a dialogue about the
activities and the corrective actions or the ways in which the
department will address these recommendations.
It is also a commitment on our part that we will continue
to oversee, follow up on, and report on our assessment of how
those recommendations are being fulfilled and how the issues
are being addressed.
Thank you very much. I will be happy to take questions.
[The statement of Mr. Ashbaugh follows:]
Prepared Statement of Robert L. Ashbaugh
Tuesday, November 15, 2005
Good afternoon Mr. Chairman and Members of the Subcommittee. Thank
you for the opportunity to join you today to discuss our review of the
merits of merging two Department of Homeland Security (DHS) bureaus,
Immigration and Customs Enforcement (ICE) and the Bureau for Customs
and Border Protection (CBP) and eliminating the directorate to which
they report, Border and Transportation Security (BTS).
Impetus for Our Report
In January 2005, the Senate Committee on Homeland Security and
Governmental Affairs conducted a hearing to discuss means for improving
DHS's effectiveness. Prominent among the topics discussed were
recommendations proposed in a December 2004 report by the Heritage
Foundation and the Center for Strategic and International Studies,
entitled DHS 2.0: Rethinking the Department of Homeland Security.
During the hearing the Committee Chairman asked our office to assess
the merits of the report's recommendation to eliminate BTS and merge
CBP and ICE.
In response, we undertook this review, which examined the history
of the organizations, the roles and responsibilities assigned to them,
and the degree to which they have met their inter-related goals. We
interviewed more than 600 individuals from public, private, and non-
profit sectors. To obtain a balance of viewpoints, we traveled to 10
cities across the country to talk to employees in 63 CBP and ICE
facilities. We met with senior BTS, ICE, and CBP leaders in Washington,
DC, program managers, field staff, employees on the line, and
stakeholders. We reviewed budget plans, performance statistics,
operating procedures, and a large volume of other information
pertaining to BTS, CBP, and ICE.
As CBP and ICE were reformations of the former Immigration and
Naturalization Service (INS) and the U.S. Customs Service (Customs), we
examined whether the problems in operation and integration that we
encountered arose from the implementation of the new organizational
structure, or whether they were pre-existing conditions carried over
from the former agencies. We also considered other factors that may
have contributed, such as ICE's funding stream and accounting system
difficulties. After weeding out those issues, we concluded that the
current organizational arrangement contributed to concerns in at least
three major areas: coordination of apprehension and detention and
removal efforts, coordination between interdiction and investigative
efforts, and coordination of intelligence activities.
Creation of ICE and CBP
Before DHS was created, the Department of Justice's INS was
responsible for enforcing the immigration laws, and the Department of
the Treasury's U.S. Customs Service had authority for enforcing the
customs statutes. The INS was responsible for ensuring effective
enforcement of immigration laws from start to finish, including
apprehension, border inspection, investigation, and prosecution of
violations of immigration law. Likewise, Customs bore responsibility
for a full range of customs enforcement activities, including the
targeting, inspection, regulation, and investigation of all goods
crossing our country's borders.
With the formation of CBP and ICE, the responsibility for customs
and immigration enforcement was divided between the two organizations
so that each shouldered responsibility for aspects of both customs and
immigration enforcement. By the same token, neither agency was given
responsibility for the full scope of customs or immigration enforcement
activities. CBP received INS and Customs inspections functions and the
Border Patrol. INS and Customs investigations and intelligence
functions, as well as the INS detention and removal resources, were
placed in ICE.
Under the new structure, the organizations depended on each other's
assistance to complete enforcement actions. For example, if CBP
inspectors interdicted an individual for a customs law violation, the
investigation of the matter would have to be turned over to ICE or
another law enforcement agency. Similarly, ICE now depended on case
referrals from CBP inspectors. For their part, CBP Border Patrol agents
had to rely on ICE detention and removal resources to deport the aliens
whom they apprehended.
BTS, the entity responsible for integrating the interdependent CBP
and ICE activities, was hobbled by inadequate staffing and lack of
authorities over CBP and ICE. Consequently, BTS leadership often failed
to prevent CBP and ICE from working at cross-purposes, it did not
intervene to effectively synchronize CBP's and ICE's operations, and it
was slow to resolve conflicts between them. In addition, with a few
exceptions, it was unable to facilitate their development of mutually
beneficial resource plans and priorities. As a result, the ICE and CBP
chains of command pursued their own priorities when allocating
resources and developing procedures. Problems with coordination between
the two naturally ensued.
Problems in Coordination
A clear institutional barrier marks the division between CBP and
ICE. Shortfalls in operational coordination and information sharing
have fostered an environment of uncertainty and mistrust between CBP
and ICE personnel. What had been collegial relationships between the
different enforcement functions within INS and Customs have
deteriorated. Employees at both ICE and CBP told us that enforcement
units in CBP and ICE suffer from breakdowns in cooperation,
competition, and, at times, interference with each other's duties. The
problems are most notable in three areas: (1) the coordination of
apprehension and detention and removal operations; (2) the coordination
of investigative operations; and (3) the coordination of intelligence
activities.
Coordination of Apprehension and Detention Removal Operations
Absent a strong integrator, the division of related enforcement
functions necessitates separate planning and resource allocation. The
organizations' differing priorities and needs, coupled with ICE's
funding and accounting problems, have contributed to a resource
imbalance between CBP's alien apprehension and ICE's detention and
removal programs. CBP grew its apprehension capabilities while ICE did
not increase its detention and removal resources. The resultant
increase in apprehended illegal aliens has placed an increasing strain
on ICE's static detention and removal resources. It also has reduced
the impact of CBP's alien apprehension efforts by allowing larger
numbers of apprehended aliens to roam freely within the United States
pending their immigration hearing, which many never attend. The backlog
of immigration hearing absconders is continuing to grow and stood at
more than 465,000 at the end of fiscal year (FY) 2004. The drop in the
proportion of illegal aliens who are apprehended and removed may
inspire more aliens to seek illicit entry into the United States and,
in turn, may cause removal rates to spiral downward.
In the past, INS detention and removal resources were detailed to
INS apprehending components in order to provide support, such as
assistance with transportation, guard duty, and basic processing of
aliens. At BTS' instruction, some of this support continues. According
to senior CBP staff, however, the level and quality of support has
declined. This declining support, combined with ICE's withdrawal of
support in other areas, has prompted CBP to divert staff and resources
from the functions they are best suited to perform--inspections and
patrol work.
Ultimately, ICE's detention and removal functions are governed by
appropriations. Improved coordination in resource allocation between
CBP and ICE can better align the apprehension rates with the detention
and removal services, but the value of the deterrent effect that
results from their improved coordination is still limited by the funds
available to buy bed space and support removal costs.
Coordination of Investigative Operations
The division of enforcement functions between CBP and ICE has also
hampered the coordination of interdiction and investigation efforts Now
that they are in separate organizations, ICE investigators do not
accept as many case referrals from CBP inspectors and Border Patrol
agents, according to many CBP employees. Some attributed ICE's
declining acceptance rate of CBP referrals to the separate chains of
command. In the past, when investigators did not respond to a referral,
inspectors and Border Patrol agents could appeal up their common chain
of command to direct an investigative response. Now, appealing up the
separate chains of command is not as effective.
Likewise, according to many staff, CBP is relying less on ICE to
investigate the violations it uncovers. Many ICE investigators reported
that CBP increasingly refers cases to other investigative agencies. In
both the INS and Customs, investigators had the right of first refusal
for cases detected by inspectors. Now, due to the decline in ICE's
acceptance rate, interagency competition, growing mistrust, and a
decline in feedback on case progress, CBP is referring more cases to
the Federal Bureau of Investigation (FBI), Drug Enforcement
Administration (DEA), and local law enforcement authorities for
investigation, without first notifying ICE. In addition, CBP is
developing its own investigative capabilities to use in lieu of ICE
investigators. In October 2004, CBP announced a pilot program to
increase the number of CBP enforcement officers--a former INS group
that investigated some immigration cases, but was restricted to the
ports of entry (POEs). CBP's pilot program would broaden the scope of
these CBP enforcement officers' authority to include criminal
violations of the federal customs and drug statutes and expand their
jurisdiction outside the POEs. Along the same lines, the Border Patrol
has taken some steps to reconstitute its investigative capabilities in
alien smuggling cases.
A large number of CBP employees and ICE investigators expressed
concern about the growing antagonism between the two organizations.
They told us that they fear that coordination will deteriorate further
as legacy employees retire or resign, and the remnants of good working
relationships held over from the former INS and Customs will lapse.
Coordination of Intelligence Activities
CBP and ICE intelligence requirements overlap to a large extent,
yet coordination of intelligence activities between them has also
suffered. Both CBP and ICE require intelligence regarding illegal
aliens, criminal aliens, alien smuggling, drug trafficking, fraudulent
travel documents, and import and export violations. Despite their
shared intelligence needs, the two organizations have separate
intelligence structures and products. Intelligence coordination between
CBP and ICE at both the headquarters and field levels needs
improvement. At the headquarters level, the only significant
intelligence coordination effort that we could identify between the two
organizations relates to intelligence received from outside agencies.
Meanwhile, CBP withdrew from ICE field intelligence elements as ICE has
from CBP's.
The organizations' primary means of sharing intelligence is the
Treasury Enforcement Communications System (TECS), which was not
designed for this purpose. Most CBP personnel lack the required level
of access to retrieve critical information entered into TECS by ICE. As
a result, valuable ICE information about criminal trends and threats is
effectively withheld from most CBP employees, especially from those in
the field. Furthermore, because the data system was not designed as an
intelligence tool and does not highlight trends or detect anomalies,
intelligence analysts often are unaware of the information it contains
and must hunt through the entire system to retrieve information they
might need.
CBP and ICE work independently of one another to develop
intelligence products. CBP and ICE intelligence analysts told us that
the two organizations have never co-authored any major intelligence
products. The intelligence products each generates serve their
respective needs and may not present a comprehensive picture of border
security.
Improved efforts to eliminate intelligence stovepipes are needed.
Intelligence and other information CBP and ICE could use to enhance
their operations and improve overall border security is sometimes
retained on the other side of the interagency wall. As a result,
neither agency has all of the information it needs from the other.
Conclusions and Organizational Options
We heard a surprising and notable consistency of concerns amongst
the more than 600 people we interviewed in 63 sites across the country.
Their comments were supported by the data we reviewed. The breadth and
depth of our field work, combined with data supporting the facts we
learned in the field, allow us to conclude that significant problems
have arisen from the institutional gap that separates the enforcement
functions maintained in CBP and in ICE. While never perfect, what had
been a working continuum of immigration and customs enforcement
functions has been fractured, and redundant functions, stovepiped
information, and inefficient operations have ensued. These problems
defeat the purpose of the current organizational structure, which
according to DHS,\1\ was to establish coherent policies, reduce
duplication of efforts, and improve information sharing.
---------------------------------------------------------------------------
\1\ DHS, ``Border Reorganization Fact Sheet,'' January 30, 2003.
---------------------------------------------------------------------------
In addressing the task given us by the Senate Homeland Security and
Governmental Affairs Committee, we considered the merits of the
recommendations made by the Heritage Foundation report, as well as two
other alternatives:
<bullet> Eliminate BTS and maintain CBP and ICE as separate
entities reporting directly to the DHS Deputy Secretary
<bullet> Create more effective coordination mechanisms by
strengthening BTS and implementing more effective memoranda of
understanding
<bullet> Merge CBP and ICE and eliminate BTS
The first option would not bridge the institutional gap between the
enforcement functions. We believe it would further degrade enforcement
coordination, as BTS' integrator function would be further removed from
day-to-day operations up to the level of the Deputy Secretary. We did
not endorse this option. The second option would require providing BTS
with more staff and resources, as well as authority to effectively
manage the operations of both ICE and CBP, including developing policy,
directing resources, resolving disputes, and dictating personnel
decisions. This model would effectively strip the heads of ICE and CBP
of their authority and transfer it to BTS. While the authority to
direct ICE and CBP would be merged into one organization, the
separation between enforcement functions would continue in each of the
two organizations. We did not endorse this option, either.
We endorsed the final option. Merging CBP and ICE and eliminating
BTS, in our opinion, is the optimal solution to removing the problems
arising from the current organizational structure. The almost universal
message that we heard from inspectors, Border Patrol agents,
investigators, and DRO officers is that they perceive the current
problems between CBP and ICE to be inherent to the organizational
structure and impossible to resolve absent a merger. Merging the
entities would restore the continuum of enforcement functions that
operated in the former INS and Customs. While costs would be associated
with a merger, we believe that the costs of not merging would be
greater. Allowing the current organizational structure to stand would
allow ICE and CBP to continue to drift further apart, and operate too
autonomously. While we acknowledge the Department's concern that
merging the entities would represent a step back to the former agencies
and would be wasteful because of the new costs required to accomplish
merger, we disagree. We do not propose to reconstitute the INS and
Customs. Further, we believe a merger can be accomplished more cheaply
now than later. Merging ICE and CBP would create a true border
enforcement agency enhanced not only by the seamless integration of
enforcement functions, but by the melding of customs and immigration
authorities, as well. With such an entity, we believe DHS would be
better prepared to fulfill its mission of protecting the homeland.
In addition, our report addresses the placement of three other
organizations that are currently in ICE: the Federal Protective Service
(FPS), the Federal Air Marshal's Service (FAMS), and the Fraudulent
Document Laboratory (FDL). The FPS mission to protect federal office
buildings has no association with ICE's mission to investigate
immigration and customs violations and should be separated from ICE.
Similarly, because the FAMS mission to protect domestic civil aviation
has little in common with the ICE mission, we suggested that FAMS be
transferred back to TSA, which shares a similar mission. Finally,
during the course of our fieldwork, we learned that ICE and CBP each
maintain a capability for examining and analyzing fraudulent documents.
To improve efficiency and information sharing, we suggested that the
entities be merged into a single office located in CBP.
Recommendations for DHS Second Stage Review Implementation
While we were conducting our review, the Secretary initiated the
Second Stage Review (2SR) of DHS operations and structure. On July 13,
2005, after reviewing the results of 2SR, as well as the results of our
review, the Secretary decided not to merge ICE and CBP. Instead, he
placed them in a direct reporting relationship to the Deputy Secretary,
in a configuration similar to the first option that we considered.
In light of the Secretary's decision, we made 14 recommendations to
address our organizational and operational concerns with CBP, ICE and
BTS. The recommendations are designed to improve the organizations'
ability to:
<bullet> Define and communicate roles and responsibilities
<bullet> Better coordinate planning and budgeting
<bullet> Set and enforce priorities
<bullet> Maintain control, monitor and arbitrate disputes
<bullet> Share information
In general, the report cautions about the need for continuing and
intense attention to the management and coordination needs of the
agencies. ICE and CBP operations still require intensive monitoring,
and senior management will have to be available to address
unanticipated integration issues.
Mr. Chairman, that concludes my prepared statement. I would be
happy to answer any questions you or the Members may have.
Mr. Rogers. Thank you, Mr. Ashbaugh.
The chair now recognizes Mr. Stewart Baker, Assistant
Secretary for Policy at the U.S. Department of Homeland
Security.
STATEMENT OF THE HON. STEWART BAKER
Mr. Baker. Thank you, Chairman Rogers, Ranking Member Meek,
members of the committee. It is a pleasure to be here. It is my
first time testifying and, I am sure, not my last. I am looking
forward to it.
Very briefly, I would say that having reviewed this very
careful report, we come away with a sense that the inspector
general has, with some exceptions, gotten the symptoms right.
He has identified a lot of problems that ICE and CBP have in
their relationship and in their execution of their duties.
But in terms of the prescription that the inspector general
ultimately recommends, we could not disagree more. Our view is
that if at this point the Congress were to seek to put CBP and
ICE into a merger, it would set us back a year or more in the
effort to control the border. We cannot afford a year at this
stage in our country's history.
Let me go back and talk a little bit about, first, the
symptoms and then the prescription.
We do not agree with everything in this report. It would be
surprising if we did, but I think that Mr. Ashbaugh is correct
to say that this was written to be a valuable record and it is
a valuable resource. It identifies weaknesses in a variety of
places, both the detention and removal and intelligence
operational lack of coordination, and spends a long time
discussing the very severe funding difficulties that ICE had as
a result of the organizational changes that came with the
creation of DHS.
ICE ended up substantially underfunded. The ICE
investigators did not have travel funds. They did not have
training funds. They did not have opportunities to bring
witnesses along. They could not get awards or promotions, still
vacant jobs. It was a very hard time for ICE and a time of
considerable trouble in very substantial part because of the
changes that came with the reorganization that created DHS.
We agree that these were all problems, in part because the
Secretary began his examination of the department's needs at
about the same time that the Inspector General did, and heard
many of the same things that the Inspector General did about
all of the problems that we have just described and that the
Inspector General has laid out.
However, while the Inspector General was beginning his
study, the Secretary was beginning a second-stage review to
determine what could be done to address some of those problems.
What I find striking is that many of the things that the
Secretary has done are aimed at exactly the same kinds of
symptoms that the Inspector General addresses.
For example, the detention and removal and the mismatch
between resources there. For many years, there has been
insufficient bed space to hold all the people that are
apprehended. This is not a new development, and there was
tension well before the creation of DHS over those issues, but
there is no doubt that that is a concern.
As a result of the Secure Borders Initiative that the
Secretary has now announced, we are making efforts to make sure
that those beds are used in a strategic way in order to meet
the strategic goals of the department, both of ICE and of CBP,
and the creation of the Secure Borders Program Management
Office is in substantial part designed to make sure that we are
using our capabilities there in a fashion that meets all of the
needs of all of the department most effectively.
Similarly in intelligence, the Secretary looked at the
intelligence coordination and also thought it was insufficient;
created a position of the chief intelligence officer. It was
designed to change the way all of the elements of DHS deal with
intelligence and to make sure that we did create things such as
a career ladder for intelligence officers that would allow,
encourage, perhaps even require that in the long run, as people
serve as intelligence officers in DHS, they move from ICE to
CBP and elsewhere in the department.
We are in the process of implementing that kind of change,
and again, it is the Secretary's common view of the problem
with the Inspector General that has led to the changes.
Similarly, coordination, there are a number of coordination
issues that do need to be addressed item by item as we go
through, and the Secretary has begun that process. We are not
perfect yet, that is for sure, but I think we are on the road
and we can see the ways forward to addressing a lot of these
problems.
The question then comes, should we instead merge these
items, rather than pursue these smaller sets of initiatives? I
would say formally that our view is we should not. The reason
is that many of the problems that the Inspector General
identified are precisely the result of the difficulties in any
large-scale organizational change.
The ICE and CBP, but particularly ICE, personnel have just
gone through a couple of years of great turmoil in which no one
knew for sure what their job was, who they were going to report
to, what their organizational prerogatives were, where the
borders were with other organizations. That is just beginning
to sort out.
If we went through a merger, we would be back in the
process of saying, well, who do I report to; and what is my
job; and what is his job; what does the logo look like; what
color are we painting the trucks. All of those decisions create
a kind of organizational churn that I fear would distract both
ICE and CBP for a year or more, time which we could better use
to try to get control of the border.
So while we agree on the symptoms, I do not think we agree
on the prescription. We think that since the report began,
since these stories were gathered by the Inspector General,
changes have begun. We are a long way down the road. Many of
those problems are in our rearview mirror and it is very
dangerous to try to steer an organization of this size through
this kind of a dangerous terrain by staring in the rearview
mirror.
Thank you.
[The statement of Mr. Baker follows:]
Prepared Statement of the Hon. Stewart A. Baker
Tuesday, November 15, 2005
INTRODUCTION
Mr. Chairman and members of the Committee: thank you for the
opportunity to address you today, and for your ongoing support of the
Department of Homeland Security's efforts to keep America secure. I am
honored and pleased to appear before the House Homeland Security
Committee, Subcommittee on Management, Integration and Oversight for
the first time in my capacity as the Assistant Secretary for Policy at
the Department of Homeland Security. I am pleased to have this
opportunity to discuss the vital issues of border security, interior
enforcement and immigration reform in the context of the Department's
management challenges as a whole. appreciate this Subcommittee's work
with the Department in this area. It is critical to the Department that
we work hand-in-hand with you to ensure that we are effectively
managing our border and interior enforcement efforts.
SECOND STAGE REVIEW
Considerable work has been done since 9/11 to enhance border
security. We have significantly increased the number of agents and
officers securing our borders and ports of entry, strengthened and
consolidated inspections, expanded the terrorist watch list, created
new screening and credentialing tools, and increased our enforcement
capabilities. But much remains to be done. Illegal immigration
undermines our national security. And illegal immigration imposes
particular public safety and economic strains on our communities.
Secretary Chertoff studied these critical issues carefully in his
Second Stage Review of the Department. He looked, in particular, at
proposals to enhance coordination between Immigration and Customs
Enforcement (ICE) and Customs and Border Protection (CBP). After
careful study, he decided that the best course was not to merge ICE and
CBP, as some had suggested, but to propose a new management structure
intended to reduce bureaucracy, improve accountability, and enhance
coordination. In addition to making ICE and CBP direct reports to the
Secretary and eliminating the Border and Transportation Security
Directorate, the Secretary stood-up a Department-wide Policy office,
Operations office, and Intelligence office to ensure that the
Department and its components are mission-focused and effectively
leveraging tools from across the DHS spectrum. Among other things, it
was the Secretary's belief that a merger would diminish, rather than
enhance, the roles of the Assistant Secretary of ICE and the
Commissioner of CBP by, in effect, relegating them to the Deputy
Assistant Secretary level. It would thus merely recreate a new
bureaucratic reporting mechanism that has already been harshly
criticized.
The Secretary also concluded that we must think innovatively and
undertake a new way of doing business in the border security realm.
Thus, the first major initiative that he launched following his Second
Stage Review, in addition to the new management structure, was the
stand-up of the Secure Border Initiative or SBI. The Secretary put
together a team of experts, from CBP, ICE, CIS, U.S. Coast Guard, our
Intelligence Office, Management Directorate, and others, to focus on
all aspects of the border security problem--deterrence, detection,
apprehension, detention, and removal. This initiative is intended to
provide a mechanism to meet the challenges in each of these areas with
an integrated mix of increased staffing, more robust interior
enforcement, greater investment in detection technology and
infrastructure, and enhanced coordination on the federal, state, local,
and international levels. As discussed below, we are taking other
important steps to enhance coordination between ICE and CBP.
I speak for the Secretary when I say that greater focus at the
Department level--which we are undertaking--and innovative and
integrated thinking are a far better solution to securing the border
than imposing a massive reorganization through a merger of CBP and ICE.
Indeed, our grave concern is that a merger would have precisely the
opposite effect. The time and attention that it would take to
restructure these two organizations under one figurative head would
divert critical resources away from where our focus must be--securing
the border. Indeed, it would yield a protracted period (at a minimum
six months to a year) of mission confusion and organization churn, thus
undermining the operational effectiveness of CBP, ICE, and, frankly,
the Department at large.
As you all know well, much effort has gone over the past several
years toward standing up these two agencies, which have unique and
complementary missions. It was no easy task to merge the personnel,
resources, authorities, systems, and cultures of some 22-government
agencies to form the Department of Homeland Security. Forcing the
55,000 plus employees in these two components to go through yet another
major structural change under one behemoth agency within the Department
would be a significant setback. These two organizations are in the
midst of developing a culture, infrastructure, lines of communication,
and chain of command and policies. Upheaval created by the
implementation of a new organization would likely draw further
confusion as to roles and responsibilities and result in employee
demoralization. Employees would once again need to cope with mission
confusion, uncertainty of reporting and supervisory structures, among
other concerns. We could expect many employees would be frustrated by
the need to go through yet another massive change and many may leave
altogether.
The challenges that confront us along our Nation's borders are
substantial. But simply realigning the organizational boxes does not
resolve the complex challenges presented in the dynamically evolving
and resource-constrained environment in which we operate.
INSPECTOR GENERAL'S REPORT
I appreciate the careful study that the Inspector General's Office
undertook when considering the value of merging ICE and CBP. The
Inspector General's Office interviewed many ICE and CBP officials and
employees in the field and we found much that was of value in that
report. In particular, the report identified considerable morale
problems, making it abundantly clear that many employees have struggled
with the costs inherent in transition. ICE employees, in particular,
also felt the strain associated with the agency's financial shortfalls.
As you will see from the Department's written response to the report,
however, we disagree with the ultimate conclusions drawn from these
interviews. To that end, we are concerned that the IG did not
sufficiently corroborate or validate the misperceptions inherent in
many of the personal testimonials. To be sure, employee concerns
suggest that there is an exigency in improving culture and morale, but
they do not justify a massive organizational change. We note that, in
addition to the transitional problems inherent in any reorganization,
ICE employees, in particular, were operating under budgetary
constraints that the Department and Congress have worked to resolve.
But we are concerned that the report focused too heavily on anecdotal
evidence and not enough on empirical data that documents systemic
coordination. While anecdotal interviews can and do provide valuable
insight, we do not agree that they should serve as the impetus for a
massive organizational change.
The report also fails to take into account that these two
organizations are still in their early stages, having just gone through
major transformations. As a result, it is far too early to tell whether
the 2003 reorganization is successful. To that end, the report barely
touches upon whether problems that existed prior to the reorganization,
following passage of the Homeland Security Act, have now been resolved.
Nor did the report take a serious look at whether some of the
identified problems are in fact ``legacy'' problems. And there is
little discussion of the costs associated with a merger.
Let me be clear that I have not come here today to say that
creating ICE and CBP out of the old immigration and customs
organizations was cost-free or problem-free. All government
reorganizations have costs as well as benefits, and the transition is
never easy. It always takes time to find and solve the problems that
arise from reorganization. Indeed, these are the growing pains inherent
in any reorganization, especially when employees must adjust to new
missions, financial systems, and management structures.
The report, however, did not address any of the positive steps
these agencies have taken in the initial two years towards the
integration of complex legacy authorities and diverse cultures both
within the organizations and with each other. As part of the initial
transition planning, noted but dismissed by the Inspector General in
the report, existing policies and procedures were developed to provide
a fully integrated, comprehensive immigration and customs cooperative
process for the legacy Customs and former INS field managers. Both ICE
and CBP developed organizational templates, which met the new DHS
mission requirements. Subsequently, each organization highlighted
problems for resolution and have worked towards enhancing coordination
to address identified problems. Coordination issues continued to be
worked through joint groups throughout the Department and within ICE
and CBP. Coordination has improved simply by virtue of the fact that a
number of offices that were previously housed in several different
Departments are now under one umbrella. But, as we have documented in
greater detail in our response to the report, significant steps have
been taken to enhance coordination in all three areas that the
Inspector General focused on: (1) Apprehension and Detention and
Removal Operations; (2) Investigative Operations; and (3) Intelligence
Activities. We invite you to study our response.
ENHANCED COORDINATION
While the Inspector General ultimately recommended merging the two
agencies, he also included a series of valuable recommendations short
of merger to address the coordination problems that he identified. We
have studied carefully the report's recommendations and have already
implemented some of these changes.
We agree with the Inspector General that the key to excellent
performance lies in integrating the components through working level
communication, enhanced coordination, and unified management from
Department leadership on down. As I already mentioned above, we have
begun to do precisely that.
First, as I noted above, we have created the SBI Program Office,
which will report to the Secretary through the Policy Office. I am
committed to overseeing this office closely and will ensure that it
continues to receive the full attention of the highest levels of the
Department. Under the Program Manager's office, we are integrating
experts and resources from across the Department, including CBP, ICE,
CIS, U.S. Coast Guard, and Intelligence, into our planning and
execution. We are incorporating metrics and measurement into the SBI
program plan. SBI will work in unity of command and purpose within the
Department to systemically evaluate and resolve the problems along our
Nation's borders.
The overall vision for the SBI includes:
<bullet> More agents to patrol our borders, secure our ports of
entry and enforce immigration laws;
<bullet> Expanded detention and removal capabilities to
eliminate ``catch and release'' situations once and for all;
<bullet> A comprehensive and systemic upgrading of the
technology used in controlling the border, including increased
manned aerial assets, expanded use of UAVs, and next-generation
detection technology;
<bullet> Increased investment in infrastructure improvements at
the border--providing additional physical security to sharply
reduce illegal border crossings; and
<bullet> Greatly increased interior enforcement of our
immigration laws--including more robust worksite enforcement
and increased compliance with visa requirements.
In addition to SBI, we are undertaking a number of other steps to
improve coordination, including:
<bullet> Integration and alignment of priorities. Both the
Department-wide Policy office and Director of Operations
Coordination will play a major role in integrating policy and
operations of all the DHS operational agencies, including CBP
and ICE. In coordination with CBP and ICE, they will also align
Departmental priorities.
<bullet> Performance tracking and interagency reviews. The
Office of Policy will monitor the implementation of these
priorities through performance tracking and periodic
interagency reviews, including assessments of related resource
deployments.
<bullet> Intelligence Fusion and Department-wide Intelligence
Products. Similarly, understanding the enemy's intent and
capabilities affects how we operate at our borders. The Office
of Intelligence and Analysis will take the lead in ensuring
that we are operating under a common picture across the
Department, thereby addressing the IG's concern for greater
coordination in this area. In addition to the joint efforts
that are already underway between these two agencies with
respect to intelligence and information-sharing, the
Department's new Chief of Intelligence will fuse information
from all DHS components, including ICE and CBP. This
organizational change within the Department will increase
information sharing between components, but will also develop
intelligence products that incorporate all-source information
from across DHS. Over the last month, a working group within
the Department established protocols and mechanisms to provide
analysts from the Office of Intelligence and Analysis with
much-improved access to key ICE and CBP databases, providing
the Office of Intelligence and Analysis with a far better
capacity to conduct patterns and trends analysis in this area.
Plans are also underway to improve our Reports Officers program
and the Department is making significant improvements in the
number and quality of Intelligence Information Reports that it
produces.
<bullet> Performance Metrics. The Department will develop
performance metrics for internal CBP and ICE operations, and
metrics for gauging the extent of interaction and coordination
between CBP and ICE.
<bullet> Budget Coordination. Starting with the 2007
President's Budget request, the Department CFO has established
a more formal process to ensure greater visibility and
coordination between CBP and ICE for budget formulation and
strategic planning processes. This will ensure a more
consistent and proper balance of border/apprehension assets
within CBP with interior enforcement/removal assets in ICE. In
addition, the Chief Financial Officer will track budget
execution to guarantee compliance with agreed-to budget and
plans.
<bullet> Joint CBP-ICE working groups. A joint CBP-ICE working
group will oversee the implementation of interagency
coordination efforts and Memoranda of Understanding. The
working group will be responsible for dispute resolution,
responding to requests that deviate from plans, making
adjustments, providing clarification, and resolving different
interpretations of related guidance.
These enhancements will ensure that we are carefully monitoring,
measuring, and implementing mechanisms to enhance coordination. At the
same time, ICE and CBP have been working steadily to build a better
relationship. Both ICE and CBP have increased productivity in virtually
every facet of their law enforcement activities, in many cases breaking
annual enforcement records. Collectively, they have generated many
cooperative successes in the last two years, such as Operation ICE
Storm, Operation Texas Hold `Em, the ABC Initiative, the LAX
Initiative, and the Expedited Removal Working Group. Indeed, it should
be noted that the IG specifically pointed out in his report that he was
not aware of many of the coordination efforts underway within the
Department when he conducted his review.
At the same time, the decision not to merge these agencies also
rests with an important truth about their work. While the core missions
of ICE and CBP, interior enforcement and interdiction respectively, are
closely related, they are not identical. ICE's Operation Predator and
the enforcement of child exploitation laws and ICE's Violent Gang
Initiative, Community Shield, are two such examples. Critical interior
enforcement elements could suffer mission degradation if the two
agencies were merged into a massive 55,000-employee agency with a more
diverse focus.
In addition, CBP has made great strides in its own merger at
integrating its inspectional workforce, aspiring towards One Face at
the Border. More then 37 cross training modules have been built and
will be implemented in the field by December 31, 2005. These modules
will not only cross train the existing personnel who were on-board at
the time of the merger, but are also the key components in the 2-year
On-the-job-training for all new CBP Officers. To date, students filling
more than 112,660 training slots have passed through these courses. In
the past year alone, more then 7,300 CBP Officers and Agriculture
Specialists have taken the Anti-Terrorism courses and more then 13,150
employees have taken the fraudulent document detection courses.
ICE, overcoming enormous challenges to fulfill its mission, has
accomplished much in the last two years. As the second largest federal
contributor of agents to the Joint Terrorism Task Force, ICE has
increased the number of ICE cases by 500 percent. In Worksite
Enforcement, ICE targeted critical infrastructure worksites including
airports in Operation Tarmac that resulted in the arrest of more than
1,190 unauthorized alien workers with 782 criminal indictments and
nuclear power plants in Operation Glow Worm which resulted in the audit
of 63,835 employee records. Fighting identity and benefits fraud, in
fiscal year 2005, ICE conducted 3,591 investigations, leading to 875
criminal indictments. Investigating arms and strategic technology
violations, ICE has initiated 5,670 investigations into illegal exports
and has netted 431 arrests, 305 indictments and 282 convictions since
the formation of the agency. In the detention and removal operations of
undocumented aliens ICE reduced the average detention period for
``other than Mexican'' aliens that are detained. Using new strategies
that blend immigration and customs authority ICE increased by more than
30 percent its human trafficking and smuggling investigations, and
increased the assets seized to roughly $27 million in FY 2005.
Additionally, in FY 2005, CBP cleared 86 million arriving air
passengers from abroad. This is the largest number of air passengers
traveling to the United States in history, and also marks the first
year that the number of air passengers surpassed pre-9/11 levels. In FY
2005 CBP officers at ports of entry arrested more than 7,600 persons on
outstanding state or federal warrants, more than a 40 percent increase
over FY 2003. Over the last two years, CBP did its part to combat
identity and document fraud through the successful implementation of
the Machine Readable Passport and Digital Photograph requirements for
travelers from Visa Waiver countries. In addition, CBP intercepted more
than 75,000 fraudulent documents in each FY 2004 and FY 2005 and
intercepted and denied entry to almost 500 persons last year who
presented a terrorism or national security threat, more than a 20%
increase over FY 2004. Between our ports of entry, the CBP Border
Patrol again apprehended more than 1.1 million individuals attempting
to illegally enter the United States, and the CBP P-3s based in
Jacksonville, Florida and Corpus Christi, Texas contributed to the
seizure of over 210,779 pounds (105 tons) of illegal drugs--over 38,600
more pounds (19 tons) than last year.
This is an impressive list of accomplishments, especially when
viewed in light of the fact that at the time of the OIG's
investigation, ICE was laboring under a severe budget shortfall that
hampered its daily operations. In addition, CBP was heavily involved in
the continued integration of its inspectional workforce and the Air and
Marine Operations program. ICE's financial crisis seriously constrained
hiring and operational flexibility, resulting in a morale-draining
imposition of travel restrictions, compensation restrictions and other
meaningful belt-tightening. Given these constraints, it is no surprise
that the report revealed serious morale problems. In July 2005,
Congress provided ICE with a funding supplemental of $369 million. This
Congressional appropriation will ensure that the agency functions much
more effectively and that its employees thrive in their key enforcement
mission.
The Department is grateful to this Subcommittee for its attention
and support during the first years of our formation. We look forward to
working hand-in-hand with this Subcommittee as we develop new
technologies, enhance methodologies, and, critically, measure whether
what we are doing is achieving real results. Conscious of our
obligations to protect the Nation through effective border control we
have deeply studied our enforcement challenges and whether we were
meeting them in the most effective manner possible. Through the Second
Stage Review and the proposed changes I have discussed with you today,
I believe the Department has provided a roadmap for change and
improvement in its performance, accountability, coordination, and
management of personnel and duties.
The Department is fully committed to meeting the many challenges
that any recently created organization faces and we believe we have
made significant inroads in confronting the change needed to be more
effective for the American people. Thank you once again for the
opportunity to discuss these issues with you, and I look forward to
answering your questions.
Mr. Rogers. I thank the gentlemen.
I have a few questions.
I wanted to address what you were focused on, Mr. Baker,
and that is you acknowledge that the 14 symptoms, as you called
them, are accurate and they exist. Then you go further and say
that if we did make this merger, it would set us back a year,
in your opinion, in securing our borders.
Well, if it is not working, why do we want to give it
longer? And how much longer are you talking about?
You made reference to the fact that since the interviews
for this audit were completed, you have already started
implementing remedies. How long will it take for those to be
effective so that people know who they are reporting to and
what color the trucks are going to be painted?
Mr. Baker. First, as I said, there were three main areas
where there were concerns identified by the inspector general.
In two of them, I can say we have already implemented many of
the changes that we think are needed. The trucks and the logos,
that has been decided and sorted out. It was sorted out months,
if not a year ago.
Mr. Rogers. A merger would not affect that.
Mr. Baker. A merger would create yet another set of
questions of that sort, because then the question becomes,
well, who is my boss; what is my logo; which culture is going
to predominate here; is this going to be principally the cops;
is it going to be principally the inspectors who set the tone
for the organization. In any merger, there are questions of
that sort that sort down from the top all the way to the field
units. All of those relationships would have to be re-sorted
again.
So I would describe the kinds of problems that the
Inspector General found as the kind of problems you would
expect when you make a major reorganization. They are not
fatal. They are problems that need to be solved and we are in
the process of solving them. We are already planning detention
and removal in a much more coordinated fashion and using it in
a much more strategic fashion.
Mr. Rogers. Are you seeing measurable improvements since
you started making changes, because he found some pretty
significant problems in communication between the two. For
instance, the number of apprehensions were down.
Mr. Baker. Yes. In July or August of this year in response
to concerns about how we were using our detention facilities
and whether we were using them strategically, the department
began what became SBI, the Secure Border Initiative. The way we
began that was by bringing people from ICE and CBP and several
other organizations together to deal with the question of how
are we going to address the very severe problem of non-Mexicans
who are being apprehended crossing the southwest border.
This is a relatively recent, but very severe problem
because, as Mr. Ashbaugh said, if you do not have the space for
people, even after you catch them, you have to release them. We
were in a position of releasing I think 120,000 people a year
into the United States, when we told them to show up for their
hearing, but a lot of them would not. So that many of the
illegal population of the United States were people that we had
touched, apprehended and let go because we did not have space
for them.
In an effort to address that, we have begun focusing on
making sure that we detain. We detain practically every
Brazilian that we pick up. As a result, the word has gotten
back to Brazil that it is not a good idea to come here, pay a
coyote to take you across the border, because you are going to
end up back in Brazil before you know it. That is an expensive
trip and it costs a lot of hire the coyote, and a lot of
Brazilians seem to have been deterred from doing that by the
knowledge that they are going to be detained.
We have begun doing that with other countries' nationals in
an effort to spread that deterrence farther. Our hope is if we
can do this in a systematic strategic fashion, that the
deterrence will mean that in the long run we will not have to
use as many of our detention facilities for non-Mexicans who
are caught crossing the border. That is why I think of it as
strategic.
But in the end, what we are doing is using DRO's
capabilities very substantially in support of CBP. CBP has come
out with a greater sense that its mission is being supported by
DRO as a result of this process.
Mr. Rogers. I am still looking for a timeframe within which
you feel comfortable that you will have remedied the
deficiencies that were outlined by Mr. Ashbaugh, and some
metrics that you are saying you can point to that objectively
verify what you are saying.
My time is up. Since there are only three of us here, we
will have time for several rounds.
I now yield and recognize the ranking member, Mr. Meek, for
any questions he may have.
Mr. Meek. Thank you very much, Mr. Chairman.
I want to thank both of our witnesses for coming and
sharing their thoughts with us today.
I pretty much have a 100-page-plus report from the
inspector general's office, but I have very few questions for
you.
Mr. Secretary Baker, I do have questions for you, sir. I
know that the chairman asked you about the year-or-more kind of
thing if you were to merge, but I guess I am looking at this
from a standpoint of there is a carton of spoiled milk in the
refrigerator and I open it up and take a smell and say, ``Oh,
wow, it is spoiled. Let me put it back in; maybe it will be
fresh tomorrow.'' I mean, I am using that almost as a segue
into just trying to break down how I am trying to understand
when we see these very glaring concerns here by the inspector
general.
I am even looking at page five of the report on to page
six, where it talks about the fact that Customs Border
Protection is now trying to, in the second paragraph, is
developing its own investigative capabilities because of the
frustration with ICE at this particular time.
When you have an inspector general's report saying lack of
coordination between apprehension and detention and removal
operations; insufficient coordination of investigative
operations; and dysfunctional in coordination of intelligence
activities, you know, I am sort of smelling a 9/11 coming on
because that is what was in the 9/11 report. The FBI was not
talking to the CIA.
So the Congress moved to move these agencies into one
department; 22 legacy agencies came together. I am not going to
say this will not get the management report as it relates to
the federal government, but I did not think it set us a year
back as it relates to enforcement.
I do really have some real concerns with this, because if
something happens, and God forbid if it does and we find that
the ball fell between these two agencies because of
competition; because administrators did not want to talk to the
next person. Meanwhile frontline people, and I am from Miami, I
talk to these folks all the time, and they say, ``Congressman
listen, if you want to do something to help us on the
frontline, put us together so that we can cut out this
competition between one another.''
So it is a problem when a Customs Border Protection officer
starts and investigation and then ICE does not pick it up or
does not show up at all as it relates to it and they have to go
out and find another agency.
So if you can within the time left, I may ask another
question before that, but I would like if you could try to try
to give me a little bit more than what I have heard thus far of
the reaction to the inspector general's report, sir.
Mr. Baker. I am glad to.
First, with respect to the question of whether this is
hopelessly broken or a spoiled carton of milk, I think that
that is not the right conclusion to draw from this at all.
Just last week, a CBP inspector in New York inspected a
cargo and found 138 pounds of heroin. Now, the easy and obvious
thing to do if you are a CBP inspector in those circumstances
and you do not trust ICE is to say, ``I will find the stuff. I
will declare it. We will get credit for having found 138 pounds
worth of heroin.''
But that is not what he did. Instead what he did was call
ICE and say, ``Here it is. I am going to put it all back, and
when people come to pick it up, I want you to follow them.''
And that is exactly what he did. That allowed ICE to bust far
more people who were involved in the heroin smuggling than
otherwise would have been the case.
Now, think about that from the CBP officer's point of view.
One, he has to give up the sole credit for identifying the
drugs.
Mr. Meek. Mr. Secretary, thank you for that example. I know
that is an exception to the rule that we read in the report and
what the officers tell me of their concerns and issues with the
fact that we have two agencies pretty much doing the same
thing, and we can break down the competition and duplication of
investigative actions, or lack thereof, if we were to come
together.
For the life of me, for an agency that has pulled together
22 legacy agencies, to break down, because the answer cannot be
in the second-stage review, which I have read, everything
reports directly to the secretary or under secretary.
Answer, what is the problem after that? I would feel a
little bit more comfortable if it was not the borders. I would.
I would say, well, you know, they will get around to it. That
will be fine. It is an in-house thing.
But it is beyond an in-house thing because we see the ball
dropping in the middle and it is example after example, and we
are getting hammered and the department is getting hammered. So
it is our job and it is your job to make sure that we do what
we are supposed to do.
I do have a second round of questioning. I do not want us
to get too much off of our time. Maybe we can have a little
better exchange next time. Thank you.
Mr. Rogers. I thank the gentleman.
The chair now recognizes the gentleman from Indiana for any
questions he may have.
Mr. Souder. Thank you.
I want to thank the inspector general for the report, which
more or less to some degree was stating the obvious. It does
not take a rearview mirror to see that there were going to be
problems with this. Quite frankly, when you are trying to get
past a problem like terrorism or narcotics, I prefer to be in a
car where somebody checks the rearview mirror. History may not
be exact, but often it rhymes.
In looking at the structure of this, I raised concerns
about this from the time of the creation of the Department of
Homeland Security in on the ground. I want to say that I think
much of what you said is absolutely true. It is cultural.
Anytime you merge an agency, you are going to have divisions.
If we looked at the Department of Defense when it was first
merged or how we did the Joint Chiefs, you are going to see
different types of problems.
I would argue that to some degree this is cultural, but you
have some structural underneath problems that have been kind of
attempted to be ignored, some of which are financial. The
deportation questions, the detention space questions, the
number of agents you have on the border, all that may be
related to just that we have played this shell game where we
will have a border emphasis for a while, and then a deportation
emphasis. We have to face up to the fact and try to do multiple
things.
But when I bring to the table, and I have been tracking the
drug issue long before 9/11, and the Department of Homeland
Security, even more so than DEA which is targeted for drugs
particularly, but you have more agents that have more to do
with 20,000 to 30,000 people dying a year of illegal narcotics
in the United States. In trying to chase the occasional
terrorist, we cannot forget that this is constant terrorism,
terrorizing families all over the United States.
You have critical departments in your agency that, under a
merger, would have had a logical place, but illustrate the
depth of the problem. One is the Air and Marine Division. The
concept of the Border Patrol agency is a picket fence. We have
had this debate for years between the Customs people and the
Border Patrol people.
I have been with the Customs people actually in undercover
things where they have evaded the Border Patrol people because
sometimes the picket fence concept will take down a case, as
you referred to like heroin, that needed to get through and set
up a broader one, and we have not had that kind of
coordination. Theoretically, we need that kind of coordination.
But when you are doing a drug case, by definition there is
not a picket fence. The Air and Marine Division is down in
Colombia. Can you guarantee me that by putting them under a
Border Patrol agency that you are not going to reduce the hours
that we need in the P3s in Colombia? What about the transit
zone? If we cannot control the transit zone in the Caribbean
and the Eastern Pacific, our whole drug war falls apart.
We are spending millions of dollars at the grassroots
level; billions of dollars trying to fight illegal narcotics.
But if you all of a sudden take the Air and Marine Division,
which in fact you have done, and rather than having it be a
fungible division that goes all the way from Colombia, the
Caribbean and the Eastern Pacific, and then in the United
States, and try to say either you are ICE in investigations or
you are Border, it does not fit. There is no where to put it.
As a result, what you have had to do is stick it under one,
then debate whether it is going to go to the other. You have
Air Force pilots who have done this for 20 years. They come
into Homeland Security or Customs agency, and now you are
telling them they are going to report to a Border Patrol
person. It is not going to work. They are just not going to
sign up. You are going to gut one of the most effective
agencies in United States history.
Then we get to the Shadow Wolves. Here we have a huge
problem on the southwest border, as well as up in upstate New
York, where we have a history of Customs problems in the Indian
nations, which often do not even recognize an international
border. They are on both sides. We have one group, the Shadow
Wolves, who were constructed by Mr. Bonner years ago, and they
are fungible. They sometimes go work with the Mexican
authorities; sometimes they do investigations; sometimes they
are on the border. Then they say, ``Okay, you are going to be
CBP and you are going to line up and be like a traditional
border patrol agency.'' It does not work.
Theoretically, you could have the two divisions merged and
still have your different ways to do it. And then it is even
more exaggerated in the intelligence stuff because now the
Border Patrol want to stand up this sub-intelligence agency
because they are looking for different things. So while
theoretically these stovepipes can be connected, because of
your internal structure, instead of consolidating intelligence,
we have actually proliferated intelligence.
Now, nobody is arguing that you are not going to have
divisions inside a merged division, but you would not have in
some sub-parts of your agency this artificial, illogical
division between the Investigations Division and the picket-
fence border-type thing. It does not take a rearview mirror. It
does not take an advance mirror. It does not take any rocket
scientists to say, look, there are exceptions to this, and
either you need to accommodate the exceptions or you need to
restructure your agency. Thus far, you have not effectively, in
my opinion, been able to deal with this.
What we have seen as a practical matter, you are getting
more seizures at the border, but what you talked about, just
because we are stopping more people; we have more people on the
border. It is not because of any advances in the department. In
fact, in the department you have gone backwards.
Take the heroin case. I find it a bit offensive on behalf
of the Border Patrol historically to say that they would have
not turned that case over; that in fact, they might have gone
to DEA; they might have gone to legacy Customs. That is not
something that is new because of the way you structured your
agency to put it back in the car. That was what they were
supposed to do a long time ago, which was to check. We need to
work for that kind of division, but I do not think that is
because of your new merger.
So if we get to have some more questions, I will, but I
wanted to raise those to your attention. We have not had the
chance to talk yet, but this is something that some of us have
been raising even from the time this agency was merged; how
were you going to address this kind of diverse agency you have,
and do not forget about narcotics, while you are trying to deal
with terrorism.
Mr. Baker. Thank you. I particularly appreciate your
remarks with respect to the Border Patrol because I agree that
their conduct with respect to narcotics cases is not the result
of a recent merger or the changes in the organization. It is
longstanding MOUs with the DEA and others.
I would say about Air-Marine operations that they are an
immensely valuable resource, and I think last year probably set
a record for interdiction, so something is still working and
working very well.
That is one reason why I do not think, to use
Representative Meek's analogy, that this is spoiled milk. There
are many stories of things that go wrong, but they are by and
large exceptions and we remember those stories and they get
repeated precisely because they are exceptions. I do not think
that the story of what happened in New York with 138 pounds of
heroin is an exception. It is the rule. A lack of cooperation
is the exception.
Mr. Rogers. I thank the gentleman.
The chair now recognizes the gentleman from Texas, Mr.
McCaul, for any questions he may have.
Mr. McCaul. Thank you, Mr. Chairman.
In this case, we have a disagreement, I guess. The IG comes
forward with a report advocating a merger and then the
department comes out and says, no, we disagree with that. A
merger would produce, and I am quoting, ``a protracted period
of organizational turmoil that is unnecessary to achieve the
coordination necessary between the two agencies.''
If this has already been asked, I apologize, but obviously
our biggest goal post-9/11 is coordination and sharing of
information and communication interoperability. The sharing of
information and intelligence is the key to our success.
Stovepipes should be a thing of the past.
So I throw this question out to you, for Mr. Ashbaugh, do
you believe that this kind of turmoil would occur if there was
a merger? And the same for you, Mr. Baker. And which of these
two scenarios better facilitates the coordination and sharing
of information and intelligence?
Mr. Ashbaugh. I think that we seem to be in agreement that
ICE and CBP need an integrator; that there is work yet to be
done to push these two organizations to working more
effectively together. The difference has to do with whether or
not the integrator is down in a single organization, and ICE-
CBP-merged entity, or whether it is elevated to higher levels
within DHS.
If you were to take, for example, the question of the
Border Patrol and whether or not it should enhance its
investigative capabilities in some way, in order for that
decision to be addressed by DHS, it would have to involve the
commissioner of ICE elevating the issue and the commissioner of
CBP responding to the issue. It would work its way up through
the chain. It would go through the Secure Border Initiative,
and then through the Office of Policy. There would probably be
a simultaneous referral to the Office of Operations
Coordination, and eventually it would go to the deputy
secretary and the secretary.
What we were proposing that that kind of decision would be
hashed out down at what I will call the merged ICE-CBP level,
sitting across the table with people who are conversant on a
day-to-day basis with what is involved in it.
As to whether or not accomplishing this is going to result
in turmoil and churn, the answer is yes. Any kind of structural
reorganization and change of this kind is going to breed some
uncertainty among the personnel as to what their new lot in
life might be. It will also generate some confusion with
respect to who is responsible and accountable for implementing.
But I do think that in the long run, it is very, very important
that we achieve that level of accountability, and the more
agile choice-making that underlies our proposal.
When we looked, and you will see in the report that one of
the things that we tried to do at the outset of this was to
understand how the government came to the structure that we now
have. We could not find a clear statement of mission or
explanation for how ICE and CBP arose to their present
condition. We could find much more information with respect to
CBP and One Face at the Border, than we could with respect to
ICE.
The question that was part of that effort was whether or
not the current situation is entitled to some deference because
of the way it got there and because of the thinking that led to
it. What I am saying is that in our part of that review, we
really could not find a coherent justification for how we got
to where we are. The argument seems to be in large measure that
the organization that we have is the one that we should keep,
and that changing it is going to create so many disincentives
that we should not address them.
Honestly, there will be turmoil. As I said, there will be
loss of productivity, but at the same time I believe that the
turmoil will not be as great as the department is
characterizing it. There is a considerable amount of goodwill
on the part of the employees of ICE and CBP in support of a
merger that would help a long way in making it successful, and
that what we are talking about is restoring, not recreating,
not inventing, but restoring processes that many of the legacy
employees still remember and know how to accomplish.
So yes, there is a cost, but I did think that that is not
the end of the debate and that we really do have to consider as
well whether or not to go forward.
Mr. McCaul. So in your judgment, a merger would streamline
the bureaucracy, enhance communication flow, and overcome some
of the bureaucratic obstacles?
Mr. Ashbaugh. No, it is not a silver bullet. It is not
going to solve some of the traditional problems that we saw
with INS and Customs back when they were legacy agencies, but
we do think it would rationalize and render accountability with
respect to the important choice-makings that are associated
with trying to make this operation work.
Mr. McCaul. Mr. Baker?
Mr. Baker. We would lose a year in the effort to control
the border as people struggle with the question of, well, who
do I work for, and what the badge looks like; what kind of
uniforms are we wearing; who do we work for. Those sorts of
questions would, as they did in the period that helped cause
some of the problems that the inspector general has identified,
cause great uncertainty and, as I think the inspector general
recognizes, cause a lot of turmoil.
He hopes that it would not be too bad, but in fact I do not
think that the Inspector General's report really looks at that
question. It simply says, well, it might not be as bad as you
fear because people still have goodwill. But I think that
goodwill is part of what we count on, too, to make the smaller
changes, but essential reforms that we are making work. In the
next year, that is much more likely to produce results than
starting yet another organizational mess.
So our view is that you need to start on the smaller
reforms now. On the question of information-sharing, I have no
doubt that information-sharing is going to be handled better
for the short term and for the long term under the kinds of
reforms that the chief intelligence officer is planning for the
department than under a reorganization. I say that because it
is important for ICE and CBP to be sharing intelligence, but it
is also important for ICE and the Coast Guard to be sharing
intelligence. It is vitally important for TSA to be sharing
intelligence about suspect passengers before they arrive at the
customs desk.
We need an intelligence-sharing architecture that covers
the department. Saying, ``Well, we will get intelligence-
sharing by sticking parts of the department together and
letting them share,'' is not a solution.
Mr. McCaul. Thank you.
Thank you, Mr. Chairman.
Mr. Rogers. I thank the gentleman.
You made the characterization that we would be starting
another organizational mess if we were to merge these back
together. It seems like we have an organizational mess by the
separation of the two agencies and we would be remedying it by
setting it back together.
Once again, you use the one year that it would set us back.
I still do not understand how you come up with that idea--that
it would set us back a year in securing our borders if we did
this. Tell me specifically, other than who you would report to.
I think an organizational chart remedies that; who you work
for and what the uniforms are. How would we be set back a year?
Mr. Baker. During the period in which the organization is
being structured, people will of course be doing their jobs as
they understand them, but it will be very difficult to try
creative new things because they do not know who is in charge;
they do not know what the rules are.
Mr. Rogers. But you acknowledge what we are doing now is
not working.
Mr. Baker. I do not. I am sorry. I do not mean to say that
it is not working. I am troubled by the stories that the
Inspector General collected. Those are stories from a
particular point in time and they are the reflection of ICE's
very substantial budget difficulties, which made it difficult
for them to meet all the needs that CBP had. They are the
result of a lot of confusion arising from the reorganizations
that had already occurred.
Those things are sorting themselves out. If we let them
sort themselves out and address the individual problems as they
arise, we are much more likely to come to a stable, workable,
properly functioning system than if we say, ``Oh well, I just
want to throw the milk out and start over again.''
Mr. Rogers. By what point in time? When do you think we
will have that circumstance corrected and we will have a finely
tuned, well-running machine?
Mr. Baker. Well, this is the federal government, so we will
have a properly functioning mechanism for handling detention
and removal within months.
Mr. Rogers. Three months, six months, nine months, 18
months?
Mr. Baker. Six months. I believe that we will get the--
Mr. Rogers. How about the intelligence gathering and
sharing?
Mr. Baker. We are already doing a better job there. Again,
I believe that we will have substantial improvements in that
within the year.
Mr. Rogers. Okay.
Mr. Ashbaugh, you talked about three options to consider,
and you came down on the third option, mainly because the first
two were eliminated by the Second-Stage Review. Isn't that
true?
Mr. Ashbaugh. I am sorry. No. The other two options were
not eliminated from our consideration.
Mr. Rogers. But for all practical purposes, through the
Second-Stage Review, he was removing those two options from the
table, wasn't he?
Mr. Ashbaugh. I am hesitating on how to answer your
question. I do not want to suggest in any regard that--
Mr. Rogers. I am trying to discern whether or not you
endorsed a merger because it was the only real option for you.
Mr. Ashbaugh. No. We considered all three of the options
fully.
Mr. Rogers. Well, why were you limited to just three
options?
Mr. Ashbaugh. I guess it is because those were the only
options that either had been suggested to us by the people that
we spoke to or that occurred to us on our own. There were other
options. For example, we could have suggested reverting to the
precise structure that was set forth in the Homeland Security
Act, which really was a return to the old separate, autonomous
Customs Service on the one hand, and INS, minus immigration
benefits on the other. We would not propose that.
One of the things that we did consider and we strongly
endorsed was the effort at eliminating some of the stovepipes
associated with the creation of CBP's initiative of One Face at
the Border. So there were a number of different choices, I
suppose, that we made, but the three that we focused on are the
ones that are described in the book.
Mr. Rogers. Let me, and I know my time is about up, but do
want to kind of focus on this timeline. You said that you spent
seven months and interviewed over 600 people in this audit that
you conducted. When were those interviews completed? I know
that your report has been embargoed until today, but when was
that product completed?
Mr. Ashbaugh. We had a rough draft which we gave to the
secretary before his 2SR decision in I believe perhaps late
June, but the formal draft, the first draft went to the
department on July 20 or thereabouts.
Mr. Rogers. Okay. My time is up. I look forward to my next
round.
The chair now recognizes the gentleman from Florida, Mr.
Meek.
Mr. Meek. Thank you very much, Mr. Chairman.
Secretary Baker, I have some of the same concerns that the
chairman has as it relates to the magic number of 1 year. Maybe
that will go along with the sour milk comment, but I can tell
you this, I am quite concerned. I am someone who has worn a
badge before in my professional career and I know the kind of
walls that are built between law enforcement agencies as it
relates to investigations in cases.
When I say I smell a 9/11 coming on, I can see the same
ingredients that I read in the 9/11 report, that I am pretty
sure if you go to the FBI or the CIA, they said, they, you
know, we have a remedy for that; we recognize that that is an
issue, and we are working on it.
The bottom line is that, like I said, it would be okay if
it was not dealing with national security at the borders. If we
have one agency thinking that the other agency is following up
on a case, that is a problem. I just want to just share with
you, just as one member on this committee, and I do not think
this is a Democratic view. I think this is a bipartisan view
that something has to be done, more sooner than later.
And just having the department say, you know, we have put
in mechanisms to make sure that this does not happen, and then
it happens, I take great responsibility for what happens in the
department and around the department, especially when I sit on
this subcommittee and I am supposed to push the cards.
So there will be some amendments or amendments that the
department is probably going to have to lobby against on the
committee because every time we get the opportunity, we are
going to take these inspector general reports and what we know
from what we read in the paper and what we watch on the news of
the problems with the department as it relates to management,
and try to put them into action. I do not think that is
personal. I think it is the business of making sure that we
protect the American people, even though I know the department
feels that way, too.
I do feel very strongly that we can merge. I feel we can. I
do not feel it would take a year. I feel that agencies, law,
men and women, can come together, especially as it relates to
the frontline folks. I do not know how the brass feels about it
in both agencies because they may, someone may have to take a
lower rank or a higher rank, or attrition may make it all come
together. But to say that it is going to set us back a year as
though we are in the business of protecting the homeland for
the next 5 years, this is something that is going to go on
forever. I think it will be able to help us.
You answered one of the questions that I had for my second
round as it relates to information gathering, but I guess, Mr.
Secretary, how would you, looking at this inspector general's
report, and I want to say thank God for the inspector general.
They are supposed to look at you in a way that will improve the
department. Sometimes it is not necessarily politically correct
to scrutinize the department, but you know, let's thank God for
the career service and members of Congress like myself who see
that kind of activity and call foul.
I think it is important that we respond in a better way to
what the inspector general is saying, versus the second-stage
review has taken care of this, or we feel that there will be
improvements. Will there be some sort of report? Are you all
thinking about a report of saying, okay, we know that there are
members on the Hill that would like to see us put together. I
have already gotten the message in my office that you all are
against the merger. The White House is against the merger.
So if you get things lay the way they are here in
Washington, it is pretty much a done deal that it is not going
to happen. But there are some members of Congress that are
concerned about it.
What are some of the reassurances that you all want to put
into place outside of saying, ``Well, whenever you all call us
back to the Hill, we will report on our improvement''? Will it
be an inside report or will it be an evaluation by your policy
shop? Or will it be something that the secretary will do in a
written report to members of Congress in answering the 14
recommendations that the inspector general has made, or the
three points that we continue to talk about here at this
meeting?
Mr. Baker. Thank you, Representative Meek.
I feel the same way about the Inspector General report.
They are not always easy reading, if you are in charge of the
organization, but it is very important to have the truth told
to you about problems in your organization. We do not happen to
feel that the Inspector General devoted a lot of time to
deciding what the consequences of particular options would be,
but the focus on the difficulties that were faced earlier in
the year in ICE and CBP is a very valuable thing.
In terms of what we would be proposing to do, in the first
area of detention and removal, we propose to have not just a
program office, but a substantial number of metrics that we
will be using to manage detention and removal, and to look for
the kinds of deterrent effect that we hope to have. There is no
reason why a summary of what is happening, using actual metrics
to try to measure the results of programs cannot be made
available.
Mr. Meek. I am a couple of seconds over my time. I heard
the chairman saying we will go a third round, which I know you
are looking forward to. I am going to yield back the balance of
my time, what is left.
Mr. Rogers. I thank the gentleman. I would backup what he
said, that our concerns about the current status are
bipartisan. It is not a Democrat or Republican perspective.
The chair now recognizes the gentleman from Indiana for
additional questions.
Mr. Souder. Mr. Baker, it is kind of disturbing because you
stated twice in some detail to the committee, which I find
fairly disturbing, that the reason you do not want to revisit
this is because you are worried about the time in deciding on
uniforms and selecting logos.
I am not asking for you to spend a whole bunch of time
digging out documents and so on, but I would appreciate it if
you would respond back to the committee approximately how many
man-hours were spent on determining the logos and the uniforms;
whether it is 100 hours, 2,400 hours, 24,000 hours.
We have the ability to ask for meeting documents and all
that type of stuff, but that is not a good exercise of our
time. But I would like to get an idea of how much time you
actually spend on this type of thing, because if it is just a
couple of days, we can afford that. If it is a waste of time,
actually they can just keep their old uniforms. But twice you
have raised that, I am sure symbolically more than anything
else.
Mr. Baker. Yes.
Mr. Souder. But in fact I know in the department there was
a lot of consternation about what they are going to look like
and how to do that. We want to make sure, and that is why I
would like to have some kind of an estimate actually for the
record, just an estimate, because we do not want to spend a lot
of time on that.
At the same time, that is not what this is about. It is not
about whether they are going to have to change their logos. We
want to have the best and most secure system possible. If
necessary, we will ask some of our staff to design new logos,
then you will not have to worry about that.
Were you aware that this committee under former Chairman
Cox within the first year at a Republican members meeting voted
unanimously to merge these two divisions back together almost
immediately, and that we immediately have bipartisan support?
Were you aware of that before Secretary Chertoff even came in
under Secretary Ridge that the members of the Homeland Security
Committee almost from the day we were organized unanimously
opposed this?
Mr. Baker. I am aware that this has been a prospect and an
issue that has been seriously examined several times and has
substantial support. I would suggest, and you are quite right,
I was speaking symbolically. There are many costs to a merger
and the costs grow and the benefits diminish as time goes on.
So I think it would be unwise at this point to take an action,
even if it might have been a good idea 1 1/2 years ago.
Mr. Souder. When we raised it, we were told that, well,
give it a chance and see if it is working. We have continued,
on the Republican side and on the Democratic side, to feel that
it is not working. And then Secretary Ridge said, well, there
is going to be a new secretary. Then we got a new secretary and
we were told to hold off, not to pass the legislation, again
which had bipartisan, basically unanimous support on this
committee; that we should wait until Secretary Chertoff was
going to do a review.
Then he did a review which we disagreed with. It was
supposedly going to be in this bill. Actually, it was in the
original mark-up, and Secretary Chertoff first called this
committee, calling anybody he could get a hold of, then called
the leadership to ask it to come out.
What we see is a continual pattern here of basically a
clear position in the United States Congress. It is not new. It
is not something we just came up with. It is something that we
have had in a bipartisan way, those of us who have worked with
this for a long time. And it is kind of hard to understand the
intense opposition of your agency when so many people from such
diverse backgrounds, from border States and non-border States,
it cannot be argued, oh, we are just representing the unions. I
don't represent the unions. I do not have any border people. I
am in the inland part of the country.
I am interested in trying to make this work, but what I
have seen is that the concept of what you are trying to do is
to take and have a border and then do the investigations and
separate it. It is like horizontal management, when in fact the
challenges are more vertical. Here is the terrorist coming
through; here is the contraband like narcotics coming through;
and here is illegal immigration. The seamlessness has to go
with the different challenges that are coming at the border. It
is not like it is going across the border and you structure it
from a management standpoint an agency that is like this, when
your challenges are really vertical challenges.
Okay, we have illegal immigrants coming in. Are we going to
deport them? How are we going to handle them? A percentage of
those illegal immigrants are potential terrorists. How are we
going to handle them and what agencies are they going to be
handed-off to? How do you relate to the FBI? How do you relate
to the terrorist organizations?
You have another cluster of contraband, some of which is
Department of Commerce-related, if they are bringing things in
that break the intellectual property rights of manufacturers in
my district. That is one type of challenge. If it is drugs, it
is another kind of challenge; whether you are working with DEA,
it is another kind of challenge. And then you have this whole,
they are coming in from Colombia into the Eastern Pacific, and
then into Mexico; then they are popping up to the border; then
they are moving on in a seamless drug thing, and we have these
arbitrary things where you have to negotiate. Okay, we are
going to hand this to ICE; we are going to hand it to DEA; and
there is not somebody over in a logical, and my background is
management, in a logical management structure.
I understand what you are trying to do. The reason I went
through that brief history is I believe the reason the
divisions are there is because we had some disagreements in
Congress in the creation of the Department of Homeland
Security. One was we were not dealing with deportation and
illegal immigration. Because of that, the Judiciary Committee
lobbied aggressively to make sure that ICE could stand strong
so that we could try and address that question. But your
structure is based on a historically irrelevant argument at
this point, because we are all trying to figure out how we are
going to deal with work visas, with deportation, with more
detention centers, and no longer is that part of the
immigration structure going to be ignored.
I believe your artificial division, if you look back on it
historically, was based on that debate, which is now
irrelevant, and your structure that you are trying to defend,
understanding you had a lot of blood spilled on the ground to
get to where you are, and I understand that is based on a
premise that does not exist anymore.
From the pure management analysis, which the inspector
general went in going, why did you do it this way? It has
actually led, and is going to lead, to more duplication and
logical stovepiping. Quite frankly, it is going to lead to
logical stovepiping, the way you have it, because of this
multi-mission at the border and the multi-mission inside ICE.
By definition, you are going to have stovepiping because it is
not stood up right.
I would be interested in your response.
Mr. Baker. I think that, first, I was not around for the
creation of this particular organizational structure. I am not
familiar with the details of that history. But I think the
response that you have gotten, the reluctance to make this
change is a reflection of our direct experience with the costs
of major organizational change. It really is a staggering cost
and it will set us back very substantially, a year or more, in
our effort to control the border if we have to go through the
wrenching changes that will come with that. It is, of course,
not choosing the logo. It is a question of defining the
mission, defining the jobs, choosing the people, setting the
culture.
Last point, with respect to whether ICE is an appropriate
organizational structure, there really is quite a bit of value
in recognizing that ICE is among the largest law enforcement
organizations in the country, and building it around the
culture of law enforcement, of knowing how to make cases and
how to do evidence chains, and how to work with prosecutors.
Those are things that law enforcement agencies treasure and
select for and teach everyone inside their organization to do.
Having a consistent culture that values all of those things has
great value for the country.
Mr. Rogers. I thank the gentleman.
Mr. Ashbaugh, a little while ago you heard reference made
to the fact that several changes have been implemented that
have made significant progress from the time you completed your
interviews to date, to improve those 14 deficiencies that are
outlined in your report.
Did you note in your report or your investigation and your
interviews any management machinery being put in place that was
in fact going to remedy those in the short term? I would think
the last five months would be a short term.
Mr. Ashbaugh. Would you repeat the last part of the
question?
Mr. Rogers. Did you note any management changes that were
being implemented or discussed or presented that were going to
remedy the 14 deficiencies that you found in these two
entities?
Mr. Ashbaugh. We are leaning in the direction of changing
it. I will try and answer it this way. With respect to 2SR
itself, the report was not able to assess the potential or the
achievements associated with it. It was too inchoate at that
point. There was, for example, a significant management meeting
in March of 2005 in which they discussed some of the specific
issues relating to the decline in referrals from CBP to ICE and
other things of that sort, but we were not able to assess the
consequences or the results of it.
So I would have to say, I do not want to say that the
answer is no. The fact of the matter is that the department
since January of 2003 has been improving in its efforts at
management. It has been a lengthy process, rather than
something that could be confined to the last 5 months.
We have tried in the report to give credit for some of the
achievements. For example, there is an MOU that was an effort
to relate ICE and port-of-entry issues, and to integrate and
better coordinate those two. So there have been activities all
along, but we are not in a position yet where we can assess 2SR
per se.
I do want to reaffirm our intent to do that as we go
through the examination of the 14 recommendations and the
follow-up on that.
Mr. Rogers. You heard Mr. Baker indicate earlier that he
acknowledges the 14 recommendations; that those symptoms do
exist. But he went further and said that it does not seem that
the IG spent a lot of time looking at what the consequences of
a merger would be. Do you think that is an accurate
description?
Mr. Ashbaugh. I am sorry. Would you repeat the question
again?
Mr. Rogers. What the consequences would be; you recommended
a merger.
Mr. Ashbaugh. The costs?
Mr. Rogers. My understanding of Mr. Baker's assessment was
that when you said in your report, we think a merger is in the
best interest, that you did not look at or consider the adverse
consequences of that merger. Is that an accurate assessment?
Mr. Ashbaugh. Oh, no, it is not an accurate assessment.
With respect to costs, we were clearly frustrated over our
inability to get good data from the department that we could
try to reverse-engineer to come to some kind of calculation on
what we had spent already. But fundamentally, our assessment is
that this is a change that would be very beneficial to the
department, and we do not see an adverse consequence to it.
Mr. Rogers. Okay. This is my last question, the one you
have been looking for, for Mr. Baker.
You indicated, not you but Mr. Ashbaugh indicated, that
they never were able to discern through their interviews or
investigation the essential reason why the two agencies were
separated. In reviewing the history of the entities that you
now have supervision over, do you know in essence why they were
separated, why ICE and CBP were separated?
Mr. Baker. I was not here for that and do not have any
personal knowledge of that.
Mr. Rogers. Thank you very much.
The chair now recognizes the gentleman from Florida, Mr.
Meek.
Mr. Meek. Thank you, Mr. Chairman.
Mr. Baker, still, I guess I want to go back to first-base
again, if that is okay with you, coordination of apprehension,
detention and removal operations; coordination of investigative
operations; and coordination of intelligence activities.
Now, that is the bread and butter of law enforcement, just
in those three categories. I asked you in the last round of
questions, will there be some sort of written report to members
of this committee and to the full committee on addressing the
issues that were pointed out in the inspector general's report.
The reason why I asked that is not because someone wrote it
down and said you need to ask this question. I am asking this,
being an experienced member now on the select committee, and
now on this standing committee, and being a member of the Armed
Services Committee, you know, it is almost like, boy, I am glad
that hearing is over.
Because I am going to tell you right now, Mr. Secretary,
you have a real job cut out for you defending the department's
position on this. It is not just a report. It is what we read
in the paper. It is with the officers we talk to. It is very,
very difficult to defend.
Like I said, this is a bipartisan feeling. If something
comes to you, and you say, you know, I should do this as a
policymaker, and then the agency says, no, we are taking care
of that. I think we just recently a couple of minutes ago have
gone through the timeline of how many times we were put on
pause. I even feel funny as a policymaker speaking to an agency
person and saying, well, can we? Because it is not an ``ask''
kind of situation.
That is the reason why I am trying to work with members on
this committee in a bipartisan way of taking some action. I
believe the only way we are going to get to where we need to
get to, looking at the three things I just pointed out, leave
alone the possible cost savings that may happen out of this
that was not addressed in the inspector general's report, I
would point out. But you are automatically saying that there
will be costs for the merger.
Anyone knows that streamlining law enforcement agencies,
especially when they have similar functions, will be able to
help resolve many of the issues that are in the report.
So I guess I would go along the line of, and I am going to
ask the question again, and maybe you can answer it a little
better: Will there be some sort of, to the 14 recommendations,
a written progress report from the department on the progress
in those areas, or in the three areas that were addressed here
at this committee meeting, especially dealing with the issues
of detention and removal operations and intelligence
activities, coordination of it. I think that is important. I
really think that is important for the reason why we are here
today.
And investigative operations, you do not have to be in a
law enforcement agency to know that there is going to be
competition between two agencies. I mean, it is just like a
human thing. It is going to happen. Oh, we are not going to let
them do this; we are going to do it. I mean, that is just the
way it goes. And it is very innocent. Everyone that wears the
badge and everyone that wears and ID with a security clearance,
their number one job is to protect Americans.
But looking at the overall picture, that is not happening
under an atmosphere of competition. You just cannot say, well
you know, you all go out there and play. I would not say
``play,'' but you all go out there and do your job and we
expect that everyone is going to be a grownup when it comes
down to the final analysis, because they all have to report to
who, the secretary and the Congress about what they are doing
to justify their funding.
So when we see the lack of communications here, and the
lack of management in some areas, you may say that they are
addressed, but it is a very, very difficult position to defend.
I know you have your legislative team on the Hill, but I do not
know about the chairman, and I do not know about the other
members of this committee, but I want to work with the
department. That is my job, to help the department in any way
that I can.
But when I feel the department is more interested in
management the way we see it, versus what the inspector general
sees it, or the American people see it, then that is when we
start having a rub. I believe we are starting to rub right
about now. I do feel whenever the green light is given to all
members of this committee that it will happen and it will not
be an ``ask'' kind of situation.
So I guess this is more of a statement, Mr. Secretary. I
would not ask you to respond. I think you have tried to respond
to some of the issues, but this is a very, very difficult time
for all of us. Once again, I am going to state that I know that
there will be an amendment that will come forth in coming days
to germane bills to try to make this happen. I hope that not
only a good discussion comes out of it, but good action comes
out of it, and the department can find a way that it can be a
part of something good in helping us to be able to all manage
this Department of Homeland Security and make it better than it
is right now.
So I look forward to the coming days. I look forward to
hopefully some re-thinking in your shop and also with the
secretary as it relates to this, and I believe the White House,
too, because it is important that we show the American people
that we are trying to do all we can to protect them. Some of
the statements that are made here and there may not be what we
want on the billboard, but I think that we really are going to
have to work hard in the coming days.
So I am imploring with you and with the department to find
a way to be for streamlining and integrating those three points
that I have pointed out, the investigative, detention and
removal, and information and intelligence activities. Or we
have a recipe for something bad to happen in this country. You
do not want to be a part of that, and I definitely do not want
to be a part of it. No one wants to be a part of it. So let's
start working together on this.
Mr. Baker. I would be delighted to work together with you.
We do want the same thing. We do want to fix the problems. I
would suggest that as you think about what should be done, you
might take a look at the 20-page response that we wrote to the
Inspector General in which we did not argue that they were
wrong about a lot of things, but we pointed out a lot of things
that simply had not gotten recognized where there was good
cooperation; where there was good coordination; there was good
intelligence-sharing.
Mr. Rogers. I thank the gentleman for yielding back to the
chair.
I recognize the gentleman from Indiana for another round of
questions.
Mr. Souder. Thank you very much, Mr. Chairman.
Mr. Rogers. I am sorry.
Ms. Lofgren, she has been sitting here for a while, if you
do not mind.
Ms. Lofgren. Thank you very much.
I will just say I have learned in the Congress how
unsatisfactory are the words ``I told you so.'' When these
measures were considered, we had a very spirited debate in the
Judiciary Committee about the division. Those of us who have
been around the immigration subject for several decades
suggested that everything in the inspector general's report
would happen, and in fact it has.
I think that the easiest way to solve it is to undo the
division, frankly. I am hopeful, it is certainly not Secretary
Chertoff's fault it was divided. The Congress did it, not the
secretary and not you. I think that we ought to be partners in
fixing it.
It is not, in my judgment, just, well, take for example the
issue highlighted on detention space. That is predictable since
the ICE does not have ownership. But it is not just detention
space. It is a whole system. We lack adjudicatory power. That
is aggravating our detention space because we do not have
enough administrative law judges to process the cases, which by
the way would be lots cheaper than actually doing the full
amount of detention space that is predicted.
I am not saying we do not need it. We do need additional
detention space, but not as much as is predicted, if we
actually had the administrative law judge power to adjudicate
cases promptly. So unless one agency has ownership of the whole
thing, it is going to be second-best in terms of coordination.
I am wondering, Mr. Ashbaugh, I think this was beyond your
scope, but if you could enlighten us on what you found in terms
of coordination. I suggest that if we are going to do a
Department of Homeland Security that we ought to throw in
consular services, visa issuance, along with it, because talk
about a disconnect between what is going on, and that was very
much resisted by the then-secretary of state, Mr. Powell, and
ultimately was not included.
Did you have a chance to look at that interface as well?
Mr. Ashbaugh. To look at the overseas operations of
Homeland Security and the visa security program?
Ms. Lofgren. Yes.
Mr. Ashbaugh. Not as part of this review, no we did not.
There simply was not enough time to go into an overseas kind of
examination. But I would be remiss not to remind you that our
office has done several reviews over the past 1 1/2 years with
respect to the visa security program, with respect to the visa
waiver program, with respect to the initial pilot in Riyadh.
Ms. Lofgren. Right.
Mr. Ashbaugh. And also with respect to the problems
associated with stolen and counterfeit passports, and their use
to enter the United States.
Ms. Lofgren. Let me do a follow-up question, if I may then.
It has to do with the use of technology. All these departments
are, ``crippled'' might be too strong a word, but maybe not,
with the lack of cutting-edge technology that would allow them
really to utilize the information that is available somewhere
in the system, not necessarily at the port-of-entry where they
are.
Did you have an opportunity to assess technology deployment
and usage as it relates to coordination?
Mr. Ashbaugh. No, we did not. That was an issue that we did
not cover.
Ms. Lofgren. I would suggest, Mr. Chairman, that if we are
going to ask the inspector general to do other things, that
those two issues would profit us because I first started
working with the Immigration Service in 1970. It was bad then
and it is still bad. But as the rest of the world has moved on
using technology, these functions have sort of frozen in time.
We are now paying a huge price, not just in inefficiency, but
also in security. That very much has to also be involved with
the consular services.
Now that the players have changed, there might be a
different attitude in terms of the interface with the visa
function. Nobody in the State Department even wants to do that.
It is the short-straw assignment for the State Department
employee, and maybe we could integrate that in a way that would
really, using technology, be a seamless shield against those
who wish to harm us, but also the red carpet for those who
really want to help us.
I yield back, and thanks for the recognition.
Mr. Rogers. I thank the gentlelady.
As we are drawing to a close, the gentlelady from Texas has
not had a chance to ask any questions. We will go to here if
she wants, and then end up with the gentleman from Indiana.
Ms. Jackson-Lee. I yield to the gentleman.
Mr. Rogers. Okay. The gentleman from Indiana is recognized.
Mr. Souder. Thank you.
I appreciate your time today.
I found it pretty disturbing that you could not answer the
chairman's question about why it was originally split,
especially since the committee had stated that that was going
to be one of the questions for the hearing. I think it does
suggest that the division was somewhat artificially done by
Congress and now Congress recognizes it made a mistake and we
are trying to fix it. And the administration has dug in, even
though it does not know why it was split in the first place. It
is kind of an odd situation here.
You did raise one thing, I wanted to ask Mr. Ashbaugh,
because I have not been able to see the report. I have not seen
it yet at this point, or the administration's response. I
thought it was an interesting question about should there be an
ICE, which is a culture of investigations, where we train
people to do investigations.
I think that was somewhat behind the Judiciary Committee's
concerns that in deportation and immigration, that there was
not enough of a culture investigations in deportation, and they
wanted kind of a division. Because part of what we have here is
we had a Border Patrol and we had investigations, and Customs
was kind of the investigations and Border Patrol was the Border
Patrol.
INS was kind of floating around uncertain what to do. So we
took part of the Customs and put them as CBP, and part of them
in investigations, and arbitrarily split groups that were at
least reporting to the same boss.
Now, what I wondered is that in your report, did you look
at this question of is it good to have an organization that is
focused on investigations, that are trained to do
investigations, and in fact are they doing more than they did
before? Now, have they improved the investigatory training? Are
there more people? Is there a culture of investigations any
different than we had under the legacy Customs?
Mr. Ashbaugh. The department has taken a very important
first step in terms of trying to establish a common culture. It
comes through training, which is a traditional way of doing it.
It is an effort to cross-train so that the immigration agents
now have a better understanding of customs law and vice versa.
It is also true that the 1811s, the special agents, the
criminal law enforcement investigators are regarded as having
something of a specific culture, if you will.
But by and large, INS and Customs were largely part of that
culture, even the Border Patrol, and even the inspectors on the
line were also doing enforcement in their own way, not with the
full power, not with all of the benefits.
Mr. Souder. In fact, weren't they increasing cross-training
before the creation of the Department of Homeland Security?
Mr. Ashbaugh. No, I am referring to cross-training that the
Department of Homeland Security initiated as part of the One
Face at the Border. That is described in the report and we are
very positive with respect to that initiative.
Mr. Souder. But in fact, weren't the Border Patrol and
Customs doing cross-training before 9/11 so that Border Patrol
people started to understand narcotics cases because we simply
had a shortage of money at the border?
Mr. Ashbaugh. You know, I cannot answer that question. I do
recall, though, that there were cross-designations between
Customs and INS, particularly at ports of entry, so that they
were able to assign some of each to the various lanes. There
was at least some effort.
Mr. Souder. And what you are describing in your report as
to what they are doing now, is that precluded if the two merge?
In other words, the cross-training that you are talking about,
the creating of more of a culture of investigations, would that
be at all precluded if the two agencies merge?
Mr. Ashbaugh. No, it is not precluded. In fact, whether you
merge or do not merge, the continuation of the training and the
initiative is a very important one to Homeland Security.
Mr. Souder. Mr. Baker, do you believe that if you merge the
two agencies, you still could not have one now reporting to a
common boss, but one that is more investigatory and one that is
more border, but that it would coordinate better how the
investigations were connected with the border? Do you see it as
necessarily precluding a culture of investigations in an
investigations unit if these two agencies were merged?
Mr. Baker. I think that really raises the question of
whether the merger is the solution. Just putting these two
agencies under the same head, after all, they were all under
BTS before; they are now under the secretary. Putting them
under some new person as the head does not change their
relationship. What is going to be required is working out
individual kinks in that relationship.
That is something that the secretary is working on now. It
is exactly the sort of thing that would have to be done by
whoever headed the merged organization. The task does not
substantially change and it does not substantially advance us
toward the goal, simply to say, well, they all will report to
the same place.
Mr. Souder. A common line organization does in fact matter,
though. If you have two separate lines, and then have staff and
policy and intelligence inputting into those two separate
lines, in fact a line structure does matter because you can
develop two cultures that are competitive if they are not
reporting in the same line.
That is what I assume is what the Inspector General was in
effect saying in your report, was that in fact having a common
line structure would facilitate management. Is that the thrust?
Mr. Ashbaugh. Yes, it is.
Mr. Baker. If I could just offer one thing. You asked the
question about metrics, and whether investigations have gone up
at ICE. We provided that information and they have gone up very
substantially, with total investigative cases were doubled
between 2003 and 2005; and arrests, indictments, convictions
and seizures are all up over the 2 years.
Mr. Rogers. I thank the gentleman.
Now, the gentlelady from Texas is recognized for any
questions she may have.
Ms. Jackson-Lee. Thank you very much, Mr. Chairman.
As usual, let me thank the chairman and ranking member for
an important hearing. Sadly though, however, and I know that
both of you in your service realize that to some extent it is
sad that we are here contending with the question of whether
mergers or the merger has worked and how we can be more
effective.
I say that in the backdrop to the responsibility not only
of this committee and its responsibilities of oversight, but
the department, the DHS, really has entrusted in it the hopes
and aspirations of Americans as they relate to the 21st-century
reign, if you will, of terror, looking to DHS as the firewall
between them and acts of terror. And of course, in this
instance, including some reasonable response, comprehensive
response to immigration reform.
So we find ourselves betwixt and between on whether or not
we can finally get to a point where we have operational
operations. Let me share with you some words that were out of a
report of the GAO. It seems that this is dated May 5, 2005. The
dating information may be incorrect here, but it looks as if it
is dated May 5, 2005.
It recounts these words: ``In 2001, GAO testified that
while restructuring may help address certain management
challenges, INS faced significant challenges in assembling the
basic systems and processes that any organization needs to
accomplish its mission. These include clearly delineated roles
and responsibilities; policies and procedures that effectively
balance competing priorities; effective internal and external
communications and coordination; and automation systems that
provide accurate and timely information.''
INS was transferred into the DHS in 2003. In 2004, GAO
reported that, ``Many similar management challenges we found at
INS were still in existence in the new bureaus.''
Mr. Ashbaugh, let me now turn to you. In the backdrop of
those words, based upon what GAO found, you comment on problems
with the merger dealing with coordination of apprehension and
detention and removal operations, the coordination of
investigative operations, the coordination of intelligence
activities. They go to the very crux, to a certain extent, of
immigration issues and as well border security, and of course
the issues of preventing those who might perpetrate violent
terrorist acts inside our borders.
So in essence, what I am seeing here is a frightening
assessment of a collapse of our system. Help me be convinced
that that is not the case at this point, but let's focus in
particular about the coordination of apprehension and
detention.
I think one of the reasons we have seen the rise of the
Minuteman, of course that is a question you may be able to
comment on, but I use that as an example, is the frustration of
the American people on let me just do it myself. We have good
people on the ground working for both the CBP and ICE. There
are good, hard-working people, but when they come to members of
Congress and say their badges have not even been changed to the
new merged entity, and they do not even have uniforms, then we
know that we have some problems in the rafters.
Could you focus in detail on the problem or the need for
work between the issues of coordination of apprehension and
detention?
Prepared Statement of the Hon. Sheila Jackson-Lee
November 15, 2005
Chairman Rogers and Ranking Member Meek, I appreciate your effort
in convening today's second hearing on the benefits of merging Customs
and Border Patrol (CBP) with Immigration and Customs Enforcement (ICE).
When the Bush Administration established the Department of Homeland
Security (DHS) in 2003, it split up the U.S. Customs Service and the
Bureau of Border Security and reconfigured them into two bureaus, CBP
and ICE. The basic responsibility of CBP is to prevent illegal persons
and goods from crossing the border. ICE is responsible for tracking
down these persons and goods if they get past CBP.
This reorganization has resulted in some coordination problems. For
instance, the training for daily border security operations is not
working well. Supervisors from one legacy agency at a port-of-entry
have not received the training to answer technical questions of
inspectors from another legacy agency. Inspectors often are told just
to do things the way they used to do them.
Much of the information sharing that is occurring at the border is
due to existing personal relationships among employees, not to formal
systems for exchanging information. For example, legacy Customs
employees still cannot access immigration databases. This means a
legacy Customs inspector cannot work at an immigration secondary
inspection point, which reduces the overall flexibility of the
workforce the Department is striving for.
Sometimes, to facilitate an investigation, ICE investigators want
contraband to be allowed to pass through the border. This is known as,
``a controlled delivery.'' While this is a legitimate investigatory
method, it is contrary to CBP's mission, which is to prevent contraband
from passing through the border. Consequently, ICE's use of controlled
deliveries has created difficulties with CBP. ICE and CBP have formed a
working group to develop a protocol for controlled deliveries that will
resolve this conflict.
Alien smuggling investigations have suffered too. In INS, alien
smuggling cases traditionally arose from inspectors, border patrol
agents, or adjudicators noticing patterns or trends. The dissolution of
INS has cut the connections between the agents who investigate alien
smuggling and the front line personnel. Also, fewer Customs
investigations have been generated by leads from inspectors.
To a great extent, however, CBP and ICE are suffering from the same
management problems that INS had before DHS was created and the
immigration enforcement functions were separated. In 1997, GAO reported
that INS lacked clearly defined priorities and goals and that its
organizational structure was fragmented both programmatically and
geographically. Additionally, field managers had difficulty determining
whom to coordinate with, when to coordinate, and how to communicate
with one another because they were unclear about headquarters offices'
responsibilities and authority. GAO also reported that INS had not
adequately defined the roles of its two key enforcement programs,
Border Patrol and investigations, which resulted in overlapping
responsibilities, inconsistent program implementation, and ineffective
use of resources. INS's poor communications led to weaknesses in
policies and procedures.
In 2004, GAO reported that CBP and ICE have many of the same
management challenges that INS had. For example, in some areas related
to investigative techniques and other operations, unresolved issues
regarding roles and responsibilities give rise to disagreements and
confusion. While initial steps have been taken to integrate the former
immigration and customs investigators, such as establishing cross-
training and pay parity, additional important steps remained to be
completed to fully integrate investigators.
INS was a dysfunctional agency. When its enforcement
responsibilities were taken over by DHS, they were divided between two
new bureaus. The purpose of today's hearing is to decide whether the
enforcement functions should be consolidated again. If the problem were
just structural in nature, consolidation might make sense; but the
problem is not just structural in nature. The bureaus still have
serious management difficulties that need to be addressed. Our
witnesses, Honorable Robert L. Ashbaugh and the Honorable Stewart
Baker, will assist this body in elaborating on the nature of those
problems.
I yield back.
Mr. Ashbaugh. First off, the GAO's description of the
problems endemic to INS are very familiar ones. The argument
and the contention in our report was that the playing field has
been changed by the fact that the entities are now divided or
severed from each other. The concern that we have relates to
the fact that in the detention arena, it is probable that there
is no fix that the nation can afford; that in terms of
identifying, locating and removing the over-stays and the
people who abscond, the numbers of so drastically out of sync
that we are left using the resources that are available to us
as rationally and as disciplined a way as we can.
There is some good news. The detention and removal
operation at DHS has been able to decrease the average stay of
the detainees. As I understand it, EOIR, Executive Office for
Immigration Review, has also been able to accelerate its
processing of cases so that the result is with a fixed level of
bed space, ICE is able to house more detainees than it was able
to in the past. So there is some good news in that respect.
The concern that we have in our report relates to the fact
that CBP is not at the table when it comes to negotiating over
how we are going to use these very finite and scarce resources.
I do not think that is a complete answer to your question,
Congresswoman, but at least let me start with that. If you have
a follow-up, maybe that will help.
Ms. Jackson-Lee. I do. I am going to allow you to follow up
because I want you to focus on what I have just said, the
coordination of apprehension and detention and removal
operations. So I would like you to take and answer where the
coordination is failing between CBP and ICE.
And then I would like to follow up by asking the question,
as you have assessed CBP, one of the issues that have come to
our attention is lacking, and you put the funding issue, so
let's put the funding on the table, but to do your job, you
have to have the resources to do your job.
If you do not have, for example, and I am wondering if you
assessed that, and this is CBP, because they are frontline
border patrol agents out and about and others, power boats,
helicopters, having laptop computers, night goggles, et cetera,
those are just basic. And then why not put on the other side
training, which may play into some of the deficiencies that you
may see in them.
So if you could comment, focused on this coordination. I
think this coordination is one of the key elements of whether
you have success or not, and then equipment certainly plays
into it, and we put funding over to the side. If you could just
comment on those two points more thoroughly, I would appreciate
it.
Mr. Ashbaugh. With respect to coordination, our concern was
and remains that ICE and CBP each have the capacity to disrupt
the operations of the other if they do not function carefully.
For example, CBP by virtue of its expedited removals, a class
of aliens which typically are detained can suddenly thrust into
ICE an unanticipated volume of new detainees that ICE has to
manage. ICE has its own apprehension initiatives which may fill
the bed space that CBP hoped to use. So systematically, there
is an extraordinary need for coordination.
With respect to your question about whether or not the
entities, ICE or CBP, have the equipment that they need to do
their job, we did not study that. We view that as largely
separate from the merger question, with one exception. The
exception was that we felt that the separation of ICE and CBP
put a very high premium on a careful informed set of decisions
with respect to budget formulation and budget execution, that
both of those needed to be accomplished with a very disciplined
assessment and setting of priorities between the two
organizations and what they were trying to accomplish.
Ms. Jackson-Lee. Do you think, Mr. Baker, that the whole
idea of coordination can be fixed? And do you have any
assessment on the need for equipment in some of the agencies
that we are speaking of, particularly CBP?
Mr. Baker. Yes, we do believe that it can be fixed, and
that it is being fixed right now. On the question of resources,
there is no doubt that, as Representative Lofgren said, there
is insufficient bed space for all the people that could be
detained and perhaps should be detained. So that is a scare
resource to us, and under most future scenarios it is going to
be a scarce resource for a long time.
We are trying to use that scarce resource in a strategic
way under the direction of the Secretary in a fashion, with a
program office that will oversee the relationship between ICE
and CBP in an effort to secure the border, that is the Secure
Border Initiative, with a program office. I note that the
legislation recently introduced by the chairman here would
require the establishment of that office, but it is in fact
being stood up now. That has resulted in a very strategic and
coordinated use of our scarce detention resources.
Ms. Jackson-Lee. Besides the detention, if you would, Mr.
Chairman, I will finish on this, and I thank you for your
indulgence.
I mentioned besides detention, actual active equipment that
even provides the opportunity to secure individuals that might
be illegally coming across the border such as power boats,
helicopters, laptop computers, night goggles, et cetera, which
is also resources that are lacking. Is that being studied or
assessed about whether or not you have various personnel fully
equipped with what they need to be fully equipped with? And in
the initiative, are you looking at some of the options of, if
you will, corralling or herding vacant beds in local
jurisdictions that might be utilized on a temporary basis?
Mr. Baker. We are looking at all of that, precisely because
technology can in some cases substitute for people. The kinds
of technology you use allows you to make tradeoffs, and we are
looking for the most effective and cost-effective solutions.
Ms. Jackson-Lee. Including the equipment?
Mr. Baker. Yes, absolutely.
Ms. Jackson-Lee. I would just say in conclusion, I think we
are long overdue in providing for not only ICE, but the Border
Patrol. We are long overdue in enforcing employer sanctions. We
are long overdue for having some sort of orderly process for
detainees, and certainly long overdue for some reasonable
response to whether we can deport everyone. We cannot and do
not expect to.
But I think the coordination issue is so key that, Mr.
Chairman, I do not know how many hearings we will have to have
to get to the bottom of it or to find out that we are making
some progress, but I really think that the lack of coordination
can be the death of all of us. If one hand does not know what
the other hand is doing, we can't find the bad guys.
I thank the chairman, and I thank the witnesses.
Mr. Rogers. I thank the gentlelady.
I also want to thank our witnesses who have been with us
for nearly two hours now. I appreciate your very thoughtful
comments. It has been helpful.
I appreciate the Members who have been here for questions.
I would advise the witnesses that the record will be left
open for 10 days. As you know, votes do not occur until this
evening, so several of our Members are not in town yet, but
they may have questions that they would like to submit to you.
I would ask that if they do, you submit a response in writing
for the record.
With that, without objection, we are adjourned.
[Whereupon, at 3:50 p.m., the subcommittee was adjourned.]
CBP AND ICE: DOES THE CURRENT
ORGANIZATIONAL STRUCTURE BEST SERVE U.S. HOMELAND SECURITY INTERESTS?
PART III
----------
Thursday, May 11, 2006
U.S. House of Representatives,
Committee on Homeland Security,
Subcommittee on Management,
Integration, and Oversight,
Washington, DC.
The subcommittee met, pursuant to call, at 2:35 p.m., in
Room 311, Cannon House Office Building, Hon. Mike Rogers
[chairman of the subcommittee] presiding.
Present: Representatives Rogers, Souder, McCaul, and Meek.
Mr. Rogers. I would like to call this meeting of the
Homeland Security Subcommittee on Management, Integration and
Oversight to order.
Today, we are holding our third and what I hope will be our
last hearing on the interaction between two critical agencies,
Customs and Border Protection, or CBP, and Immigration and
Customs Enforcement, or ICE.
I would first like to welcome our witnesses and thank them
for taking time out of their busy schedule to be with us today.
The main mission of CBP is border security, while the
mission of ICE is enforcement of our immigration laws. Since
these two agencies were created by the Department in March,
2003, numerous problems have been identified in how they
interact and carry out their missions.
Let's be clear about the context of today's hearing. Our
country is facing a crisis on the borders. The time for action
is now, and the Department needs to understand that time is
running out to fix these agencies.
In our first hearing in March, 2005, we heard how
bureaucratic walls resulted in less cooperation and less
information sharing. That same month, Secretary Chertoff
launched a top-to-bottom review of the Department. Based on
these results, Secretary Chertoff decided to keep the two
agencies separate, but he also took a number of steps to
improve their coordination and operation, some of which we will
discuss today.
Our second hearing in November focused on a report from the
Department's Inspector General in which he supported merging
the agencies. Following that hearing, Ranking Member Meek and I
joined with the chairman and ranking member of the full
committee in writing to the Secretary to track the Department's
progress. The response we received addressed some but not all
of our concerns.
We are holding this third hearing to hear what concrete
steps key officials have taken and plan to take to improve how
the two agencies work together. We will also hear from two
union representatives and a former senior Department official
about challenges facing CBP and ICE.
I yield to the ranking member, Mr. Meek, for any opening
statement he may have.
Mr. Meek. Thank you, Mr. Chairman.
It is good to be here having a hearing dealing with the
issue of ICE and also CBP. I am glad to have some of our
witnesses back and some new witnesses before us here today, and
I welcome you all to the committee.
I just want to start my comments by saying this issue has
been a great concern to me and one that is one of the great
concerns of Congress as it relates to the serious needs of this
country to address an ongoing debate over immigration
enforcement and border security.
As you recall, the Department of Homeland Security
Inspector General, in testifying before this subcommittee back
in November of 05, noted that ICE and CBP had serious
coordination problems and, because of that, because of the
separation of the two agencies, there were three outstanding
issues: detention and removal operations were hindered,
interdiction and investigation capabilities have been weakened,
and there was a lack of coordination of intelligence
activities.
During our subcommittee hearing 6 months ago, the
Department, represented by Mr. Stewart Baker, Office of Policy,
took somewhat of a defensive position on the Inspector
General's findings and recommendations for a merger of both of
these agencies. Mr. Baker went so far as to question the
validity of the IG study.
In 2004 and prior to, the Department of Homeland Security
OIG and the Heritage Foundation called for a merger of ICE and
Customs and Border Protection.
As you may also recall, I originally offered and
subsequently withdrew an amendment to merge both agencies back
in November of 2005 during a full committee markup of the
Border Security and Terrorism Prevention Act, H.R.C12. I did so
only after Chairman King asked that the Department be given 6
months to address the various challenges between the two
agencies.
I understand since the 6 months have passed, the Department
may have taken or plans to take steps to address the IG's
findings and 12 of the 14 IG's recommendations. Among those
steps, the Department has reportedly taken in response to the
IG's findings and the recommendations are the creation of a
Department-ide Office of Policy Office of Operations and
Coordination, an Office of Intelligence Analysis to enhance
coordination of policy and operations and intelligence across
the Department of Homeland Security, establish a direct line of
report from ICE and CBP to the Secretary, standing up the ICE
and CBP Coordination Council to encourage managers from each
agency to meet regularly, establish a local field working group
of field managers to address coordination issues.
Mr. Chairman, even with these steps, I am not fully
convinced that they are having the reach into the men and women
in the field who are doing the front-line work. There has been
no evidence provided to the subcommittee that field staff has
been engaged and that these challenges have been clearly
communicated to those in the field.
Staff in the subcommittee continues to hear from front-line
agents and other law enforcement officials that ICE and also
CBP are not working effectively together in the field. This is
bothersome, given that the Department of Homeland Security IG
also noted in its November, 2005, report that there was an
apparent disconnect between headquarters in the perception of
what was happening and what the IG observed in the field.
I can go on, Mr. Chairman, but what I want to do before I
run out of time, I just want to allow us as much time to take
advantage of this first panel. We know that we have a second
panel that will be coming up, and many of us, those and members
present here who have been working very hard on this issue--
because, as you know, Mr. Chairman, it is dealing with our
national security and it is dealing with our men and women in
the field.
I definitely would ask unanimous consent to have the rest
of my comments placed into the record; and I look forward to,
hopefully, a fruitful discourse here today, sir.
Mr. Rogers. I thank the gentleman. Without objection his
full statement is going to be submitted in the record.
Mr. Rogers. The Chair now asks unanimous consent for the
gentleman from Indiana, Mr. Souder, to be recognized for
purposes of opening statement. Without objection, Mr. Souder is
recognized.
Mr. Souder. I ask my full statement be placed into the
record.
Prepared Statement of the Hon. Mark Souder
May 11, 2006
I would like to thank full committee Chairman Peter King,
Subcommittee Chairman Mike Rogers and ranking member Kendrick Meek for
calling a third hearing on this significant issue and assembling a
distinguished panel of witnesses to discuss the efficient functioning
of the Department of Homeland Security (DHS) and our national security.
In the aftermath of 9/11 the nation sought explanations and
assurance. Our way of life had been assaulted and our security
challenged. Working in conjunction with the Administration, Congress
looked for the means by which to meet terrorism and defeat it.
Essential to that effort was a strong national defense consisting of
those agencies we already relied on to guard our borders, but one with
a new focus. This new focus was reflected in the creation in March 2003
of DHS. The agency brought together twenty-two federal agencies and
more than 170,000 employees in what was the most significant
reorganization of the federal government in more than fifty years.
Reorganization on that magnitude required patience while DHS
underwent the inevitable growing pains that came with forging a common
agency culture from often disparate organizations. While the agency has
been molding its identity and formulating policy it has been beset with
management and operational challenges. Some it has weathered, others it
has not. We are here today to examine one of those challenges, the
increasing divide separating the efficient and integrated functioning
of Customs and Border Protection (CBP) and Immigration and Customs
Enforcement (ICE) with each other and the impact the disjunct has on
their respective missions.
As chairman of the House Government Reform Subcommittee on Criminal
Justice, Drug Policy and Human Resources, I have been very aware of the
divides between CBP and ICE. The issues are memorialized in the
Government Reform Committee's report ``2006 Congressional Drug Control
Budget and Policy Assessment: A Review of the 2007 National Drug
Control Budget and 2006 National Drug Control Strategy.'' The problems,
as they relate to drug interdiction, include CBP Air's employment of
its assets, the disconnect between Border Patrol agents and ICE
investigators and the lack of priority given to drug investigation and
interdiction by agency management.
It is redundant to say that interdicting illicit drugs before they
cross our nation's border's is the most effective means of removing
narcotics from our streets. Yet that seemingly simple truth does not
appear to have sufficiently filtered down through the Department of
Homeland Security to the CBP Air component. The drug transit zone
encompasses six million square miles of the eastern Pacific Ocean, the
Caribbean Sea and the nations of Central America. Nearly all of the
cocaine entering the United States passes through this zone. An
interdiction strategy employing our various air and sea assets has
proven effective as reflected in record seizures in 2005 and CBP's P-3
aircraft played a critical role in the detection and monitoring of drug
smuggling vessels. The significance of this role was ably put by
General Michael Kostelnik, CBP's Assistant Commissioner for the Office
of Air and Marine, when he stated in a hearing before my Subcommittee
on April 26, 2006 that over fifty percent of JIATF South's maritime
aircraft patrol hours were flown by these aircraft.
Given the vital role of the P-3 it is disturbing that CBP is
attempting to transfer control of air and marine operations to the
Border Patrol sector chief level. Admittedly border security is a
critical element, but it is a mistake to remove the P-3's from their
current role and it is unwise for such a vital national asset to be
regionalized. That model did not serve the old Immigration and
Naturalization Service well and it will not serve either DHS or this
nation well. I asked then CBP Commissioner Bonner in November 2005, why
is agency was taking a regionalized approach when all other federal
government agencies utilized a centralized approach. DHS needs to
clearly define CBP Air's interdiction mission in the transit zone and
these aircraft need to remain a national asset, accountable to both the
Secretary and the Congress.
Given the vital role of the P-3 it is disturbing that CBP is
attempting to transfer control of air and marine operations to the
Border Patrol sector chief level. Admittedly border security is a
critical element, but it is a mistake to remove the P-3's from their
current role and it is unwise for such a vital national asset to be
regionalized. That model did not serve the old Immigration and
Naturalization Service well and it will not serve either DHS or this
nation well. I asked then CBP Commissioner Robert Bonner in November
200, why his agency was taking a regionalized approach when all other
federal government agencies utilized a centralized approach. DHS needs
to clearly define CBP Air's interdiction mission in the transit zone
and these aircraft need to remain a national asset, accountable to both
the Secretary and the Congress.
While addressing the mission critical role of the P-3 aircraft I
must express my concern at the current condition in which that fleet of
aircraft now stands. As we meet here today, of the sixteen P-3as in the
CBP air fleet, only a few are currently airworthy. Due to the lack of a
sound recapitalization or progressive modernization program, these
aircraft are grounded because of cracks in their airframes. It is
appalling that such a significant component of the interdiction triad
of air, sea and land assets sits useless.
It is very important that the officers and agents of CBP and Border
Patrol have a clear relationship with the investigators of ICE. The
role of ICE appears to vary in different regions of the country in part
due to the policies carried over from legacy Customs and Border Patrol
agencies. In some areas along the border drug seizures are turned over
to either ICE or the Drug Enforcement Administration (DEA), depending
on where the seizure occurred and in other areas, the receiving agency
is determined in which week of the month the seizure occurred. Regional
arrangements need to be overcome in favor of a uniform and consistent
policy. A uniform strategy on the border is imperative whether for
drugs or aliens.
Although ICE continues to enforce U.S. drug laws, primarily with a
nexus to the border, investigative resources are lacking due to the
expanded responsibilities of immigration enforcement. ICE has continued
to increase its apprehensions of criminal aliens over the past several
years. While this focus is appropriate to its mission, the interlocking
relationship of drugs and alien smuggling cannot be ignored and
resources must be allocated commensurately.
The issue of how to resolve the disjunct between ICE and CBP has
been the subject of several analyses. One of the most prominent was
prepared by the Office of the Inspector General (OIG) for the DHS in
November 2005. The report concluded that the organizational structure
contributed to what it characterized as ``challenges'', in three areas:
coordination between apprehension and detention and removal efforts,
and coordination of intelligence activities, coordination between
interdiction and investigative efforts. The report said ``The
programmatic issues. . .[in the report]. . are evidence that
integration is not proceeding as well as required. We encountered
concerns that institutional rivalries, duplication of functions and
insularity of views were tending in a negative direction.'' One of the
suggestions the OIG report makes is to merge ICE and CBP. The report
says about this option ``The resulting consolidated border security
agency with a single chair-of--command would be better positioned to
coordinate mission, priorities and resources to guarantee a
comprehensive border security system.''
The Heritage Foundation also completed a study in December 2004,
``DHS 2.0: Rethinking the Department of Homeland Security'' in which
the authors wrote ``. . .the split of responsibilities between the CBP
and ICE was done without a compelling reason--other than vague (and
ultimately incorrect) descriptive notion that the Customs and Border
Protection would handle ``border enforcement'' and ICE would handle
``interior enforcement.'' In another report by Heritage on May 25,
2005, the authors said ``Separating responsibilities makes no sense.
Every ICE investigation begins with a person or persons crossing or
attempting to cross U.S. borders. Thus every ICE operation requires
working with CBP. In fact, in researching the creation of the
department, we couldn't find one compelling argument for creating
separate agencies.''
Former CBP Commissioner Bonner was quoted in the Washington Times
on December 7, 2005, as saying ``There is a simple principle--
Bureaucracy 101-- that applies here; if you want people to work
together, you don't split them into two separate agencies. . .'', he
continued, ``CBP's mission is to interdict drugs and potential
terrorist, but most of our interdictions are based on CBP's own
targeting and not what CBP gets from ICE. This breakdown in the
intelligence and the feedback loop could be fixed simply by merging CBP
and ICE--to create one border agency, but one with the investigative
and intelligence capacity to do the job.''
The issues with border security are manifold and this nation
deserves a competent, coherent approach. In view of the concerns I've
mentioned and those raised by the reports from DHS and the Heritage
Foundation, there appears no way the current framework under which CBP
AND ICE operate can work. However, the fundamental issue we address
today is one of national security, not organization. I therefore look
forward to hearing from our panel members on this issue.
Mr. Rogers. Without objection.
Mr. Souder. I want to make sure that each of the witnesses
understand that my comments are not about the individuals. We
have gone through multiple individuals in these positions. My
concern is about the structure. No matter how well you do your
job, I believe you have a structural problem, and my statement
deals much with the narcotics, which is the committee I chair.
But in working through this, your mission is multi-tasked
and very, very difficult to do. We want you to catch every
potential terrorist and everybody on the watchlist, make sure
that illegal immigrants don't get across, make sure that no
contraband gets across, whether narcotics or agriculture or
biochemical or nuclear or any of that type of thing, and you
are multi-tasked.
What became immediately apparent to me in the structure--
and I have absolutely no answer to this question; and Steve
King, our colleague from Iowa, was on the Arizona border last
week and has come back absolutely furious. You can't deal with
the Shadow Wolves. It illustrates the problem. The Shadow
Wolves are gradually leaving. The reason they are leaving is
because you had a unit from the Tohono O'Odham Reservation of
experienced trackers who did both border and investigations,
and they didn't picket fence, and they didn't do just
investigations, and your structure doesn't accommodate that.
What do we do with people who go both directions? We don't
have a way to deal with them. Because your structure is so
inefficient, you took Native Americans, one of the hardest
groups to penetrate--this would be like if we had a group of
Iraqis who had been intelligence people in Iraq or Iran and
said, oh, no, we are going to spread them all over the world.
We don't care that that is their expertise.
We took the people in the Shadow Wolves and put them in the
picket fence or made them investigators but took them away from
where their skill was when we should be doing this at one of
the biggest holes we have in the northern border. We should be
looking at the southwest border as a model, but we busted it
because it didn't fit the uniform structure of how to do this.
Then we have the Air and Marine Division. How do they fit?
Some of their planes are down in Colombia. Some are doing
investigations internally. They have got boats. They have got
air. So in the Caribbean they are working under kind of legacy
Customs-type things and doing what the Air and Marine Division
did, and they moved into the typical CBP-type thing because
they don't have a land border. But in the land border we are
taking P3s used for intelligence and parking them like Border
Patrol helicopters that go along.
Look, I want the border controlled, too, and the Members of
Congress and voters are demanding we control the border, but
you are multi-tasked with multiple missions, and you don't have
the flexibility in the current structure.
General Kostelnik is trying to deal with it in the
Caribbean. You don't have a solution for the land border
because it doesn't fit the model. If you don't merge the
divisions--this would be like having a baseball team with a
manager for the pitchers and a manager for the hitters and then
your proposal is to hire coaches to run between the two
managers and add more layers when, in fact, it is within the
same team. You should have had a structure that is here with
divisions and then you wouldn't need to get to how do we
coordinate the intelligence. We are going to add a whole new
layer of bureaucracy so that you two can talk to each other
when you should be under the same thing down in a logical,
managerial structure. It is not the individuals here; it is the
structure.
Maybe it can be accommodated, but until you can figure out
how to do this--I was just in Charleston, looked at Operation
Seahawk. They are standing up. You have the ability there to
track every boat in every air. So we are funding millions of
dollars in different ports saying why don't we invent this
system to track every airplane and every boat. You have got it.
The divisions are so separated from each other in our
government they have to put in new people to figure out how to
talk to the other people so they know what the divisions are
doing. It is incredibly exasperating. They, in fact, want to
stand up an intelligence agency, because in El Paso they have
seven different intelligence agencies and now they have a task
force, so I think they spend half their day trying to talk to
each other inside the same agency.
That is our frustration. It is not with the individuals,
but I believe there are conceptual problems that need to be
addressed. If you can show me another way, before all the
Shadow Wolves quit, to figure out how to do the Shadow Wolves,
Air and Marine, before you lose your people on the southwest
border who know how to fly the P3s and are trained to fly them,
then I am willing to listen to it. But, right now, the new
solution just seems to me like more agency people to talk to
the people who they should have been in the same division on
the same team in the first place.
Yield back.
Mr. Rogers. Thank you, Mr. Souder.
Mr. Rogers. I thank the witnesses. We have got two panels
of distinguished guests today. We are going to be called for a
series of votes around 3:15, so it is our goal to try to get
through these opening statements and hopefully have some
questions. Ideally, that vote will be called a little bit later
so we can get through with the questions for the first panel
and then break between the first and second panel. For that
reason, I would ask that you keep your opening statements as
limited as you can so we can have more room for questions and
know that your full statement will be accepted for the record.
Mr. Rogers. With that, the Chair calls the first panel and
recognizes the Honorable Stewart A. Baker, Assistant Secretary
for Policy for Homeland Security.
You are recognized for any statements you may have, Mr.
Baker. Welcome back.
STATEMENT OF THE HONORABLE STEWART A. BAKER
Mr. Baker. Thank you, Chairman Rogers, Ranking Member Meek,
distinguished members of the committee. I appreciate the
opportunity to address you today, and I want to thank you for
your support for the Department.
I also want to thank you--when I came up here the first
time to testify, it was my first opportunity to testify before
the committee--before a congressional committee in years. I
thought it was a pretty rough debut, but my second outing was
defending the Dubai Ports World deal and our CIFIUS approval,
so I now remember this subcommittee with great fondness. It is
a pleasure to be back.
Any reorganization is going to have challenges, and it is
certainly true that the creation of ICE and CBP was not an
exception to that rule. But I think that, despite the initial
challenges, ICE and CBP have taken a number of positive steps
to effective coordination in their first 3 years of existence
under DHS. We have documented this in greater detail in past
testimony and in my prepared remarks, which I ask be accepted
in full, but I think that I can recount them very briefly.
The Secretary s Second Stage Review, the Secure Border
Initiative, the ICE-CBP Coordination Council, and many other
coordination mechanisms have been developed that I think will
create the kind of unified effort that we all want to see from
ICE and CBP.
Secretary Chertoff's Second Stage Review led him to
conclude that, while he thought pretty carefully about merging
ICE and CBP, that it was not necessary to do that but instead
was appropriate to create what I think Congressman Souder would
describe as a manager. The manager of our team is the
Secretary, and he created what you might think of as the
pitching coach and the batting coach and the policy office and
the operations office and the intelligence office to provide
specific guidance to both ICE and CBP and then to let ICE and
CBP do their jobs, report to him and take responsibility for
making sure that they did coordinate their operations.
We have been operating under the Second Stage Review
effectively for several months now; and, by and large, we are
seeing very substantial improvements in coordination. One of
them is the Secure Border Initiative, in which the Secretary
looked carefully at some of the border issues that he faced and
recognized that there are a lot of interdependencies among the
agencies and among the kinds of control activities that you can
undertake and that the only solution is to approach those
problems as a whole with a coordinated response.
The SPI office that I have responsibility for has led
integrated and coordinated approaches to procurements for the
border, for catch and release coordination, approaches to
solving the catch and release problem. Again, I think we have
seen real results as a result of our efforts in that regard.
ICE and CBP also created the ICBP Coordination Council
under the Secretary's direction, which allows the heads of
those agencies to meet on a very regular basis to iron out
problems as they arise rather than letting them fester.
One of the kinds of examples of the field operations where
field agents are actually getting an opportunity to coordinate
their activities is the Border Enforcement Security Task Force,
or BEST Force. We have stood up one in Texas and are now
standing up another in Arizona, which requires the coordination
of ICE and CBP as well as the participation of intelligence
elements aimed at addressing cross-border crime and human
smuggling.
Finally, just in closing, keeping in mind the chairman's
request that we keep our testimony short, I want to say that
staying the course of results-oriented coordination is a better
solution to securing the border and enforcing immigration law,
providing the kind of coordination we need, than a new and very
far-ranging reorganization that would force these agencies back
into yet another period of uncertainty about how they are
organized, who their boss is, and how they are going to be
judged in carrying out a job that I think we all agree is
absolutely essential at this point in our Nation's history.
Thank you, Mr. Chairman.
Mr. Rogers. Thank you, Mr. Baker.
[The statement of Mr. Baker follows:]
Prepared Statement of Stewart Baker
Thursday, May 11, 2006
INTRODUCTION
Mr. Chairman and members of the Committee: thank you for the
opportunity to address you today, and for your ongoing support of the
Department of Homeland Security's efforts to keep America secure. I am
honored and pleased to appear before the House Committee on Homeland
Security, Subcommittee on Management, Integration, and Oversight to
speak on behalf of the Department regarding our efforts to coordinate
the missions of U.S. Immigration and Customs Enforcement (ICE) and U.S.
Customs and Border Protection (CBP) during my tenure as the Assistant
Secretary for Policy at the Department of Homeland Security. I am
pleased to have this opportunity to discuss the current state of
coordination and cooperation between two of the Department's most vital
agencies: ICE and CBP each play a leading role in several of the
Department's crucial missions, including border security, interior
enforcement and immigration reform. I appreciate this Subcommittee's
work with the Department in this area. It is critical to the Department
that we work hand-in-hand with you to ensure that we are effectively
managing our border and interior enforcement efforts.
Despite initial challenges, ICE and CBP have taken many positive
steps toward effective integration and coordination in the initial
three years of their existence under the DHS organization. Both
agencies have complex legacy authorities and diverse cultures. As part
of the initial transition planning, policies and procedures were
developed to provide a fully integrated, comprehensive immigration and
customs cooperative process for the legacy Customs and former
Immigration and Naturalization Service (INS) field managers. Both ICE
and CBP developed organizational templates, which met the new DHS
mission requirements. Subsequently, each organization highlighted
problems for resolution and has worked towards enhancing coordination
to address identified problems. Through interdisciplinary groups within
the Department, we continue to work on coordination issues.
Coordination has improved simply by virtue of the fact that a number of
offices that were previously housed in several different Departments
are now under one umbrella allowing conflict resolution and critical
resource allocations to occur under a single Cabinet official. But, as
we have documented in greater detail in previous testimony and our
response to the Inspector General's November 2005 report concerning the
possible merger of ICE and CBP, significant steps have been taken to
enhance coordination at all levels. The Inspector General report
focused on: (1) Apprehension and Detention and Removal Operations; (2)
Investigative Operations; and (3) Intelligence Activities. Through an
ongoing evolution of coordination, these and other vital areas of ICE,
CBP, and DHS operations continue to be integrated for optimal
performance of the Department's mandate to keep America secure.
This coordination occurs under several initiatives which include
the Secretary's Second Stage Review reorganization, the Secure Border
Initiative (SBI), the ICE-CBP Coordination Council, and many others in
the field of operations.
SECOND STAGE REVIEW
Considerable work has been done since 9/11 to enhance border
security. We have significantly increased the number of agents and
officers securing our borders and ports of entry, strengthened and
consolidated inspections, expanded the terrorist watch list, created
new screening and credentialing tools, and increased our enforcement
capabilities. But much remains to be done. Illegal immigration
undermines our national security. And illegal immigration imposes
particular public safety and economic strains on our communities.
Secretary Chertoff studied these critical issues carefully in his
Second Stage Review of the Department. He looked, in particular, at
proposals to enhance coordination between ICE and CBP. After careful
study, he decided that the best course was not to merge the two
agencies, as some had suggested, but to propose a new management
structure intended to reduce bureaucracy, improve accountability, and
enhance coordination. In addition to making ICE and CBP direct reports
to the Secretary and eliminating the Border and Transportation Security
Directorate (BTS), the Secretary stood up a Department-wide Policy
Office, an Operations Coordination Office, and an Intelligence Office
to ensure that the Department and its components are mission-focused
and effectively leveraging tools from across the DHS spectrum. These
offices have been charged with utilizing the tools of all of DHS's
components to address the Department's critical homeland security
mission. Indeed, these new offices interact on a daily basis with their
counterparts in CBP and ICE, among other DHS component agencies. Among
other things, it was the Secretary's belief that a merger would
diminish, rather than enhance, the roles of the Assistant Secretary of
ICE and the Commissioner of CBP by, in effect, relegating them to the
Deputy Assistant Secretary level.It would thus merely recreate a
bureaucratic reporting mechanism like BTS that has already been harshly
criticized. Also, the disruption created by a merger of this magnitude
would distract the focus of these two agencies.
Integration is coordinated at the Department level in conjunction
with ICE and CBP by the Directorate of Policy, the Office of
Intelligence and Analysis, and the Office of Operations Coordination
including:
<bullet> Integration and alignment of priorities. Both the
Department-wide Policy Office and Director of Operations
Coordination play a major role in integrating policy and
operations of all the DHS operational agencies, including CBP
and ICE. In coordination with CBP and ICE, they also align
Departmental priorities.
<bullet> Performance tracking and interagency reviews. The
Office of Policy will monitor the implementation of these
priorities through performance tracking and periodic
interagency reviews, including assessments of related resource
deployments.
<bullet> Intelligence Fusion and Department-wide Intelligence
Products. The Office of Intelligence and Analysis takes the
lead to ensure that we are operating under a common picture
across the Department. In addition to the joint efforts that
are already underway between these two agencies with respect to
intelligence and information-sharing, the Department's new
Chief of Intelligence fuses information from all DHS
components, including ICE and CBP. This organizational change
within the Department increases information sharing between
components, and also develops intelligence products that
incorporate all-source information from across DHS. A working
group within the Department recently established protocols and
mechanisms to provide analysts from the Office of Intelligence
and Analysis with much-improved access to key ICE and CBP
databases, providing the Office of Intelligence and Analysis
with a far better capacity to conduct patterns and trends
analysis in this area. Plans are also underway to improve our
Reports Officers program and the Department is making
significant improvements in the number and quality of
Intelligence Information Reports that it produces.
A specific example of the CBP and ICE cooperative interaction is
reflected at CBP's National Targeting Center (NTC). ICE has an on-site
liaison officer assigned to the NTC to ensure effective communication
and information exchanges between CBP and ICE. For example, all
``special interest alien'' intercepts by CBP Officers or Border Patrol
Agents are reported to the NTC and notification is made to the ICE
liaison officer to conduct further investigations or inquiries, or to
forward the information for further review to the appropriate ICE
headquarters personnel.
<bullet> Performance Metrics. The Department is developing
performance metrics for internal CBP and ICE operations, and
metrics for gauging the extent of interaction and coordination
between CBP and ICE.
<bullet> Budget Coordination. Starting with the 2007
President's Budget, the Department CFO has established a more
formal process to ensure greater visibility and coordination
between CBP and ICE for budget formulation and strategic
planning processes. This ensures a more consistent and proper
balance of border/apprehension assets in CBP with interior
enforcement/removal assets in ICE. In addition, the Chief
Financial Officer (CFO) tracks budget execution to guarantee
compliance with agreed-to budget and plans.
SECURE BORDER INITIATIVE
The Secretary also concluded that a top priority must be to think
innovatively and undertake a new way of doing business in the border
security realm. Thus, the first major initiative that he launched
following his Second Stage Review, in addition to the new management
structure, was the stand-up of the Secure Border Initiative or SBI. The
Secretary put together a team of experts, from CBP, ICE, U.S.
Citizenship and Immigration Services (CIS), U.S. Coast Guard, our
Intelligence Office, Management Directorate, Office of International
Affairs, and others, to focus on all aspects of immigration
enforcement--deterrence, detection, apprehension, detention, removal
and investigation of criminal organizations violating the border. This
initiative is intended to provide a mechanism to meet the challenges in
each of these areas with an integrated mix of increased staffing,
robust interior enforcement, greater investment in detection technology
and infrastructure, and enhanced coordination on the federal, state,
local, and international levels.
Indeed, the SBI Program Executive Office (PEO) brings together ICE,
CBP, Budget, and Management regularly to align resources. PEO will
establish the proper foundation that will enable DHS components to
create and maintain a functional and seamless network of capabilities
that control the border and disrupt and dismantle the continuum of
border crime into the interior of the United States. The PEO is
partially staffed with ICE, CBP, and CIS detailees working hand-in-hand
to review immigration enforcement resource proposals in advance of, or
concurrent with, DHS CFO review. The office is also developing
integrated planning models and program plans upon which major border
and immigration reform resource decisions are based. It is of
particular importance to note that the Secretary sits down with the
leadership of these components each and every week to monitor
improvements closely, launch new initiatives, ensure that we are
measuring results, and readjust and realign resources accordingly.
The overall vision for SBI includes:
<bullet> More agents to patrol our borders, secure our ports of
entry and enforce immigration laws;
<bullet> Expanded detention and removal capabilities to
eliminate ``catch and release'' once and for all along the
border;
<bullet> A comprehensive and systemic upgrading of the
technology used in controlling the border, including increased
manned aerial assets, expanded use of UAVs, and next-generation
detection technology;
<bullet> Increased investment in infrastructure improvements at
the border--providing additional physical security to sharply
reduce illegal border crossings; and
<bullet> Increased interior enforcement of our immigration
laws--including more robust worksite enforcement and increased
compliance with visa requirements.
To date, SBI has had significant success in ending ``catch and
release'' of aliens apprehended between ports of entry along the SW
border for all Central American countries except one country (which has
some unique issues). This success is a direct result of close
cooperation between ICE and CBP to increase the efficiency of the
apprehension and removal system as a whole including gaining
efficiencies in obtaining travel documents, expanding the use of
expedited removal and carefully monitoring the use of detention
resources.
From the inception of SBI, ICE and CBP have been and continue to be
major contributors to the initiative. In fact, ICE and CBP conduct the
majority of the SBI ground work and are the key players chartered with
ensuring SBI's success. As SBI develops, ICE and CBP will continue to
coordinate around this shared mission and vision of a more secure
border.
ICE-CBP COORDINATION COUNCIL
To complement and solidify the effectiveness of the Second Stage
Review Organization and the SBI initiative, CBP and ICE, under the
Secretary's direction, created the ICE-CBP Coordination Council. The
Council meets regularly to proactively consider and address issues to
better coordinate and resolve operational and policy matters and to
monitor implementation of Memoranda of Understanding (MOUs), among
other things. The Council reports to the Secretary on outstanding
issues, resolutions, and disagreements that require further direction
or de-confliction. The Council also interacts closely with the
Assistant Secretary for Policy, the Director of Operations Coordination
and the Chief Intelligence Officer.
The Council is co-chaired by the leaders of each agency, and
membership includes the heads of the main operational divisions and
main policy and planning arms of both ICE and CBP. The Council's
ongoing mission is to identify and address areas where greater
cooperation can enhance mutual achievement of our missions and be
proactive in fostering improved coordination efforts. It addresses a
revolving agenda of ICE-CBP touch points, developing, as appropriate
and necessary, interagency policies, prioritizations, and procedures to
better guide ICE and CBP interactions and communicate roles and
responsibilities in those matters.
The ICE-CBP Coordination Council has, and will continue to address,
at a national level, appropriate touch points that are raised
internally, or from the field level. An example of the Council's
procedural review process is its evaluation of existing ICE-CBP MOUs on
referrals. During a Council meeting in February, for example, ICE and
CBP agreed to issue a joint memorandum to clarify and reinforce key
components of the existing policies by which CBP refers cases to ICE
for investigation and to ensure that enforcement results are routinely
and effectively shared between the two agencies. The signatories of
this memorandum will be Acting Commissioner Spero and Assistant
Secretary Myers, prior to its distribution to the field.
RESULTS_ORIENTED COORDINATION
A prime example of the kind of integration and cooperation which
the Department envisions as the future of ICEcCBP operation is the
established Border Enforcement Security Task Forces or BESTs along the
Southwest border. These DHS-led task forces are comprised of ICE, CBP,
the DHS Office of Intelligence and Analysis, and other Federal, State,
and local entities. The goal of the BESTs is to improve border security
through the creation of an environment that fosters cooperation and
collaboration. A BEST in Laredo, Texas has been operational for several
months now and is a model for widespread cooperation and efficacy. It
has already improved DHS's effectiveness against criminal activity. In
March a second BEST began in Tucson, Arizona. Planning is underway for
future task forces.
The BESTs are charged with sharing information, developing priority
targets, and executing coordinated law enforcement operations designed
to enhance border security and interior enforcement efforts. BESTs
ensure that resources are appropriately focused and expended to
identify and prioritize emerging or existing threats in order to
disrupt and dismantle cross-border criminal organizations to mitigate
border security vulnerabilities. BESTs focus on DHS strategic border
security priorities, including
<bullet> Identification and Apprehension of Threats to National
Security
<bullet> Cross-Border Violence
<bullet> Cross-Border Human Smuggling and Trafficking
<bullet> Cross-Border Contraband Smuggling
<bullet> Cross-Border Money Laundering and Bulk Cash Smuggling
<bullet> Transnational Criminal Gangs
<bullet> Cross-Border Weapons Smuggling or Trafficking
<bullet> Travel Document-related Identity Theft and Benefit
Fraud
<bullet> Cross-Border Drug Smuggling
Such initiatives and other ongoing enhancements will ensure that we
are carefully monitoring, measuring, and implementing mechanisms to
enhance coordination. At the same time, ICE and CBP have been working
steadily to build a better relationship at all levels. Both ICE and CBP
have increased productivity in virtually every facet of their law
enforcement activities, in many cases breaking annual enforcement
records. Recent MOUs between ICE/Office of Investigations (OI) and
CBP's Office of Border Patrol (BP) and Office of Field Operations (OFO)
demonstrate that the necessary policy and operational coordination is
occurring and continues to evolve.
While the core missions of CBP and ICE differ, CBP is primarily
focused on interdiction and ICE on investigation of cross-border crime
and the continuum of that crime into the interior, they are
complementary. Together ICE and CBP have generated many cooperative
successes in the last two years, such as Operation ICE Storm, Operation
Texas Hold `Em, the ABC Initiative, the LAX Initiative, and the
Expedited Removal Working Group.
DHS supports and participates in the Human Smuggling and
Trafficking Center (HSTC) an interagency intelligence/law enforcement/
diplomacy fusion center and information clearinghouse created to combat
human smuggling, human trafficking and criminal support of terrorist
travel. An ICE supervisory special agent is the HSTC's director and it
disseminates a large volume of information to CBP.
In addition to these achievements in inter-agency coordination,
both agencies have accomplished intra-agency coordination and
integration. For example CBP has made great strides in its own merger
at integrating its inspectional workforce, aspiring to One Face at the
Border. More then 37 cross training modules have been built and
implemented in the field. These modules not only cross train the
existing personnel who were on-board at the time of the merger, but are
also the key components in the 2-year on-the-job-training for all new
CBP Officers. To date, students filling more than 112,660 training
slots have passed through these courses. In the past year alone, more
then 7,300 CBP Officers and Agriculture Specialists have taken the
Anti-Terrorism courses and more then 13,150 employees have taken the
fraudulent document detection courses.
ICE, overcoming enormous challenges to fulfill its mission, has
accomplished much in the last two years. As the second largest federal
contributor of agents to the FBI's Joint Terrorism Task Force, ICE has
increased the number of ICE cases by 500 percent. In Worksite
Enforcement, ICE targeted critical infrastructure worksites, including
airports in Operation Tarmac that resulted in the arrest of more than
1,190 unauthorized alien workers with 782 criminal indictments, and
nuclear power plants in Operation Glow Worm which resulted in the audit
of 63,835 employee records. Fighting identity and benefits fraud, in
fiscal year 2005, ICE initiated 3,894 investigations, leading to 914
criminal indictments. Investigating arms and strategic technology
violations, ICE has initiated 5,670 investigations into illegal exports
and has netted 431 arrests, 305 indictments and 282 convictions since
the formation of the agency.
Additionally, in FY 2005, CBP cleared 86 million arriving air
passengers from abroad. This is the largest number of air passengers
traveling to the United States in history, and also marks the first
year that the number of air passengers surpassed pre-9/11 levels. In FY
2005 CBP officers at ports of entry arrested more than 7,600 persons on
outstanding state or federal warrants, more than a 40 percent increase
over FY 2003. Over the last two years, CBP did its part to combat
identity and document fraud through the successful implementation of
the Machine Readable Passport and Digital Photograph requirements for
travelers from Visa Waiver countries. In addition, CBP intercepted more
than 75,000 fraudulent documents in both FY 2004 and FY 2005 and last
year denied entry to almost 500 persons who presented a terrorism or
national security threat, more than a 20 percent increase over FY 2004.
between our ports of entry, the CBP Border Patrol again apprehended
more than 1.1 million individuals attempting to illegally enter the
United States, and the CBP P-3s based in Jacksonville, Florida and
Corpus Christi, Texas contributed to the seizure of over 210,779 pounds
(105 tons) of illegal drugs--over 38,600 more pounds (19 tons) than
last year. Sec.
CONCLUSION
I speak for the Secretary when I say that the level of focus at the
Department--which we are undertaking--involves innovative and
integrated thinking to create a truly integrated Department,
particularly concerning ICE and CBP. Staying with this course of
results-oriented coordination is a far better solution to securing the
border and enforcing immigration law than imposing a massive
reorganization through a merger of CBP and ICE. Indeed, the Inspector
General's latest testimony [March 28, 2006] on this subject concludes,
``since our report, DHS has created the Secure Border Initiative,
(SBI), the ICE-CBP Coordination Council, and Office of Intelligence and
Analysis. These efforts are intended to address coordination issues and
help integrate CBP and ICE operations. From what we know of these
emerging efforts, we believe that the Department is taking the
necessary steps toward addressing the coordination problems and, thus,
our recommendations.''
Our gravest concern is that a merger would have precisely the
opposite effect. The time and attention that it would take to
restructure these two organizations under one figurative head would
divert critical resources away from the critical DHS missions which
demand our Department's focus. Indeed, a merger would yield a
protracted period (at a minimum six months to a year) of disruption,
mission confusion, and organizational churn, thus undermining the
operational effectiveness of CBP, ICE, and, frankly, the Department at
large.
The Department is grateful to this committee for its attention and
support during the first years of our formation. We look forward to
working hand-in-hand with this committee as we develop new
technologies, enhance methodologies, and, critically, measure whether
our efforts are achieving real results. Conscious of our obligations to
protect the Nation through effective border control, we have studied
our enforcement challenges intensely. Through the Second Stage Review,
SBI, the ICE-CBP Coordination Council and other initiatives I have
discussed with you today, I believe the Department has provided a
roadmap for change and improvement in its performance, accountability,
coordination, and management of personnel and duties.
The Department is fully committed to meeting the many challenges
that any recently created organization faces and we believe we have
made significant inroads in confronting the change needed to be more
effective for the American people. Thank you once again for the
opportunity to discuss these issues with you, and I look forward to
answering your questions.
Mr. Rogers. The Chair now recognizes the Honorable Julie
Myers, Assistant Secretary for U.S. Immigration and Customs
Enforcement for Homeland Security.
Thank you being here, and I look forward to your statement.
STATEMENT OF THE HON. JULIE L. MYERS
Ms. Myers. Thank you for having me, Chairman Rogers,
Ranking Member Meek and distinguished members of the
subcommittee. It is my privilege to be here with you today to
talk about ICE and CBP and their coordination.
As you know, the Homeland Security Act of 2002 prompted the
largest reorganization of the Federal Government in more than
50 years; and after a degree of turbulence in its early years,
I am pleased to report that ICE has now achieved a measured
improvement in organizational and funding stability and a
growing record of operational success.
In fact, since joining the agency in January, I have had
the opportunity to visit with many, many of our employees in
field offices all across the country. I have listened to these
individuals, I have shared in their success, and I have heard
their frustration; and already we have taken significant steps
to address their concerns and to ensure that field
relationships continue to improve.
It was clear to me from my visit to the field that, despite
the challenges we have faced, that the men and women of ICE are
having tremendous success in fulfilling their mission; and to
me this demonstrates why a merger of our agencies is not
necessary. In lieu of a merger, I believe that the Nation is
best served by permitting ICE and CBP to remain focused on
their respective interdiction and investigative missions, while
increasing cooperation where it is most beneficial and also
ensuring cooperation throughout the entire Department of
Homeland Security with our many other partners who play
important roles here. We are in the best position to recognize
those areas in which ICE and CBP must work closely together and
those areas where ICE and CBP have separate missions.
I would like to elaborate a little further on what
Assistant Secretary Baker noted as a few examples of excellent
cooperation between ICE and CBP. One of one of them certainly
is the new Border Enforcement and Security Task Forces.
As Assistant Secretary Baker noted, we have one down in
Laredo that has had tremendous success, but something I want to
point out is that that was a field initiative. It actually
started at the field level and bubbled up to headquarters where
field folks saw ways that they could work together in an
intelligence task force they called Operation Blackjack
initially.
We have seen that success, and we are trying to model that
in Arizona and other parts throughout the southwest border. In
fact, just yesterday, this team was recognized by the Secretary
for its tremendous work and cooperation.
Another example would be the ICE forensic document lab. It
directly supports both ICE and CBP operations. CBP regularly
refers suspect documents for lab analysis, and information
between ICE and CBP is shared on trends and patterns and is
also very useful for our new Document and Benefit Fraud Task
Forces.
Also, as Assistant Secretary Baker noted, the expanded use
of expedited removal has assisted ICE and CBP in removing more
aliens apprehended at the border and the interior of the United
States. Implementation of a new policy that we have developed
Department-wide has resulted in a dramatic decrease in the time
it takes to deport other than Mexicans from an average of 90
days down to 22 days.
I also want to elaborate just for a moment on a few
examples of ICE successes within ICE's own distinct set of
missions.
First, since ICE became an independent agency, we have
really been able to use financial investigative methods in
concert with our immigration authorities; and we are showing
some tremendous results. In fact, assets seized in immigration-
related criminal investigations grew from only 400,000 in
fiscal year 2003 to nearly 34 million in fiscal year 2005.
We have also increased the number of our fugitive operation
teams that target absconders, those individuals with a final
order of removal and who evaded it. We now have 35 fugitive
operation teams in place and will have 52 by the end of this
fiscal year.
Last year, in fiscal year 2005, with only 17 teams in
operation, we effectuated over 11,000 fugitive arrests. Since
February of 05, we have arrested over 2,500 gang members from
239 different gangs and we have seized 122 firearms.
Finally, we have teamed up with the several governments in
Latin America to conduct new trade transparency units to combat
trade-based money laundering and other financial crimes.
Why are we having success? In my view, it is the
perseverance and professionalism of the men and women of ICE.
They have achieved much in just 3 short years. I believe
preserving ICE as an independent agency capable of focusing
directly upon its core mission and operations is critical to
our continuing efforts to protect the American people from
criminal and other threats that arise from our borders.
I would be pleased to answer your questions after Ms. Spero
talks, and I would ask that my full remarks be incorporated
into the record.
Mr. Rogers. It will. I want to thank you, Ms. Myers, for
being here.
[The statement of Ms. Myers follows:]
Prepared Statement of Julie Myers
Thursday, May 11, 2006
INTRODUCTION
Good afternoon, Chairman Rogers, Ranking Member Meek and
distinguished Members of the House Homeland Security Management,
Integration and Oversight Subcommittee. It is my privilege to be with
you today to discuss how ICE is applying its expertise and authorities
to protect the American people from threats that cross our borders.
THE ICE MISSION
Within the Department of Homeland Security (DHS), ICE has expansive
investigative authorities and the largest number of criminal
investigators. ICE is the Nation's principal investigative agency for
violations of the law that have a nexus to our borders. Our mission is
to protect the American people by combating terrorists and criminals
who seek to cross our borders and threaten us here at home.
In furtherance of our mission, ICE personnel are assigned overseas,
along the borders, and throughout the Nation's interior. ICE special
agents and officers utilize their unified immigration and customs
authorities to identify, investigate, apprehend and remove potential
terrorists and transnational criminal groups that seek to move
themselves, their supporters or their weapons across the Nation's
borders through human, drug, contraband or financial smuggling
networks, routes and methods.
Within the Nation's interior, ICE's Federal Protective Service
(FPS) carries out its statutory responsibility to protect federal
property, buildings and their occupants. FPS provides security and law
enforcement services to 9,000 federal facilities and one million
federal employees and visitors on a daily basis, thereby preventing
criminal and terrorist attacks against our critical infrastructure and
resources. Through each of these efforts, ICE continues to make strong
contributions to the security of our Nation and its borders.
DHS ORGANIZATION
The creation of the Department of Homeland Security in 2003
prompted the largest reorganization of the federal government in more
than 50 years. While several agencies, such as the U.S. Coast Guard and
the U.S. Secret Service, joined DHS intact, others, such as ICE, were
created from the constituent elements of legacy agencies. As a result,
the management challenges associated with establishing ICE, the largest
investigative agency within DHS, were significant. Compounding these
challenges were severe financial shortfalls in 2003 and 2004 that have
since been corrected with Congressional assistance and improved
financial management. ICE also underwent further organizational changes
with the 2004 transfer of the Office of Air and Marine Operations (AMO)
to U.S. Customs and Border Protection (CBP), and the 2005 transfer of
the Federal Air Marshals Service (FAMS) from ICE back to the
Transportation Security Administration (TSA).
I am pleased to report that ICE has now achieved a measured
improvement in organizational and funding stability. We have overcome
many of the transitional challenges associated with the agency's
creation and early development. The resolution of budget constraints
and organizational challenges has permitted ICE to increase its focus
on making strong operational contributions to our border, homeland and
national security. ICE is producing dramatic results across the full
range of ICE field operations and we are achieving ever-greater
synchronization with CBP.
The Inspector General's Merger Recommendation
Prompted in part by public reports detailing the transitional
challenges associated with ICE's early development in 2003 and 2004,
Congress requested in January 2005 that the DHS Inspector General (IG)
assess the benefits of a possible merger of ICE and CBP. The IG
conducted the bulk of its fieldwork between February and June 2005--a
time in which many of the challenges associated with ICE's early
development had yet to be fully resolved. The final November 2005 IG
report included 14 recommendations for improving the cooperation
between ICE and CBP, while recommending a suggested merger of the two
agencies.
DHS-Second Stage Review
While the IG audit was underway, DHS was conducting its own
internal, organizational review. Secretary Chertoff announced the
results of the Department's Second Stage Review (2SR) in July 2005,
which led to the dissolution of the Border and Transportation Security
(BTS) directorate, a management layer between the Department's
leadership and its component agencies. This streamlining of the
Department's organization led to direct lines of reporting between the
Secretary and ICE and CBP. Now there is the Secure Border Initiative
(SBI) office, a Departmental-level office that functions, in effect, as
the engine for increasing ICE and CBP synchronization across the full
range of interdiction, investigative, and detention and removal
functions.
These proactive steps have now eliminated the need for the
Department to incur the additional and substantial costs and risks
associated with a merger. The Department's overarching strategy
supports efforts by ICE and CBP to remain focused on strengthening
their respective investigative and interdiction mission areas, while
simultaneously improving cooperation between the two agencies.
The following structural changes have increased Department-wide
cooperation:
<bullet> The development and Department-wide implementation of
a Directorate for Policy and an Office of Operations
Coordination. These Departmental units work directly with ICE
and CBP to achieve greater efficiencies in our border security,
interdiction, investigative, apprehension, and detention and
removal operations. The Office of Operations Coordination is in
the process of establishing a new capability to design metrics
that will support efforts to constantly assess data, measure
results and make operational changes accordingly across the
Department.
<bullet> DHS has also created a new Chief Intelligence Officer
position, which includes oversight of a border security unit
devoted entirely to the development of analysis, methodologies
and requirements that will improve the fusion of border
security information while alerting ICE and CBP to
vulnerabilities that could be exploited by terrorist and other
transnational criminal organizations along the southern and
northern borders.
<bullet> The ICE/CBP Coordination Council provides a high-level
forum for ICE and CBP senior management to identify and resolve
outstanding issues between the agencies. ICE and CBP are
aligning priorities in some important areas of shared mission.
This will allow both agencies to effectively leverage each
other's capabilities to achieve the highest levels of
performance.
<bullet> The DHS Under Secretary for Management and the Chief
Financial Officer collaborate directly with ICE and CBP to
ensure greater degrees of transparency and cooperation
throughout both agencies' budget formulation and strategic
planning processes.
<bullet> By holding weekly SBI meetings with leadership from
ICE, CBP and other involved Departmental offices, Secretary
Chertoff maintains direct oversight of the agencies and signals
his personal commitment to having ICE and CBP work in concert
at all levels with the Department and one another.
<bullet> The creation of a standing SBI program office within
the Department's Policy Directorate also provides high level
direction and guidance to ICE and CBP across the full range of
border and interior investigation, interdiction, enforcement,
detention and removal operations and functions.
Ongoing organizational improvements resulting from Secretary
Chertoff's 2SR, as well as the SBI program office, show that the
Department's decision not to merge ICE and CBP was correct.
ICE believes that the Department's decision to maintain separate
agencies is correct for four principal reasons.
<bullet> ICE is producing results in every area, from removals
to partnerships with the Department of Justice and U.S.
Citizenship and Immigration Services (CIS) to innovative
techniques for catching criminals. ICE is also achieving a
record level of success--success not achieved by the component
agencies that formed ICE. This is due in large part to the
agency's ability to focus and display high level attention on
topics that previously had remained the domain of lower levels
in the organization.
<bullet> A merger would cause another massive bureaucratic
reorganization that would inflict significant financial costs
while having a profound negative impact on operational
efficiency and employee morale. It could take years before a
merged unit would reach the level of performance presently
achieved by the separate agencies.
<bullet> The recommendation to merge does not take into account
the fact that identified challenges between CBP and ICE can be
(and in fact have been) resolved through means other than a
merger. The Department's 2SR review and the creation of the SBI
office demonstrate the Department's ability to swiftly identify
and build the right mechanisms for harmonizing ICE and CBP
operations and programs.
<bullet> The DHS IG's merger recommendation also does not fully
consider the significant risks associated with losing the
operational focus presently displayed by ICE and CBP within
their respective core investigative and interdiction mission
areas. The risks include the diminished ability to apply
focused and disciplined leadership across the full spectrum of
core missions, as presently undertaken and carefully directed
by ICE and CBP leadership.
ICE and our colleagues at the Department appreciate the hard work
conducted by the IG. We continue to address and resolve issues of
concern raised by the audit. However, it remains our informed
assessment that homeland security would be best protected if ICE and
CBP remain focused on their respective investigative and interdiction
missions, while increasing cooperation where it is most beneficial.
We agree with a more recent assessment by the General Accounting
Office (GAO) Director of Homeland Security and Justice, Mr. Richard M.
Stana, who testified on March 28, 2006, before the House Government
Reform Subcommittee on National Security, Emerging Threats and
International Relations in opposition to merging ICE and CBP. Mr. Stana
stated, ``I think the best thing they can do right now is let [ICE]
mature, let it stabilize.'' We strongly believe that Mr. Stana's
assessment is correct. DHS remains strongly committed to preserving ICE
and CBP as separate agencies and many improvements have already been
made in the way the two agencies operate individually, and in concert
with one another.
DHS INITIATIVES
Since launching the 2SR restructuring of DHS and establishing the
SBI program office and its related initiatives, Secretary Chertoff has
continued to aggressively foster a unified organizational culture
across DHS. The positive impact of these efforts can be seen in several
ICE and CBP operations and programs. For example,
<bullet> In 2006, the Department initiated the first new Border
Enforcement Security Task Force (BEST) in Laredo, TX, building
upon the success of the multi-agency ICE led Operation
Blackjack that began in July 2005. BEST is an intelligence-
driven task force, comprised of officers from federal, state,
and local law enforcement agencies, including the Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF), the U.S.
Marshals Service (USMS) and CBP. These agencies share
information and target the leadership and supporting
infrastructure of violent criminal organizations operating in
the Laredo/Nuevo Laredo area. Another BEST task force has been
established in Arizona, and ICE and CBP are working together to
identify future locations.
<bullet> Last month, the Department announced the creation of
ten new Document and Benefit Fraud Task Forces across the
country to combat the growing problems and national security
risks associated with the falsification and counterfeiting of
identity documents as well as fraud involving efforts to obtain
immigration and other benefits. Along with an existing task
force in Washington, D.C., new task forces will be established
in Atlanta, Boston, Dallas, Denver, Detroit, Los Angeles, New
York, Newark, Philadelphia and St. Paul. Supporting this ICE-
led effort are the Departments of State, Justice and Labor, as
well as other DHS agencies such as U.S. Citizenship and
Immigration Services (CIS) and the U.S. Secret Service. ICE and
CIS have consistently been engaged in a productive joint anti-
fraud effort since the Department's creation. With these new
Document and Identify Benefit Fraud Task Forces, DHS is leading
the federal effort to combat the grave national security
vulnerabilities that can arise when potential terrorists and
other criminals seek to exploit our immigration system through
fraudulent means. A crucial element of this effort is the
outstanding work performed by experts at the ICE Forensic
Document Laboratory (FDL), which conducts sophisticated
forensic analysis of counterfeit and fraudulent travel,
identity and immigration benefit documents for ICE and our
federal, state, local and international partners.
The expanded use of expedited removal and the efficiencies gained
through an initial reengineering of our detention and removal processes
under the auspices of the Secure Border Initiative have enhanced our
removal capabilities. The additional beds and support staff included in
the Administration's FY 2007 budget will allow us to facilitate the
detention and removal of an additional 100,000 illegal aliens annually.
This substantial increase in ICE capacity will strengthen deterrence by
demonstrating to potential violators that apprehension is synonymous
with removal from the United States.
<bullet> By reengineering ICE and CBP processes, the Department
has continued to decrease the time it takes to remove non-
Mexican (OTM) illegal aliens from this country. This new
expansion of expedited removal (ER) policy permits the
accelerated removal of such individuals apprehended within 14
days of entry and within 100 miles of the borders. To date, ER
has decreased the average number of days that OTMs are detained
from 90 to 22. By reducing the average detention time, the
Department has, in effect, made available a greater number of
beds and associated infrastructure to support additional
capacity.
<bullet> ICE and CBP also work closely to ensure the integrity
of their respective work forces. Staffed by both agencies 24
hours per day, the ICE/CBP Joint Intake Center (JIC) was
established to receive, document, route and track misconduct
allegations involving ICE and CBP personnel. Furthermore, ICE's
Office of Professional Responsibility conducts all criminal
investigations declined by the DHS Office of Inspector General
involving both ICE and CBP employees.
<bullet> Through the Security and Prosperity Partnership of
North America (SPP), ICE and CBP are actively engaged in DHS'
cooperative efforts with the Governments of Canada and Mexico.
For example, we are working with Mexican officials to combat
border violence and improve public safety. In March, Secretary
Chertoff met with the Secretary of Governance of Mexico, Carlos
Abascal, to sign an action plan that strengthens cooperative
procedures between federal law enforcement agencies on both
sides of the border and the ability of our agencies to respond
effectively to scenarios ranging from accidental crossings to
incidents of violence. ICE and CBP are firmly committed to
coordinating law enforcement efforts with the Government of
Mexico--whether combating cross-border crime in Laredo, Texas,
reducing the number of human smugglers operating along the
southwest border, or uncovering cross-border tunnels in
California and Arizona.
While significant gains have been made in coordinating both
Department-wide and ICE/CBP operations with shared or overlapping
mission sets, the Department's current structure also allows both
agencies to develop expertise in their own mission areas without
competing priorities.
THE ICE FOCUS
By maintaining ICE as an independent agency, the Department
continues to signal two national requirements that are prerequisites
for effective homeland security:
<bullet> The need for a federal law enforcement agency
dedicated to investigating crimes that arise from and are
associated with our borders and related border activity,
including lawful and illicit commerce, trade and travel. This
dedicated, investigative capability provides a critical layer
of protection against threats to our homeland and national
security that arise from our borders.
<bullet> The vigorous enforcement of immigration laws at our
borders and throughout the interior, including the continued
development of infrastructure and mechanisms needed to swiftly
apprehend, detain and remove illegal aliens from this country.
Having reached a more stable organizational and funding level this
year, ICE has devoted maximum attention to these objectives.
One of the most significant developments to flow from the
unification of the nation's customs and immigration authorities under
ICE has been the aggressive application of financial investigative
methods to disrupt and dismantle criminal organizations involved in
immigration and human smuggling and trafficking violations. By
leveraging these authorities, ICE is now identifying and seizing the
profits of criminal organizations that once thrived and generated
extensive wealth from violating immigration laws.
Assets seized in immigration-related criminal investigations grew
from $400,000 in FY2003 to more than $34 million in FY2005. We expect
these numbers to increase as ICE special agents identify and uncover
more sophisticated immigration fraud, human smuggling and trafficking
conspiracies.
In addition, ICE is targeting its investigations to close national
security vulnerabilities and to ensure the integrity of our nation's
critical infrastructure facilities, including nuclear power and
chemical plants, military installations, seaports, airports and other
sensitive facilities.
ICE is also moving aggressively to increase the number of our
Fugitive Operations teams that target absconders - those persons with a
final order of removal who seek to evade apprehension. At the present
time, we estimate the absconder population to be more than 550,000. The
President's Budget includes additional resources to fund a total of 70
Fugitive Operations teams.
In March, ICE announced another wave of nationwide arrests of
violent gang members who are immigration status violators. Since
February 2005, ICE has arrested 2,596 gang members from 239 different
gangs and has seized 122 firearms. Fifty-four of those arrested were
gang leaders and approximately 984 of those arrested were affiliated
with the violent Mara Salvatrucha (MS-13) gang. Of the total number of
gang members arrested, 586 have been charged criminally for drug,
firearms, immigration, and Racketeer Influenced and Corrupt
Organizations (RICO) violations. Another 1,855 have been charged with
administrative violations of our immigration laws.
We also are strengthening our capacity to pursue those who
illegally seek to launder money, especially through the growing use of
trade-based money laundering techniques. Criminal enterprises have long
misused international trade mechanisms to avoid taxes, tariffs, and
customs duties. ICE has created the Trade Transparency Unit (TTU) to
identify anomalies in cross-border trade data that indicate potential
international trade-based money laundering. By sharing trade data with
foreign governments, ICE and participating governments can see both the
import and export side of commodities entering or leaving their
countries. This facilitates the trade transparency needed to identify
and investigate international money launderers and money laundering
organizations.
ICE launched the first TTU in Colombia to share information, assess
risks, and conduct intelligence-driven, trade-based money laundering
investigations. Using U.S. Department of State funding from ``Plan
Colombia,'' ICE provided support to Colombian authorities and initiated
trade-based data exchanges. U.S. investigative leads are vetted by the
TTU and disseminated to ICE Special Agent in Charge offices for
investigation, while Colombian leads are disseminated to our Colombian
counterparts for investigation. With funding from the State Department,
ICE has provided Colombia with 215 computers and other equipment. This
has strengthened the Colombian Customs Service's infrastructure
modernization project and increased trade transparency to combat trade-
based money laundering, drug trafficking, contraband smuggling, tax
evasion and other crimes involving Colombia and the United States.
ICE's enforcement of the Bulk Cash Smuggling law does not end at
our Nation's borders. In August 2005, ICE partnered with CBP and the
State Department to initiate a joint training program for our Mexican
counterparts on the methods used to smuggle bulk currency. As a direct
result of this hands-on training, our Mexican counterparts seized
during pulse and surge operations conducted over a 9-month period over
$30 million in cash and negotiable instruments that violated Mexican
currency-reporting laws. The day after this highly successful joint
operation--known as Operation Firewall--was launched in August 2005, we
witnessed the single largest bulk cash seizure in Mexico: $7.8 million
dollars. ICE has worked with our Mexican counterparts to tie these
seizures to larger investigations conducted in Mexico, the United
States, and other South American countries. Building on the proven
success of this initiative in Mexico, pulse and surge operations
commenced again in March 2006, resulting in two seizures totaling over
$7 million dollars within the first few days of the operation. Separate
from our work with Mexican authorities, ICE continues to provide
training programs to nations throughout the world in efforts to combat
bulk cash smuggling. The State Department continues to fund these
international initiatives and we are grateful for its support.
ICE is also a critical partner in the FBI led Joint Terrorism Task
Forces (JTTFs), contributing significant resources second only to the
FBI, in our Nations fight against terrorism.
Collectively, these ongoing ICE missions, programs and operations
strengthen our border, homeland and national security and underscore
the progress made since ICE's creation in 2003. I credit the
perseverance and professionalism of the men and women of ICE for
achieving so much in three short years. Preserving ICE as an
independent agency--capable of focusing directly upon its core mission
and operations--is critical to our continuing efforts to protect the
American people from criminal and other threats that arise from our
borders.
CONCLUSION
As the Department of Homeland Security's principal investigative
agency, ICE is demonstrating that it is uniquely equipped to enforce
our nation's laws and to protect the American people.
Although ICE is a new agency, we aggressively apply our unified
immigration and customs authorities to identify and address
vulnerabilities affecting the borders and the Nation's homeland and
national security. At the same time, we bring to this effort the best
of our former agencies' expertise, cultures, and techniques as we
continue to improve the efficiency of this new federal law enforcement
agency. In case after case, ICE agents, officers, analysts, and other
personnel are putting into practice, on behalf of the American people,
the powerful advantages that flow from our unified authorities. The
result is a strong and growing contribution to the Nation's border,
homeland and national security.
While the Department has made great strides in fostering a high
degree of cooperation and synchronization between ICE and CBP for
coincident mission areas, both agencies have succeeded in focusing on
their respective core mission areas that do not require high degrees of
coordination. We continue to demonstrate the significant value of
retaining both agencies' independence, while simultaneously producing
homeland security benefits derived from close inter-agency cooperation.
The men and women of ICE are grateful for the opportunity to serve
the American people and, on their behalf, I thank this subcommittee,
its distinguished members and Congress for your continued support of
our work.
I would be pleased to answer your questions.
Mr. Rogers. The Chair now recognizes Ms. Deborah Spero,
Acting Commissioner for Customs and Border Protection of the
U.S. Department of Homeland Security.
We welcome you and look forward to your statement.
STATEMENT OF DEBORAH J. SPERO
Ms. Spero. Thank you, Chairman Rogers, Ranking Member Meek
and distinguished members of the subcommittee. It is an honor
to appear before you today to discuss the cooperative working
relationships between U.S. Customs and Border Protection and
U.S. Immigration and Customs Enforcement. I am very pleased to
be here today with my colleagues, Assistant Secretary Baker and
Assistant Secretary Myers.
I would like to begin just by expressing my gratitude to
the subcommittee for the strong interest you have shown in CBP.
I particularly appreciate the time you have taken in your
oversight role to visit our front-line offices to see firsthand
the challenges we face in securing our borders.
I am confident that, working with the Congress, CBP and ICE
can succeed together in our responsibilities to the American
people.
As you know, as part of the process through which the
Department of Homeland Security was established about 3 years
ago, CBP was formed by joining much of the Customs Service with
the Border Patrol, border inspection elements of the
Immigration and Naturalization Service and border inspection
personnel from the U.S. Department of Agriculture. This new
agency had a critical priority mission to prevent terrorists
and weapons of mass destruction from entering the United
States.
To succeed at this mission, we in CBP focus on what we call
our two twin goals: the goals of securing our borders at and
between the ports of entry, while simultaneously facilitating
legitimate trade and travel.
Because personnel and operational relationships already
existed between the agencies, CBP's close working ties to ICE
at both the managerial and the field levels were already in
place when DHS was created. We have now institutionalized these
relationships at the headquarters level, and we continue to
support each other effectively while maintaining the necessary
autonomy of the two organizations, each with their unique and
important missions.
I want to strongly second Assistant Secretary Baker's
remarks about the Second Stage Review, or 2SR. The new DHS
organization which resulted from 2SR provides Secretary
Chertoff with direct oversight of the agency's operational
components. Working closely with component leadership, the
Secretary can ensure that each agency's operations are focused
on the Department's priorities, that agencies coordinate
appropriately, and that agency heads are held accountable for
mission accomplishment.
And, as noted, under the Secretary's direction, the CBP-ICE
Coordination Council was established and meets regularly; and
we think this Council is an excellent forum for discussion of
our shared objectives in both policy and operational issues.
At the field level, there is extensive interaction and
cooperation between ICE and CBP. Within CBP, both the Office of
the Border Patrol and the Office of Field Operations have
established memoranda of understanding with the ICE Office of
Investigation; and these MOUs provide that the ICE Office of
Investigation has primary responsibility for investigations
resulting from the work of CBP's border interdiction
operations.
Under these MOUs, frequent discussions are held between
CBP's Border Patrol sector chiefs and field directors and the
ICE special agents in charge and resident special agents in
charge on operational planning, communications and information
sharing. These discussions and a strong commitment to
cooperation have resulted in significant improvements in the
joint capabilities of both agencies and numerous successful
joint operations.
In the interest of time, I won't go into these operations,
but there are many of them; and we would be more than happy to
provide additional information.
In addition to the operational examples, which we would
like to discuss at some later point in time, there are many
other areas where CBP and ICE collaborate closely with great
success. Through regular meetings, joint planning, and real-
time coordination, CBP and ICE are working together on the full
range of operational and information-sharing activities
required to ensure optimal mission achievement by both
agencies. In fact, over the last year we have initiated new
information-sharing efforts to include more effective protocols
and more cooperation in the area of terrorist-related threat
warnings, joint strategies for utilization of biometrics,
sharing of daily incident threat analysis, pursuit of joint
training opportunities, coordinated intelligence-driven special
options, JTTF program alignment, and international notification
protocols.
Thank you very much for the opportunity to testify before
you today, and I will be happy to answer any questions you
have.
Mr. Rogers. Thank you, Ms. Spero.
[The statement of Ms. Spero follows:]
Prepared Statement of Deborah J. Spero
May 11, 2006
I. Introduction
Chairman Rogers, Ranking Member Meek, Members of the Subcommittee,
it is a privilege to appear before you today to discuss the cooperative
working relationship that U.S. Customs and Border Protection (CBP) has
with its sister agency, U.S. Immigration and Customs Enforcement (ICE).
I want to begin by expressing my gratitude to the Subcommittee for
the strong interest you have shown in CBP and ICE, and the time you
have taken in your oversight role to visit our front line officers to
see first hand the challenges we face in securing our borders. I am
confident, working with the Congress that CBP and ICE can succeed
together in our responsibilities to the American people.
II. Creating the Department of Homeland Security
Please allow me to briefly cover some history of CBP and its role
in the Department. In March 2003, components of 22 different Federal
agencies were brought together to form the Department of Homeland
Security (DHS). Recognizing the need to have a single border
enforcement agency, CBP was formed by joining much of the U.S. Customs
Service, with the Border Patrol, border inspection elements of the
Immigration and Naturalization Service, and border inspection personnel
from the U.S. Department of Agriculture. CBP acts as the guardian of
the Nation's borders, safeguarding the homeland by protecting the
American public against terrorists and the instruments of terrorism,
while enforcing the laws of the United States and fostering the
Nation's economic security through lawful travel and trade.Sec.
In addition to CBP, the new Department included six other
operational component agencies (ICE, the Transportation Security
Administration, U.S. Citizenship and Immigration Services, the U.S.
Coast Guard, Secret Service and the Federal Emergency Management
Agency). All seven agencies were changed to some degree by the creation
of DHS, and all had to develop new working relationships with each
other. Since ICE and CBP shared legacy portions of both the U.S.
Customs Service and the Immigration and Naturalization Service, and
because the missions of the two agencies formed a significant continuum
of law enforcement, these two agencies needed to create particularly
strong cooperative networks, from headquarters through the field
commanders to the front line officers. I am pleased to report today on
the details of the significant progress we have made in this effort.
While in the midst of forming effective working relationships with
ICE and the other DHS component agencies, the newly formed CBP also had
to launch a parallel effort internally to bring together four different
work forces inherited from the legacy agencies. At the ports of entry,
where inspectional staff from several agencies were merged into one
organization, we established as our goal ``One Face at the Border,'' a
comprehensive approach to forging the disparate elements of the legacy
agencies into a unified and effective workforce, focused on the new
anti-terrorism mission. Between the ports of entry, the Border Patrol
was also facing unique challenges, re-focusing on anti-terrorism as its
priority mission and entering a period of rapid growth to meet new
mandates to gain more effective control of the border and improve
interdiction of illegal immigration.
Our transition management process focused on the changes needed to
bring CBP together as one agency with a single culture and one mission
to which all our personnel felt a sense of commitment and dedication.
We fully utilize the unique talents and expertise of all personnel from
the legacy agencies to achieve this mission.
In October 2004, while continuing to move forward on ``One Face at
the Border'' and other unification initiatives, Secretary Ridge moved
the air and marine force from ICE to CBP, combining two operational
entities with similar missions into one agency with a single chain of
command and a clear, coordinated mission set. Specifically, ICE's
Office of Air and Marine Operations (AMO) was moved to CBP, where it
was subsequently consolidated with the Office of Border Patrol's air
and marine units to form Customs and Border Protection Office of Air
and Marine (OAM), the single largest unified law enforcement air force
in the world.
Within a three year period, CBP has been simultaneously managing
three separate major reorganizations: the move to a new Department, the
consolidation of four legacy work forces, and the addition and
unification of major new operational air and marine forces. While it is
often said that mergers of this magnitude take many years to be fully
institutionalized, we are enjoying solid success and realizing
increasing benefits on a daily basis from the synergy and improved
operational effectiveness of the new organization.
III. ICE-CBP Headquarters Coordination
Because personal and operational relationships had already existed
between the legacy agencies, CBP's close working ties to ICE at both
the managerial and field levels were already in place when DHS was
created. I would like to describe how we have institutionalized these
relationships at headquarters to continue to support each other
effectively, while maintaining the autonomy of the two organizations,
each with a unique and important mission.
Under the Secretary's direction, the ICE-CBP Coordination Council
was established. The Council meets regularly and has made significant
progress on policy and operation issues where senior decision makers'
engagement has produced rapid agreements on joint solutions. Chaired by
the CBP Commissioner and the ICE Assistant Secretary, the Council's
core membership includes the operational leadership of both agencies:
------------------------------------------------------------------------
CBP ICE
------------------------------------------------------------------------
Acting Commissioner Assistant Secretary
------------------------------------------------------------------------
Assistant Commissioner, Office of Field Deputy Assistant Secretary
Operations
------------------------------------------------------------------------
Chief, Office of Border Patrol Director, Office of
Investigations
------------------------------------------------------------------------
Assistant Commissioner, Air and Marine Director, Office of
Detention and Removal
------------------------------------------------------------------------
Director, Office of Policy and Planning Senior Policy Advisor
------------------------------------------------------------------------
Director, Office of Anti-Terrorism
------------------------------------------------------------------------
Through the Coordination Council, CBP and ICE are clarifying
guidance to the field on referring cases for investigation and handling
seized property, and we also agreed on a joint response to the
recommendations in the DHS Inspector General's report entitled, An
Assessment of the Proposal to Merge Customs and Border Protection with
Immigration and Customs Enforcement. Under the Council's leadership, we
developed a strategy for addressing an ICE requirement for temporary
CBP augmentees to cover a short-term personnel shortage. Additionally,
we have defined each agency's roles and responsibilities in meeting DHS
requirements at our overseas embassies and consulates.
The Air and Marine Operations Council is another major forum for
CBP/ICE coordination on critical operational issues. The Air and Marine
Operations Council is a vital part of the new command structure
designed to make CBP OAM more flexible, effective, and efficient
against the various threats it combats. Members of the Air and Marine
Operations Council include the Commissioner and Deputy Commissioner of
CBP, the Assistant Commissioner for CBP Air and Marine, the Chief of
the Border Patrol and the Director of the Office of Investigations (OI)
within ICE. The Air and Marine Operations Council makes recommendations
on key operational and tactical control matters, ensuring that a
balanced process is in place for addressing the varied mission
requirements our aviation program must satisfy.
IV. CBP Border Patrol and ICE Office of Investigations Coordination
At the field level, there is extensive interaction and cooperation
between ICE and CBP. In 2004, the CBP Office of the Border Patrol (OBP)
established a Memorandum of Understanding (MOU) with the ICE OI. The
MOU established that ICE OI has primary responsibility for all
investigations into border interdiction/apprehension operations that
CBP OBP conducts between the ports of entry, with the exception of
narcotics. Under CBP's Title 21 Delegated Authority, the Drug
Enforcement Administration (DEA) has the first right of refusal for
investigation of narcotics cases. When CBP OBP makes a referral to DEA,
it provides details of the referral and pertinent information and
intelligence to ICE. Under the MOU, frequent discussions are held
between CBP OBP Sector Chiefs and ICE Special/Resident Agents in Charge
on improving operational planning, communications and information
sharing. These discussions and a strong commitment to cooperation have
resulted in significant improvements in the joint capabilities of both
agencies and numerous successful joint operations:
<bullet> A Border Enforcement and Security Task Force (BEST)
has been created in Laredo, Texas, and in March, a second BEST
began in Tucson, Arizona. The BESTs are new arrangements for
sharing information, developing priority targets, and executing
coordinated law enforcement operations, not only between ICE
and CBP, but with State and local law enforcement as well, with
the goal of dismantling border criminal organizations.
<bullet> In several Sectors, such as El Centro, Del Rio and San
Diego, Border Patrol agents have been assigned to ICE Human
Trafficking Units to promote improved information sharing and
better operational coordination against human smuggling
organizations. Co-location of our personnel has been
instrumental in breaking up several of these gangs and
improving our joint ability to apprehend other-than-Mexican
illegal aliens, as well as Special Interest Aliens.
<bullet> Local ICE offices periodically assign their Senior
Intelligence Research Specialists (IRS) to Border Patrol
Special Intelligence Units to improve information exchange and
share best practices on intelligence support to operations.
This cooperation has contributed directly to improved
operational success against human, narcotics and weapons
smuggling operations.
<bullet> In San Diego, the ICE Special Agent in Charge and
Border Patrol Chief Patrol Agent have agreed to use the San
Diego Sector Command and Control Intelligence Coordination
Center (CCICC) as the conduit for the dispersal of real time
and other intelligence from BP to OI and vice versa. All
notifications to ICE OI are coordinated through the CCICC and
ICE OI has committed to assigning an intelligence analyst to
the center for information sharing.
<bullet> The Temecula Border Patrol Station has entered into an
agreement with the ICE OI ASAC for Riverside/San Bernardino
counties to collocate a Border Patrol intelligence agent in
their office. The agent facilitates information sharing for
joint enforcement operations for alien smuggling/load houses in
the Station's area of responsibility. When ICE has a target
location they would like to investigate in this area, they pass
the information to the Temecula Station and provide a case
agent to support an enforcement action.
<bullet> Operation Streamline is an outstanding example of how
close cooperationbetween ICE's Detention and Removal Operations
Office and the Border Patrol has produced a highly successful
operation. To support this special operation, the Border Patrol
has assigned two Supervisory Agents to the San Antonio DRO
office to assist in travel coordination for aliens apprehended,
prosecuted, and removed. As part of the multi-layered
enforcement effort, the Border Patrol and DRO have worked hand-
in-hand preparing and coordinating removal proceedings for
those aliens requiring appearances before an immigration judge.
<bullet> Recently, CBP OBP and ICE cooperated on three high
profile operations in New Orleans. CBP OBP Agents manned boats
to intercept a drug and alien smuggling load that originated in
Colombia, and CBP OBP Agents assisted ICE with the interception
of smuggled Chinese workers who were being transported to a
place of employment. Additionally, ICE and CBP OBP worked
together with the New Orleans Police Department to provide
security during the recent Mardi Gras celebrations.
These are but a few examples of the constant coordination and
support at the field level between CBP's Office of Border Patrol and
ICE.
V. CBP Office of Field Operations and ICE Office of Investigations
Coordination
The CBP Office of Field Operations (OFO) and ICE OI signed a MOU in
2005, which has significantly improved mutual support, operational
planning and information exchange between the two organizations.
Recognizing that ICE OI is the primary contact for investigative
matters for CBP OFO, the MOU created a nation-wide council of CBP
Directors of Field Operations and ICE Special Agents in Charge. This
council manages a range of interactions that require operational
coordination across both agencies. The MOU has provided a framework for
personnel exchanges and improved operational success:
<bullet> CBP Officers at land border ports, airports or
seaports refer narcotic seizures, currency seizures, and trade
fraud interceptions to the local ICE duty agent, who responds
with the full investigative capabilities required to prepare
these cases for Federal prosecution. This is the most typical
interaction between CBP OFO and ICE, and occurs on a daily
basis throughout the nation.
<bullet> ICE personnel have been assigned to the CBP National
Targeting Center (NTC) to support bilateral cooperation on
interdiction of attempts to enter the United States by
potential terrorists. Working from the NTC, ICE has access to
all information on attempted illegal entry of people or goods,
and can focus investigative efforts more precisely.
<bullet> CBP and ICE have clarified their roles and
responsibilities on the FBI-led Joint Terrorism Task Force
(JTTF) and have enhanced the complimentary role the two
agencies play in that organization. CBP and ICE jointly
participated in a conference on JTTF operations in December,
2005, which laid the foundation for new operational guidance on
mutual support through the JTTF.
<bullet> Joint CBP/ICE planning and implementation of
special operations has become a highly sophisticated
and successful example of how the two agencies work
together to improve national security. Two recent
examples of such operations include:
<bullet> Operation Firewall--a bulk-cash interdiction
operation coordinated through the ICE Financial
Investigations section and the CBP Tactical Operations
Division. The purpose of the operation is to intercept
drug proceeds in large quantities. In addition to
coordinating this operation with DHS, the International
Affairs sections of both agencies also coordinated with
State Department and the Government of Mexico. As part
of this operation, training is being provided to
Mexican law enforcement officers in interdiction
techniques, which recently resulted in the largest
currency seizure in Mexican history ($7.8 million).
<bullet> In close cooperation with the ICE-led Operative
Blackjack taskforce, the Narco-Violence Initiative was
conducted from August 2005 to January 2006, at the Port of
Laredo. Driven by a new approach to using actionable and
tactical intelligence in the field, the operation has been
highly successful in apprehending of criminal gang members
linked to border violence in Nuevo Laredo, Mexico, and Laredo,
Texas, as well as interdicting narcotics, aliens and bulk cash
smuggling activities.
Once again, these are but a few examples of the day-to-day
coordination between CBP and ICE at our nation's ports of entry.
VI. Conclusion
Through personnel exchanges and extensive joint planning, CBP and
ICE are coordinating today on the full range of operational and
information sharing activities required to ensure optimum mission
success by both agencies. The new DHS organization, which resulted from
Secretary Chertoff's Second Stage Review, has provided DHS leadership
with enhanced oversight that ensures that the two agencies focus
effectively on their respective core missions of border interdiction
and investigation, while mutually supporting each other where the
missions overlap. Through the current organizational arrangements, CBP
and ICE can focus on their core missions, while working together
through numerous institutionalized arrangements for cooperation and
joint planning.
Mr. Rogers. We are probably going to be called for a series
of votes, and we will be gone for about an hour, so I am going
to try to keep my questions short and urge the other members to
do the same and follow up with written questions that we may
have, so we can let you go before we leave for this series.
Ms. Myers, I understand that since the separation of the
two entities that ICE has been able to clean up its financial
house and improve significantly their accounting problems that
were a real problem initially. You stated in your opening
comments that you all had measured improvements, and you gave a
couple examples, but can you elaborate on the measurements that
you are taking, the things that you can point to that
objectively demonstrate why the system is working the way it is
structured at present?
Ms. Myers. Thank you, Chairman Rogers.
Absolutely, there are a number of things that show how ICE
is achieving results.
On the financial front, we are making substantial steps in
improving our audit status. I was able to name the agency's
first chief financial officer on my first day, as well as a
deputy assistant secretary for management.
We have also greatly improved our investigations in a
number of areas. For example, on the work site enforcement
front, in terms of criminal cases against employers, we went
from a very small number to 123 last year. I expect the number
of arrests to be even higher in this year.
In terms of cases involving document and benefit fraud, we
have multiplied those numbers. Our conviction numbers remain
very high, and we are seeing a lot of cross-integration. For
example, we often do investigations into in-bond diversions and
to see if there is a problem there. We started finding that,
actually, while we are doing the fraud investigations, we are
finding a lot of illegal aliens. So having agents that are
cross-trained to see both sides of the picture has been very
helpful in more effectively carrying out our core missions.
It is the same thing in export enforcement. There are
individuals that are here legally, maybe under some sort of a
visa status but may be working in an area where they are not
supposed to have access to licensed technology. This is an area
where Immigration and Customs blends and where we are able to
really dedicate our authorities and where our members will be.
Mr. Rogers. You made reference to feedback that you are
getting from your folks in the field about the current
structure and it being favorable. Can you give some examples of
things that you can point to or feedback that you are getting
now that didn't exist a year ago or a year and a half ago when
these criticisms of the current structure really were loudest?
Ms. Myers. Certainly. I have been listening to comments
across the board from agents in the field, everything from
their concerns with the finances to concerns with the kinds of
cases that they are doing.
Mr. Rogers. Do you still get comments from folks in the
field saying we need to go back to be a single entity?
Ms. Myers. Frankly, I do not really get comments like that.
I do get comments of frustration of other sorts of things; for
example, being frustrated about how long it took to go through
the hiring process. We have had a financial situation in this
agency, so we had a number of procedures set up to protect us
in the hiring process. What I was able to do, because of the
agency's strengthened financial status, is remove one of those
steps from the waiver board.
Another thing they complained about, rightfully so, is some
of them were in hardship locations, being unable to move. What
I was able to do, given our improved financial status, is make
it available for agents to be transferred off the border in
these hardship locations immediately; and that is improving
morale.
To be frank, I think integration is better in some
locations than others. The agency is still on its way, but I
think our numbers point in a positive trend.
Mr. Rogers. Ms. Spero, for those folks who are advocating
that we merge CBP and ICE, what is your initial response in
plain language as to why that is a bad idea, if you think it is
a bad idea; and, apparently, from your statement, you do.
Ms. Spero. I do. I think it is a very interesting
phenomenon that we are undergoing. In many ways, if you asked
this question in 2003, the answer might be a little different.
Because when we first set up the two agencies, really breaking
up INS into three and moving a portion of it to ICE, there were
very, very difficult times for our former Customs employees.
I am a former Customs employee. It was wrenching for people
who had committed their careers to one agency to say now you
are doing something else. And I think that is just an
inevitable part of a huge organizational change, that people
have a hard time giving up something they know and love and
learning to accept a new world, which is part of this merger
and culture change.
I do believe, though, we can't use a 2003 issue to solve or
address 2006 issues. I think we have come a long, long way; and
my personal opinion is that the two organizations are working
well together and that a merger is not just the disruption,
which we do believe would be highly disruptive, to me, it would
be the wrong way to design an organization. It would be an
enormous, enormous scope of authority for one individual to try
to manage that huge range and hold everybody accountable.
I think, working in an organization as a manager for as
many years as I have, I think there is the right size that one
manager can handle. I think we are individually--our two
agencies are at that right size, and I would worry about
combining them.
Mr. Rogers. Thank you very much.
I see my time is up. I recognize the ranking member, my
friend and colleague from Florida, Mr. Meek, for any questions
he may have.
Mr. Meek. Thank you.
I will go back to page 2 of my opening statement, Mr.
Chairman: Detention and removal operations were hindered,
interdiction and investigation capabilities have been weakened,
and there was a lack of coordination of intelligence activity.
Those are the three points out of the Inspector General's
report.
It takes me back to my first question, for whoever on the
panel that wishes to answer the question: Understanding the
response to the Inspector General's report as relates to
development of a Coordinating Council, who are the
representatives amongst those members on the Coordinating
Council? Are there rank and file CBP inspectors or Border
Patrol agents, ICE investigators, or detention and removal
officers? Are they included in this Coordinating Council? Do
they sit on this Council?
Ms. Spero. Either one can handle, because we both co-chair
the Council. It is composed deliberately of senior leadership,
not because there should not be other forums for rank and file,
but this deals with high-level policy issues. Both Assistant
Secretary Myers and I work very hard on this Council with just
a select few of our key operational leaders.
Mr. Meek. I am more concerned about what happens at 3:00 in
the morning or 5:00 in the morning on the border. Who can best
bring to light at the Council level of what kind of
coordination we actually need to protect our borders? With all
due respect to the seniors who are there, I am saying we visit
these sites. We are not actually part of an ICE investigation
or part of a CBP investigation or what have you.
Ms. Spero. The purpose of the Council is not for that kind
of case operational coordination, so it is a different kind of
structure. It is more of a governance body, if you will, at the
local level. In the middle of the night or any time, Border
Patrol agents are in constant contact with ICE agents and vice
versa in accordance with the protocols that we have set up.
Mr. Meek. Part of the response to the correspondence that
we received from the Department is saying that this was to help
streamline what goes on on the front end, and I am concerned by
the fact that they are not on it. We can't assure that these
agreements have been really communicated to the folks
throughout the Department.
The chairman asked for some feedback. We are saying that we
are getting feedback from the field, but it is not being
identified, unless it is at the Secret or Top Secret level or
ongoing investigation or saying this is a lot better now that
we have this council structure in place.
I am just trying to figure out even among the department
that works so closely together--and there has been a lot of
discussion here about memoranda of understanding between two
entities that are in the same department--how much time is
being spent on those memoranda of understanding? And if
everything is going so well, we are still receiving phone
calls, e-mails and information saying that they are not.
I mean, I am trying to really get down--and maybe I may get
more in the next panel, but I am really trying to getting the
Department to say that, listen, we are getting everything that
we need to know at our level, and I can assure you,
Congressmen, that we are and making sure that operations are
running smoothly.
I am more concerned--I am not concerned as much--I am not
concerned about right now as I am 1 or 2 years down the road.
Because this committee is hot and heavy on the question of
should we merge or not. What happens when we say okay, well, we
believe everything that people are telling us and from what you
understand and we understand and let's move on to the next
issue.
I want to hear more about--give me something to run with.
Because I don't want this panel to go on and the next panel and
say, Congressman, you are absolutely right. It is not bubbling
down, not helping us on the front line, and what we are hearing
from the people that work with us, that there is a problem.
Mr. Chairman, I want to let you know, to get an active
Border Patrol or ICE agent here to grab the mike, many of them
feel they will be making a career decision if they do so. That
is just a normal kind of situation.
But if you can give me a little feedback, quickly. I am
sorry I took so long.
Ms. Myers. Ranking Member Meek, if I could elaborate a
little bit. Whenever I hear of a problem or a complaint on
coordination either with CBP or with the Coast Guard or DEA or
someplace else, we have our managers look into it. What the
Council is assigned to do is address if we see systemic
problems occurring.
For example, just yesterday, we were talking about some new
issues down on the border; and it just happened to be that the
Border Patrol sector unit and the others were all in
Washington, D.C., so they got together to try to come up with a
field level plan to address it and presented it to us.
That is the kind of initiative we are driving down from
ICE, I believe they are driving down from CBP, is it perfect--
no, we think the trend is up. We think there are improvements
that are being made.
Mr. Meek. Madam Secretary, my time has run out, but I
believe, between when the vote is called--I know my other two
colleagues will get there in 5 minutes. If we get a chance to
come back around, or if we don't, I would appreciate if your
staffs stay around for the second panel. Because it will help
us if something is said in the second panel that needs to be
addressed, because we are at a very pivotal time in making some
decisions on what we are going to do.
It will be good for the Department to send us something in
writing to our staff or to us to let us know your position on
this, because I am pretty sure that they will let us know their
position on what was stated here in the first panel.
I appreciate all of you coming. Thank you, Mr. Chairman.
Mr. Rogers. I thank the gentleman.
Also, I would note that the second panelists are here, so I
would be interested in their perspective on what they are
hearing now when they take their chairs.
The gentleman from Indiana, Mr. Souder, is recognized for
any questions he may have.
Mr. Souder. First, let me say we can never express enough
our appreciation to the people who work in CBP and ICE, that
all this is interesting discussion, but they are out there
every day taking risks and working hard. We appreciate every
drug bust they make, every person they apprehend, every person
they discourage from illegally entering the country. That needs
to be said.
I also appreciate that, in fact, that we have had increased
success. Quite frankly, we should have increased success,
because we spent millions of dollars and hired lots more people
and are presumably somewhat better organized. What we are
really debating here is not radical overhaul but how an
organization is structured and having a management difference
of opinion of how best to do that.
Clearly, GAO and others outside don't share your view that
it is just managerially clear cut here. There is a legitimate
debate. What you would clearly have is two divisions
underneath. The question is, you already have the Coast Guard,
we are trying to figure out TSA, and all these different
agencies with different brands and is this part of ICE and CBP
really a separable brand or should it be integrated? Because
you already have a multi-tasked Coast Guard.
This would be like separating the Coast Guard into
divisions: fisheries, operations, rescues, and for narcotics.
We don't separate them so they can have a unified structure to
deal with their fungible-type problems.
Even though these agencies are bigger, I understand they
are bigger, you would still need the subpart. The question is,
why do we have to create all these new offices linking
something that should be like the Coast Guard, which is a
functional border agency?
To me, the Shadow Wolf question keeps coming back. Because
you seem to say that we are so rigid in CBP and ICE that we
don't have a way to accommodate special cases.
I am not from Arizona. I am not Native American. I have a
German background. I believe it is very important to have these
kind of units. But it is not just that.
When I was up in Vermont and upstate New York, I asked how
many agents there spoke French. Because, clearly, a big
percentage of the people across from Maine, Vermont and parts
of New York speak French. Do you have any incentives to train
to speak French? Are there any criteria for CBP that come up in
that area that you understand the language across from you.
One guy did speak French all of his life, but he couldn't
pass the test because the French they speak doesn't meet the
government standards of how we have this formal French.
So the question is, would you have, in an area where there
is a higher risk of historic smuggling operations across from
Maine, special type things that might blend between ICE and
Border? Because it is not enough to say, oh, that is
investigation. No, it is not investigation. When they come
across the border and there is a package there, they are
supposed to call up and get a language interpreter if they
don't know.
But when people across from you speak French, it makes some
sense to have a specialized unit. But it is not just that. It
is across from Buffalo and Detroit are where most of the
Arabic-speaking people are going to come across. But we don't
have any kind of idea of special incentives or how to
accommodate special units that work on those borders that are
doing both important functions, picket fence and monitoring at
the crossings and official ports of entry, picket fence in
between and trying to discourage people from coming in and
detaining them if they do, and the investigations. It is the
same function. Some of it goes back and forth.
Now if you can accommodate some sort of special unit, then
it makes some sense. But if you are so rigid that everybody has
to either be this, which is a legacy border patrol person whose
job is to discourage people from coming through, or an ICE
person, which is a legacy investigatory function, you are going
to fail.
I would like to hear some specific response on the Shadow
Wolves in particular and what I raised here with other language
questions where you have preponderance of challenges that are
unique.
Ms. Spero. Thank you. I would be glad to start on that
first question of the Shadow Wolves.
I certainly agree we need to be flexible. Now 3 years into
our new agency set-up, I think it is more than time for us to
take a hard look at anomalies, things that don't necessarily
fit. And with that in mind, Assistant Secretary Myers and I
have had a series of conversations about what is the best
placement for the Shadow Wolves. I have to say we haven't quite
finished our conversations, but we would be glad to report back
to you at such time as we have finished the discussion. We are
keeping an open mind on this.
Ms. Myers. If I could just add to Commissioner Spero's
comments, I think the Department fully agrees with you that we
need to be flexible and think about things in different ways;
and I do think the Secure Border Initiative and the leadership
of the Secretary is forcing us to do that, not only think about
where do we need to be more creative in dealing with CBP but
with, for example, citizenship and immigration services.
ICE is partnering with USCIS in a number of ways we never
did before. We need to. It is a problem if we have illegal gang
members applying for benefits. We needed to partner up closer.
I think the Department's leadership is forcing us to be more
flexible and think about things in more creative way.
With respect to language, we have added into all of our
announcements now that foreign language is desirable, to try to
encourage native speakers of different languages, because we
believe that would be very useful.
Mr. Souder. Do you grant that some parts of the country are
more need than others or are you going to put a French person
in Montana or down in New Mexico?
Ms. Myers. Certainly it is needed more in certain parts of
the country than others, but I think having foreign language
fluency is ideal for everyone, frankly, in our agency, so we
are definitely encouraging that.
Mr. Rogers. The Chair recognizes the gentleman from Texas,
Mr. McCaul, for any questions he may have.
Mr. McCaul. Thank you, Mr. Chairman.
I want to focus specifically, and it may not be the
integration of CBP and ICE but rather on these border
enforcement and security task forces. I am from Texas, and I
have been down to Laredo, and I visited with them, and I am
trying to recall if these task forces included the local
sheriffs.
Ms. Myers. They did.
Mr. McCaul. This is sort of a pilot program in Laredo at
this time?
Ms. Myers. It was a pilot in Laredo when it was called
Operation Blackjack. Secretary Chertoff saw that pilot, saw the
success between ICE and CBP, also DEA, ATF and State and
located--and the intelligence community--and decided to work
with DOJ to expand it. So we have expanded it into the Tucson
sector, kind of a brand new one starting up, and we are working
now on our third. They are intelligence driven, so we look to
what is the threat in that area. In Laredo, of course, it is
cross-border violence; in the Tucson area, more alien
smuggling. Our third location may be something different.
Mr. McCaul. I used to work at Justice with the Joint
Terrorism Task Force. Is it similar to that kind of model; is
that what you are trying to replicate.
Ms. Myers. It is similar to the JTTF, although--and both
our agencies have large participation on the JTTF, although
this is designed to be a little more flexible and intelligence-
driven in the front end in terms of focusing on something as
specific as an intelligence threat in a particular area. And so
a BEST is not formed until an intelligence assessment is
completed, and it is based on that, that a BEST is formed. It
is not in competition with the JTTF.
Mr. McCaul. And the HIDTA, the High Intensity Drug
Trafficking Areas, is it similar to that concept, do you think,
or not? How would it compare to HIDTAs?
Ms. Myers. HIDTAs take various shapes and sizes, from my
experience in different places, so I think in some of the more
successful HIDTAs, it would certainly model that type of a task
force, but it would depend on a particular HIDTA you are
referring to.
Mr. McCaul. Would you see any utility to developing a high
intensity border area that would have an enforcement piece to
it, that incorporates a multiplier effect of Federal, State and
local law enforcement?
Ms. Myers. From my personal view, I think that is something
that we should definitely look at. I think that is what the
BESTs are designed to try to do. And I think we should think
about all sorts of creative ways to address these problems.
Mr. McCaul. We can appropriate 7,000 more Border Patrol,
but really, the locals can provide a multiplier effect. And we
have Operation Linebacker, which you are familiar with, which
is more share-driven; Stonegarden, which is more Border Patrol.
I met with Carl Rove this morning, and he talked about
Operation Streamline, and unfortunately, I didn't get to stay
through the whole presentation. Mr.Baker, you may be in the
best position to comment on Streamline. His view is that we
have had great success with this pilot program so far.
Mr. Baker. We have. It is essentially a zero-tolerance
approach to people who cross the border. Everyone who crosses
the border in a section of about 150 miles is prosecuted or
serves time, 30 or more days in jail. The result of that is
there has been a great drop in border crossings in that area.
And remarkably, the actual number of cases that have had to go
to trial has not gone up substantially so that the commitment
of resources by the Justice Department has been manageable, and
we are very, very pleased with the Justice Department's
participation in that and are looking for ways to expand it. It
requires cooperation from the U.S. attorney in the area, great
cooperation from the courts. We had all that in Operation
Streamline, and I hope we can get it elsewhere.
Mr. McCaul. Is that in the Del Rio sector, Streamline?
Mr. Baker. Yes.
Mr. McCaul. And I guess most of them pled guilty, so you
didn't have a trial?
Mr. Baker. Yes.
Mr. McCaul. In terms of resources with prosecutors and
judges, they were able to bear on that?
Mr. Baker. Exactly. I would say the caseload has not, as I
said, increased, even though we have steadily expanded from
about 5 miles of the border to more than 150.
Mr. McCaul. Is there any plan to basically develop that--
expand that all across the southwest border?
Mr. Baker. We would love to do that. It would require
careful coordination with the Justice Department, because we
are really spending lots of their resources, and I think
coordination with the courts as well because, by and large,
Federal courts are reluctant to handle masses of what they view
as small cases. But I think given the success of Streamline, I
am hopeful that we can get that cooperation.
Mr. McCaul. Last question. It seems to me that CBP seems to
favor Stonegarden over Linebacker. Can you articulate, is that
true, number one? And if so, why?
Ms. Spero. I am not sure that we do. I would have to look
into this a little more and get back to you. I think we support
both. I think they are different, but we are very supportive of
both. I would be glad to take a look and get you more
information on that.
Mr. McCaul. That would be great.
Thank you, Mr. Chairman.
Mr. Rogers. I appreciate very much you being here. I hate
that this vote has been called because I have many more
questions. I know that my colleagues do, but your input has
been very valuable to us and helps us in this decision-making
process.
I would remind each of you that we leave the record open
for 10 days, and I know that I will be submitting additional
questions to each of you, and I would ask that you respond to
those in writing, not only for me, but for the other members
who do have additional questions.
And with that, we will dismiss the first panel, and thank
you for your attendance in being here. And we will recess for
one hour and return for our second panel at that time. And with
that, we are in recess, thank you.
[Recess.]
Mr. Rogers. This subcommittee will come back to order. And
we convene our second panel. And I want to apologize for the
delay, but thankfully, we are through for the day over there,
so we won't be bothered again with having to leave.
Mr. Rogers. I want to call our first witness, who will be
Mr. T.J. Bonner, who is back before us. And we are proud to
have you, Mr. Bonner, as president of the National Border
Patrol Council, and we look forward to your statement.
And I would remind all of you the same thing, your entire
statement will be put in the record. If you want to give an
abbreviated version, that would be great.
Mr. Bonner.
STATEMENT OF T.J. BONNER, PRESIDENT, NATIONAL BORDER PATROL
COUNCIL, AMERICAN FEDERADION OF GOVERNMENT
EMPLOYEES (AFLO-CIO)
Mr. Bonner. Thank you, Chairman Rogers, Ranking Member
Meek. It is, again, an honor to be in front of this
subcommittee discussing this important topic.
The events of 9/11 should have served as a wake-up call to
America, and to many people it did. It occasioned the creation
of a brand new department that was supposed to ensure that
another terrorist attack never happened. Thankfully, to this
date, it has not, but it doesn't give me warm fuzzy feelings
when I look around the Department of Homeland Security and see
the lack of coordination, cooperation and communication. One of
the glaring examples of this is the artificial distinction
between interior enforcement and border enforcement that ICE
and CBP have brought about.
The framers of the Homeland Security Act got it right; they
called for the U.S. Customs Service to be a separate agency.
They called for the division of the enforcement and service
parts of the Immigration and Naturalization Service. The
creation of the Bureau of Border Security would have absorbed
all of the enforcement pieces of the INS, the Border Patrol,
the inspections, the investigations, detention and removal, and
agriculture would have remained a separate entity.
The President, in his reorganization plan of February the
4th, 2003, changed all that. He created ICE and CBP and
launched the One Face At the Border initiative. Both of these
were a mistake, and the only way to fix this mistake is to undo
this mistake. It can be done administratively. I don't believe
it requires congressional action, but it has hampered the
accomplishment of the mission. The mission of the Department of
Homeland Security, obviously, its most important function is to
ensure that another terrorist attack never happens.
And I sat here and listened to the examples of cooperation
given from the previous panel, and I am not going to tell you
that good things aren't happening, but they are happening not
because of the structure but in spite of the structure. We need
to come up with a structure that ensures that the brave men and
women who are doing these jobs have every tool at their
disposal and that the lines of communication are wide open and
facilitate the accomplishment of the mission. The way it works
now is, people who have been around for a while know someone
else who has been around for a while, and they can pick up the
phone and make things happen. That should not be--we should not
have to go through this serpentine process to get the mission
accomplished. It should be very easy to accomplish the mission
because if we get it wrong even once, the terrorists win.
So our recommendation is not to simply merge ICE and CBP
because that would leave you with a structure that is still
dominated by one agency, and in this case, the Customs Service,
not to detract from the importance of that mission. It is a
very important mission, but so is Immigration, and so is
agriculture.
Our recommendation is that we go back to the way that the
framers of the Homeland Security Act envisioned this working,
with a separate Customs organization, a separate Immigration
organization and a separate agriculture organization, all with
seamless chains of command within there, and no artificial
barriers between investigations and patrol functions and
inspections functions. This, to us, makes the most sense.
And one final note, we have been debating this issue for a
number of years now. We believe it is time to get off the dime
and take some action. I don't want to be here next year in part
six of a hearing to study something that could have been easily
resolved now. And the homeland security of this country demands
that action be taken swiftly to cure this problem.
I had the pleasure of being in the Rio Grande Valley last
week--in fact exactly a week ago--and talking to about 50 of
the frontline agents. The current system is not working. We
don't have sufficient funding in ICE. Even though everyone is
being put into the expedited removal program, some aliens are
being held at our Border Patrol stations for 4 or 5 days before
we can get them over into property detention spaces. This is
simply unacceptable.
The system is broken. It needs to be fixed, and the time to
act is now. Thank you for your attention, and I would be happy
to answer any questions.
[The statement of Mr. Bonner follows:]
Prepared Statement of T.J. Bonner
May 11, 2006
The National Border Patrol council appreciates the opportunity to
once again present the views and concerns of the 10,00 front-line
Border Patrol employees that it represents regarding the organizational
structure of the components within the Department of Homeland Security
Responsible for Enforcing immigration, customs, and agriculture
laws.\1\
---------------------------------------------------------------------------
\1\ The National Border Patrol Council previously offered testimony
concerning this matter before the Subcommittee on Infrastructure and
Border Security of the Select Committee on Homeland Security on June
15, 2004; before the Subcommittee on Management, Integration, and
Oversight of the Committee on Homeland Security on March 9, 2005; and
before the Subcommittee on Immigration, Border Security and Claims of
the Committee on the Judiciary on May 5, 2005.
---------------------------------------------------------------------------
The Homeland Security Act of 2002 established the Directorate of
Border and Transportation Security, and transferred thereto all of the
functions, personnel, asses and liabilities of the Customs Service, the
Transportation Security Administration, the Federal Protective Service,
the Federal Law Enforcement Training Center, the Office for Domestic
Preparedness, certain agricultural inspection functions, and the
enforcement programs of the Immigration and Naturalization Service. It
also called to the establishment of a Bureau of Border Security to
establish the policies for performing all of the immigration
enforcement functions that were transferred to the Directorate of
Border and Transportation Security, and to oversee the administration
of such policies. Significantly, the Homeland Security Act as
originally enacted did not contemplate merging the immigration and
customs enforcement functions, but rather maintained a very bright line
of demarcation between the two.
On February 4, 2003, the President of the United States Submitted a
revised Reorganization Plan to the Congress that created two
enforcement bureaus under the Directorate of Border and Transportation
Security instead of the single Bureau of Border Security envisioned by
the Homeland Security Act. Under the new structure, most of the
enforcement resources of the Immigration and Naturalization Service and
Customs Service were split along geographic lines and placed into the
Bureau of Customs and Border Protection if they worked near the borders
or at a port of entry, and into the Bureau of Immigration and Customs
Enforcement if they did not. At the time, the Administration launched
the controversial ``One Face at the Border'' initiative that merged the
immigration, customs, agriculture inspections functions into a single
occupation.
Both of these modifications to the Homeland Security Act were
serious mistakes, and significantly hampered the ability of the new
Department to carry out its mission. It should have been clear from the
outset that tasking two bureaus to enforce the same laws, with
jurisdiction divided along meaning less geographic lines, would lead to
massive breakdowns in communication, coordination and cooperation.
Likewise, it should have been apparent that the requisite levels of
expertise would suffer greatly if three specialized occupations were
merged into one. While several independent entities now acknowledge the
folly of creating two separate enforcement bureaus to enforce the same
laws,\2\ there is no similar consensus concerning the problems that
will result from the ``One Face at the Border'' initiative.\3\ This is
probably due to the fact that there are still a fair number of
inspectors who retain the specialized skills that they acquired as a
result of the previous structure. Once sufficient numbers of these
employees leave the agency, however, the shortcomings of the current
approach will become all too evident. These three areas of law are each
very complex and demand specialized training and experience. Providing
employees with small amounts of generalized training and experience in
all of these arcane fields will yield a generation of mediocre
employees who are incapable of the high level of performance that the
public expects and homeland security demands.
---------------------------------------------------------------------------
\2\ See Heritage Foundation and Center for Strategic and
International Studies, HDS 2.0: Rethinking the Department of Homeland
Security, December 13, 2004 and Department of Homeland Security Office
of Inspector General, Office of Inspections and Special Reviews, An
Assessment of the Proposal to Merge Customs and Border Protection with
Immigration and Customs Enforcement, November 2005.
\3\ Nonetheless, this issue has been the subject of at least one
critical study. See Migration Policy Institute, One Face at the Border:
Behind the Slogan, June 2005.
---------------------------------------------------------------------------
Far from being akin to a corporate merger, the consolidation of the
immigration, customs, and agriculture functions into the new Bureau of
Customs and Border Protection was much more analogous to a hostile
corporate takeover. The Immigration and Naturalization Service's well-
deserved reputation for ineptitude assured that its role would be
minimal during the transition and in the day-to-day administration of
the new bureau. This was unfortunate, as many of the employees working
at that agency were extremely knowledgeable, dedicated professionals
who could have helped ensure that the immigration enforcement aspects
were a high priority in the new Department. Sadly, this did not happen,
and our Nation is at great risk as a result.
Simply merging the Bureaus of Customs and Border Protection and
Immigration and Customs Enforcement will not fix the problems resulting
from their creation. In fact, it is likely that such a move would
exacerbate some of the existing problems. The new bureaucracy would in
all likelihood continue to be dominated by legacy Customs Service
managers, whose natural predilection will be to continue to emphasize
customs enforcement at the expense of immigration and agriculture
enforcement because they are much more familiar with customs laws and
regulation. In order to undo the harm caused by the Administration's
Reorganization Plan, it will be necessary to separate immigration and
customs enforcement in addition to eliminating the meaningless and
counter-productive geographic distinctions between border and interior
enforcement. Likewise, the enforcement of agriculture laws should
revert back to the control of the U.S. Department of Agriculture so
that specialized experts perform and oversee that function. All of
these areas of law are important, and in order for each of them to be
properly emphasized, separate structures need to be re-established.
There are understandable concerns that three separate law
enforcement entities would detract from the cooperation and
coordination that are so essential when employees are working side by
side. It is important to recognize that the historic competition
between these legacy agencies was largely due to the funding formula
that rewarded each agency based upon the number of seizures,
apprehensions and prosecutions that were independently undertaken (or
for which credit was claimed) instead of those resulting from
cooperative ventures. This flaw can be easily remedied by rewarding
cooperative efforts (where such efforts are feasible and appropriate)
rather than independent actions.
The structure of these enforcement branches of the importance of
their missions, it is essential that this not be treated as an
intellectual exercise, but rather as an urgent problem that needs to be
addressed as expeditiously as possible. It is equally important to
ensure that the proposed solution actually cure the identified
problems. To this end, the National Border Patrol Council strongly
recommends that the law enforcement bureaus within the Department of
Homeland Security be restructured along the lines of the statutes that
are being enforced. One bureau should be responsible for the
enforcement of immigration laws, one for customs laws, and another for
agriculture laws. Within each such bureau, a structure that supports
the accomplishment of the mission should be created. For example, the
immigration bureau structure should include a Border Patrol program, an
inspections program, an investigations program, an intelligence
program, and a detention and removal program. This would ensure that
all of the areas of law within the jurisdiction of the Department are
administered and enforced by specialists who are comprehensively
trained in a single discipline.
It must also be recognized that even a perfect organizational
structure will fail if it is not supported by adequate funding and
sufficient numbers of dedicated and experienced employees. All of these
matters are under the direct control or strong influence of Congress.
In addition to providing the necessary funding, it is important to
establish a working environment that is conducive to attracting and
retaining the best and brightest employees. The new ``human resources
management system'' being implemented throughout the Department will
have precisely the opposite effect. No one wants to work in an
organization where their voice is muzzled and they are not treated and
compensated fairly.
These goals can be quickly and easily attained through
administrative action. Further delays are inexcusable, as each day of
inaction leaves our Nation more vulnerable to additional terrorist
attacks.
Mr. Rogers. Thank you, Mr. Bonner.
The chair now recognizes Arthur Gordon, president of the
Federal Law Enforcement Officers Association, for your
statement. Welcome, Mr. Gordon.
STATEMENT OF ARTHUR GORDON
Mr. Gordon. Thank you. Chairman Rogers and Ranking Member
Meek and other members of the subcommittee, I want to thank you
for the opportunity to appear before you today to testify on
the issues facing ICE and CBP.
I am a full-time Federal agent. I am president of the
Federal Law Enforcement Officers Association. I am not part of
ICE or CBP, but I represent 24,000 Federal agents, 3,300 of
which are FLEOA members from ICE. I have repeatedly heard the
issues at hand for the past 2 years from membership. I have met
with Secretary Chertoff. I have met with Assistant Secretary
Garcia and Undersecretary Hutchinson as well, and we have
talked about the problems.
Secretary Chertoff has told me that he feels that he can
resolve the issues without a merger of ICE and CBP. Let me just
go over some of the things that we have gotten from our members
in terms of their complaints. And the complaints all center
around a disconnect between ICE and CBP. And if at the
headquarters level there are agreements or MOUs or directives
coming out, they are not coming down to the field.
There are current MOUs that were intended to dissolve some
of the red tape that don't. There is a database called TECS
which is primarily used by ICE, yet it is manned by CBP. ICE
and CBP do not know who is putting what into that database. ICE
makes entries. CBP doesn't, so a lot of times ICE cannot tell
if CBP is investigating the same target that they are. The
analogy has been made to the police patrol function and to the
detective units, and that is kind of similar to what our people
tell us all the time.
Prior to the formation of DHS, you had the uniform
division, and you had the investigators. The uniform division
at the border would have the initial leads, and the
investigators in ICE now would follow up on it. There is a
disconnect between having people in CBP get the information to
ICE to be followed up on. The flow of information just does not
seem to be there. We have been assured by the Secretary's
office and very recently by Julie Myers that that is going to
be corrected.
The same situation applies at the airports. ICE offices and
CBP offices were initially under Customs. They were co-located,
housed together, and they spoke to each other, and the uniform
people would make referrals to the investigators. We see this
as a problem at the airports, ICE and CBP in many cases don't
even talk to each other.
One of the suggestions that we have to offer, and our
people are kind of evenly divided as to whether a full blown
merger would fix the problem; 90 percent of our agents that
responded to our survey tell us they want some restructuring,
restructuring needs to be done to fix the problems. There has
got to be better coordination and communication between ICE and
CBP. They have suggested a possible task force approach, one
that Secretary Myers mentioned is the BEST task force; that is
a good example of a start. Task forces of ICE and CBP people
and analysts in other agencies seem to show promise. I have
seen other task forces. You mentioned HIDTA. You mentioned the
JTTF. They all bring resources and people together, and they
exchange information, and they talk. So that is one of the
suggestions that we would make as a possible alternative to a
full-blown merger of CBP and ICE, maybe some type of a better
task force approach. And I know that DHS is looking at this
right now.
You have my written testimony. The message I would like to
give you from our members is simple and clear, they ask that
you please do something to fix the problem.
On a positive note, I can tell you that I did speak to
Julie Myers on a couple of occasions very recently. We are
going to be meeting in the next couple of weeks. She feels very
positive that she can help fix a lot of the issues, and she
wants to work with us, and I think that is a very positive
sign.
So I would like to thank you for allowing me to speak on
behalf of the men and women of Federal Law Enforcement who are
part of FLEOA. Thank you.
[The statement of Mr. Gordon follows:]
Prepared Statement of Art Gordon
May 11, 2006
Chairman Rogers, Ranking Member Meek, and other members of the
Subcommittee, I want to thank you for the opportunity to appear before
you today, to testify about the need to resolve coordination and
communication issues between two important DHS agencies; Immigration
and Customs Enforcement, commonly referred to as ICE and Customs and
Border Protection, commonly referred to as CBP.
My name is Art Gordon and I am currently the National President of
the Federal Law Enforcement Officers Association (otherwise known as
FLEOA). FLEOA is the largest non-partisan professional association,
exclusively representing Federal law enforcement officers.
I am here today representing over 24,000 Federal agents from over
50 different agencies, including 3,300 special agents (criminal
investigators) who work for Immigration and Customs Enforcement (ICE)
within the Department of Homeland Security.
All FLEOA National Officers like me are full-time Federal law
enforcement officers who conduct FLEOA business on their own time. I am
currently a full-time Federal agent serving as an Assistant Federal
Security Director for Law Enforcement for the Transportation Security
Administration (TSA). I previously spent 29 years as a special agent
with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
before joining TSA in 2004. I am here today on annual leave,
representing the members of FLEOA.
In March of 2003, portions of the abolished Immigration and
Naturalization Service (INS) and the US Customs Service (USCS) were
combined into two separate agencies within DHS: US Immigration and
Customs Enforcement (ICE) and US Customs and Border Protection (CBP).
These are now the two agencies with primary responsibility for
immigration enforcement within the Department of Homeland Security.
It appears that the initial split of border and immigration
responsibilities between ICE and CBP during the formation of the
Department of Homeland Security was done without any compelling reason,
and it was determined that CBP would handle ``border enforcement'' and
ICE would handle ``interior enforcement''.
Over the past two years, we have received many complaints from our
members regarding the lack of communication and coordination between
ICE and CBP.
I have personally met with DHS Secretary Michael Chertoff, former
Under Secretary for Border and Transportation Security Asa Hutchinson
and former Assistant Secretary Michael Garcia from Immigration and
Customs Enforcement (ICE) on more than one occasion to voice our
member's concerns on this serious issue.
Secretary Chertoff has been very receptive to FLEOA and he has
assured us that he intends to resolve these problems. He has indicated
to FLEOA that the problems can be resolved without merging ICE and CBP.
In order for me and the rest of the FLEOA National Executive Board
to better understand the apparent disconnect between ICE and CBP, FLEOA
polled our 3,300 ICE special agent members on this issue.
I would like to share the results of our membership survey with you
today.
The following problems have been identified by our members:
1. The current Memorandums of Understanding (MOUs) that were
intended to dissolve the red tape between ICE and CBP have only
served to strengthen it. There are still complaints from ICE
agents regarding accessing certain database information that is
controlled by CBP. CBP currently controls the TECS (Treasury
Enforcement Communications System) database which stores
information on ICE case/investigative data. However, CBP does
not enter information into this database on their investigative
targets, so there is no way for ICE agents to tell if CBP has
an open investigation on one of their suspects. This results in
dual track investigations and duplication of effort, with
little or no coordination.
2. By separating the police/patrol functions from the
investigative component, which is the current case with
CBP(police/patrol component) and ICE (investigative component)
as separate agencies, it appears that DHS is slowly eroding the
ability of ICE agents to build quality informant networks and
follow-up on investigative leads developed at the border or
points of entry.
The criminal investigators within ICE should be able to
rely on timely referrals from the uniform component of CBP, but
unfortunately there is a disconnect between the two agencies.
It appears that CBP is currently attempting to become self-
sufficient in the investigative arena, eliminating any need to
work with ICE criminal investigators in the future.
3. The original division of Customs and Immigration Inspectors
from their related investigative colleagues (Customs special
agents and INS special agents) with the formation of ICE and
CBP, may be responsible for building administrative walls, lack
of cooperation and lack of information sharing between these
two agencies.
4. The flow of information from CBP(police/patrol component) to
ICE (investigative component) for investigative follow-up
within DHS is very limited and in some cases non-existent.
5. ICE and CBP have law enforcement personnel assigned to all
major international airports within the US, but in many cases,
there is no coordination or communication between the two
agencies, because of the separate chain of command, separate
management structure and separate priorities, policies and
procedures. However, there is significant overlap on the
functions they perform.
Many of our members have employed the police officer/detective
analogy to illustrate the need to get everyone under one roof. As all
of you know, in a police department the uniform patrol officer makes
the initial contact with the suspect or the crime and it is than
followed up by the investigative component, the detective division.
Currently with ICE and CBP as separate agencies, our members feel there
is a major disconnect between the police/patrol component (CBP) and the
investigative component (ICE).
It is important to integrate the talent of ICE and CBP law
enforcement personnel into cohesive investigative teams, while
maintaining the appropriate chain of command. Criminal investigators
should report up the chain of command to senior criminal investigators.
We would not advocate a merger that will result in ICE special agents
(1811 criminal investigators) reporting to CBP senior officials who do
not have any investigative experience.
Possible Alternative to Merger:
A Task Force concept comprised of ICE and CBP personnel in many
instances could be an alternative to a total merger of ICE and CBP into
one agency at this juncture. For example, a Smuggling Unit in ICE could
be comprised of ICE special agents, CBP Inspectors, CBP Patrol Officers
and intelligence analysts. However, we still run into the same issue of
two separate chains of command, two separate reporting systems, two
separate data bases and the question of will ICE or CBP run this task
force group.
We believe that the task force concept could be employed by ICE and
CBP for smuggling investigations, strategic investigations, fraud
investigations and sex crime investigations. The same concept could
also be applied at all international airports, where ICE and CBP could
be co-located and function as a task force, as US Customs previously
did prior to the formation of the Department of Homeland Security.
It should be noted that on April 20, 2006, DHS announced the
formation of a new Border Security Enforcement Task Force (BEST) in
Laredo, TX and one in Arizona. Additional BEST Task Forces will be
formed along the Southwest border. DHS also announced that ICE will
form Document and Benefit Fraud Task Forces in 10 major US cities this
year.
FLEOA believes that this is truly a step in the right direction by
DHS, in resolving these communication and coordination issues.
Recommendations:
In the event that a merger of ICE and CBP were to take place, we
recommend that this new entity be restructured as follows:
1. Services Division--Process immigrants who are attempting to
enter the country through legal means. Make referrals to the
Investigation Division as appropriate.
2. Patrol Division--Arrest and administratively process illegal
aliens at the US borders and inland.
3. Investigation Division--Handle all criminal investigative
matters. This component would include ICE special agents and
CBP senior inspectors (formerly called INS senior inspectors),
and intelligence analysts.
4. Detention and Removal Division--Handle all detention and
removal of all illegal or criminal aliens. This would include
the removal of criminal aliens from State or Federal prison
systems.
At this juncture, FLEOA believes that a restructuring at a minimum
within ICE and CBP is necessary, to fix the disconnect between the two
agencies.
If it is determined that the only way to resolve these issues is to
merge ICE and CBP, then FLEOA would support this merger.
The message from our members is simple and clear. Please fix these
problems now!
While the debate on the ICE/CBP merger continues, I call upon DHS
Secretary Michael Chertoff, Assistant Secretary Julie Myers (ICE) and
Commissioner Nominee Ralph Basham (CBP) to deal with the issues that I
have brought forward to this committee today.
My goal as FLEOA National President is to work with the
Administration and members of Congress to improve Federal law
enforcement. That is why I am here today.
Thank you for allowing me to speak on behalf of the men and women
of Federal law enforcement, who put their lives on the line every day
to keep our nation safe.
Mr. Rogers. I thank you, Mr. Gordon.
And the chair now recognizes Mr. Seth Stodder, senior
counsel of the law firm of Akin Gump Strauss Hauer & Feld, LLP.
Thank you for being with us, and we look forward to your
statement.
STATEMENT OF SETH STODDER, ESQUIRE
Mr. Stodder. Thank you, Mr. Chairman, and Ranking Member
Meek, and the other distinguished members of the subcommittee.
Thank you for inviting me to testify here today on the
important topic of whether the two sister agencies of DHS
focused on securing our border and enforcing our Immigration
Customs laws, CBP and ICE, should be consolidated into a single
border Immigration and Customs enforcement agency within DHS.
I am currently a lawyer at Akin Gump, but before that, I
served at DHS as the director of policy and planning at CBP.
Since leaving government, I have remained active in the
homeland security policy arena in various forms. And the most
relevant to this hearing I served on the CSIS Heritage
Foundation Task Force that drafted the DHS 2.0 report, which
recommended significant reorganizations of DHS.
In the Second Stage Review, Secretary Chertoff accepted
many of the organizational recommendations of the DHS 2.0
report, but one DHS 2.0 recommendation not adopted by the
secretary was our proposal that CBP and ICE be merged into a
single agency devoted to securing our borders and to enforcing
our Immigration and Customs laws. I continue to stand by the
recommendation that we made in the DHS 2.0 report.
In my view, the original decision to dismantle Customs and
INS and then reconstitute them into CBP and ICE was a mistake.
For many years, experts have recognized that the fragmentation
of border security responsibility between INS and Customs was a
bad idea, and that it had led to waste, duplication, lack of
coordination on policy, strategy and operations, stovepiping of
information, turf warfare, overall dysfunction, and other
parades of horribles.
The creation of DHS was supposed to fix this problem and
consolidate border responsibility and accountability; instead,
though, we took the harder path of breaking up two existing and
competing agencies with overlapping responsibilities and then
creating two new ones with different overlapping and competing
responsibilities. We now have yet again two border agencies,
and on top of that, we have also now split responsibility for
Immigration and Customs Enforcement, which wasn't the case
before.
On the up side, at least these two agencies are in one
Cabinet department, DHS, unlike INS and Customs were, and we
have to give DHS credit; it has worked extremely hard to make
due with a difficult hand. DHS has been making significant
strides in better securing our border and enforcing our
Immigration and Customs laws, and it is muddling through and
coordinating or babysitting the two competing border agencies
in Immigration and Customs enforcement agencies, but it didn't
have to be this hard. And speaking from experience, it was
hard.
In fixing the previous horizontal Customs-versus-
Immigration split, we created a new vertical fragmentation,
separating the patrol and interdiction functions of border,
Immigration and Customs enforcement from the investigation and
alien processing functions. So in other words, we decided to
simultaneously conduct a divorce by breaking up Customs and INS
as well as conduct a merger by re-combining these pieces of the
former agencies into CBP and ICE and then integrating them into
cohesive wholes.
And this divorce took countless hours of management time of
DHS, CBP and ICE. And over years of acrimonious what I would
say divorce negotiations for which agency gets what, splitting
up budgets, wrenching change, and then on top of that, we also
merged and created One Face At the Border and merged
investigations within ICE. And to what end no one is quite
sure. It is telling that last year's DHS IG report on whether
CBP and ICE should be merged noted that the rationale of
splitting of the agencies was difficult to discern. And the
problems with the split are pretty well documented, don't
require large-scale rehashing here. I submitted my written
testimony, and that can be, hopefully, put into the record.
But the issue that is presented before this committee right
now is not so much rehashing the mistake of 2003--and I think,
as Acting Commissioner Spero reflected, if this were 2003, it
would be an easy call, the agencies should be merged. I think,
in 2006, it is a harder call, but I still maintain the
recommendation that we should be merging the agencies.
And it is interesting, DHS has really not defended the
decision to split the agencies on merits; it is really focused
now on the 2006 problem, which is, is it more difficult to put
it back together? Are we going to be creating, as Deputy
Assistant Secretary Jackson would say, organizational churn?
And I would say, in the remaining time that I have here, the
issue is, yes, there will be organizational churn if you have a
merger of the agencies, but it will be far less than the
organizational churn that you had in 2003 in the sense that the
two biggest issues in 2003 were the divorce of Customs and INS
which created enormous dysfunction and wasted lots of time. And
then the second difficult issue of 2003 was the merger,
creating One Face At the Border within CBP, merging the Office
of Investigations within ICE. Those tasks are done, and so the
organizational churn that would be involved in remerging the
agencies would be far less complicated. It wouldn't be
uncomplicated. There would certainly be some complication, but
it would be far less complicated than it was in 2003. And I
think the upside benefits of merging the agencies, in terms of
solving some of the organizational and policy and operational
confusion problems and dysfunctions, would be worth the effort
because ultimately DHS has better things to think about
ultimately than babysitting its overlapping border, Immigration
enforcement agencies. An agency head should be dealing with
these issues, like the head of the Coast Guard does and other
agencies; DHS should not be doing that.
With that, any questions you might have, I would be happy
to address any questions. Thank you.
[The statement of Mr. Stodder follows:]
Prepared Statement of Seth Stodder
May 11, 2006
Chairman Rogers, Ranking Member Meek, and Members of the
Subcommittee:
Thank you for inviting me to testify here today on the important
topic of whether the two sister agencies of the Department of Homeland
Security (DHS) focused on securing our borders and enforcing our
immigration and customs laws--U.S. Customs and Border Protection (CBP)
and U.S. Immigration and Customs Enforcement (ICE)--should be
consolidated into a single border, immigration, and customs enforcement
agency within DHS.
I am currently a lawyer in private practice at Akin Gump Strauss
Hauer & Feld LLP in Los Angeles, but prior to that, I served in the
Department of Homeland Security as the Director of Policy and Planning
at U.S. Customs and Border Protection, as well as Counselor/Senior
Policy Advisor to then Commissioner Robert C. Bonner. I served in a
similar position with Commissioner Bonner at the U.S. Customs Service,
prior to the creation of DHS and CBP. Since leaving government, I have
remained active in the homeland security policy arena through work with
the Center for Strategic and International Studies (CSIS), the George
Washington University Homeland Security Policy Institute (HSPI), and
other activity. Of most relevance to this hearing, I served on the
CSIS-Heritage Foundation Task Force that drafted the ``DHS 2.0''
report, recommending a significant reorganization of DHS. In his Second
Stage Review (2SR), Secretary Chertoff accepted many of the
organizational recommendations of the ``DHS 2.0'' report. One ``DHS
2.0'' recommendation not adopted by Secretary, however, was our
recommendation that CBP and ICE merged into a single agency devoted to
securing our borders, and enforcing our immigration and customs laws.
I continue to stand by the recommendation made by the ``DHS 2.0''
report. In my view, the split of CBP and ICE was a mistake that, in the
supposed interests of breaking down the stovepipes and duplications
that made the relationship between the two pre-DHS border agencies--INS
and Customs--so dysfunctional, created new ones that did not exist
before and never needed to exist. We now have--yet again--two border
agencies, and have--yet again--stovepiped and fragmented the
interrelated pieces of border, immigration, and customs enforcement
into two competing and turf protective agencies. While DHS, CBP, and
ICE have certainly made significant progress in better securing our
borders and enforcing our immigration and customs laws, I believe the
current organizational structure interferes with DHS from accomplishing
all that it could in this area.
How did we get here? Honestly, I have no idea. Literally since the
Hoover Administration, experts had produced numerous reports arguing
that the separation of the twin border functions of immigration and
customs into two separate agencies--INS and Customs--in two separate
cabinet departments--Justice and Treasury--had led to needless
dysfunction, duplication, and turf warfare. The examples of this are
well worn, but a few are worth repeating--the separate and duplicate
management structures for the immigration and customs inspectors
working side-by-side at our ports of entry, the stories of Border
Patrol Agents and Customs Special Agents drawing guns on each other on
conflicting and uncoordinated enforcement operations, the separate INS
and Customs air forces both performing border enforcement functions but
not coordinating, among other choice tales. Over the years, the
government had missed various opportunities to fix this problem, coming
closest in 1973, when the merger of customs and immigration was
proposed and some Customs Special Agents were split off as part of the
creation of the Drug Enforcement Administration (DEA).
With the creation of DHS and the public momentum behind
strengthening our border security post 9/11, the golden opportunity
finally arose to make this ``good government'' reform and consolidate
our border security, immigration, and customs enforcement agencies. At
the same time, the creation of DHS presented the opportunity to make
good on a Presidential promise to split the services functions of the
old INS away from the enforcement side, to create a separate agency
devoted to citizenship and immigration services.
Unfortunately, in making this ``good government'' reform, we
bobbled the ball. Instead of doing the simple thing and simply
consolidating the U.S. Customs Service with the enforcement side of the
INS, we embraced complexity and made our lives more difficult.
Violating the so-called ``KISS'' principle, we decided to consolidate
border, immigration, and customs issues by fragmenting responsibility
and accountability for them into not two but now three agencies--CBP,
ICE, and CIS.
Fixing the previous ``horizontal'' customs versus immigration
split, we created a new ``vertical'' fragmentation--separating the
patrol and interdiction functions of border, immigration, and customs
enforcement from the investigation and alien processing functions. So,
in other words, we decided to simultaneously conduct a ``divorce'' by
breaking up Customs and INS, as well as conduct a merger by re-
combining the shards of these former agencies into CBP and ICE, and
integrating legacy customs, immigration, and agriculture enforcement
operations into not one but two agencies.
For good measure, we also complicated the border intelligence
functions, international operations, mission support, and integrity
functions--splitting them haphazardly and painfully between CBP and
ICE. (Indeed, for a time, even the air and marine interdiction
operations were split between CBP and ICE, with the legacy Border
Patrol assets going to CBP and the legacy Customs assets going to ICE,
with little operational coordination--even though both had overlapping
border interdiction missions. Thankfully, after more than a year of
considering this elementary problem, DHS consolidated these functions
and assets into one of the border agencies, CBP.)
This ``divorce'' process of splitting up Customs and INS and
recombining them into CBP and ICE took countless hours of DHS, CBP, and
ICE management time, over a year of acrimonious ``divorce''
negotiations over which agency gets what, complicated processes of
splitting up budgets, wrenching change as legacy Customs Special Agents
were forced to adopt legacy INS systems and vice versa, and the
creation of duplicate mission support bureaucracies. In short, the
splitting of INS and Customs and their recombination into CBP, ICE, and
CIS created no end of management headache, and greatly complicated the
first years of DHS--including the process of merging legacy
immigration, customs, and agriculture enforcement functions into
cohesive operational units within what became CBP and ICE.
And to what end? Still, no one is quite sure. It is telling that
last year's DHS Inspector General report on whether CBP and ICE should
be merged noted that the rationale for splitting the border agencies in
the first place was ``difficult to discern.'' Indeed, just as it would
be ``difficult to discern'' a rationale for splitting the New York
Police Department into a ``Patrol Bureau'' and a ``Detectives Bureau''
with overlapping and inextricably interdependent responsibilities for
the same crimes but different management structures and chains of
command, it is also ``difficult to discern why we would split
overlapping and inextricably interrelated border, immigration, and
customs enforcement responsibilities into a ``Border, Immigration, and
Customs Interdiction, Patrol, and Enforcement Bureau'' and a ``Border,
Immigration, and Customs Investigations, Detention and Removal, and
Student Visa Processing Enforcement, Among Other Things, Bureau.''
The problems with such a split of overlapping border, immigration,
and customs enforcement responsibilities are well documented and don't
require large-scale rehashing here. The ``divorce year'' problems of
2003-2004, discussed previously, are ``water over the dam''--those
countless hours of DHS management time (and accompanying distractions
from work on the substantive homeland security mission) figuring out
how to split up Customs and INS (including their assets, budgets,
missions, legal jurisdictions, and personnel) and recombine them into
CBP, ICE, and CIS cannot be retrieved. But the operational and
practical problems continue. In summary form (again, avoiding rehashing
well-trod ground), they include:
1. The fragmentation of inextricably interrelated border,
immigration, and customs interdiction and patrol functions from border,
immigration, and customs investigations.1 Just as NYPD detectives
depend on leads from NYPD patrol cops, many (if not most) border,
immigration, and customs enforcement investigations start with an
interdiction, an arrest by a Border Patrol Agent or Inspector, or some
other similar lead from the frontline. And, conversely, effective
interdiction efforts depend on the intelligence and targeting
information drawn from those investigations. This is the ``feedback
loop'' that, over the decades, has been such a critical feature of
effective border, immigration, and customs enforcement. This is true,
even with regard to so-called ``interior'' immigration enforcement--
given that all illegal migrants had a path here that led through a
border or port of entry and many got here with the help of an alien
smuggling organization that delivered them across the border. Given
this, why would one put these inextricably interrelated functions into
two different agencies, with different operational, budgetary,
enforcement, and policy priorities, and with only a thin layer of
Department-level (i.e., not field level) coordination? Last year's
Inspector General report documents the predictable result of this
split, with numerous anecdotes of missed handoffs, turf warfare, and a
general lack of coordination in the field and at headquarters.
2. The split of border and immigration apprehensions from alien
detention and removal functions. By most estimates, approximately 90%
of the aliens detained and removed by the legacy INS Office of
Detention and Removal Operations are apprehended by the Border Patrol
and frontline inspectors at the Ports of Entry. Given this, why would
one put the apprehensions side of border/immigration enforcement in one
agency with one set of policy, budgetary, and enforcement priorities,
while putting the detention/removal side of border/immigration
enforcement in another one with different such priorities, again with
only a thin layer of Department-level (i.e., not field level)
coordination? Last year's Inspector General report documents the
predictable result of this split, in terms of mismatches of resources
and priorities--the quintessential example being the OTM release issue.
3. The division of intelligence functions. It goes without saying
that both border/immigration/customs investigators and border/
immigration/customs patrol and inspections officers need intelligence
concerning potential border, immigration, and customs violations. And,
given the ``feedback loop'' discussed previously, it would be ideal for
that intelligence resource to be common to both the patrol/inspections
side and the investigations side of border/immigration/customs
enforcement. Given this, why would one break the intelligence function
into two pieces and put the fragments into two separate agencies?
4. The division of international operations. By definition, border,
immigration, and customs enforcement has an international dimension. On
the interdiction side, this is demonstrated by the Container Security
Initiative (CSI), pre-clearance operations in Canada, the CBP
deployments at Schipol Airport in Amsterdam, and Border Patrol efforts
with Mexico, among other things. On the investigations side, all border
smuggling investigations by definition have an international component.
In the legacy Customs Service, the foreign ``attache'' corps served
both the interdiction and investigations sides of the house--
coordinating foreign smuggling investigations and negotiating the CSI
agreements with foreign governments. With the split of CBP and ICE,
however, the legacy Customs attaches (all of whom were Special Agent
investigators by background) were transferred to ICE, leaving the CBP
operators overseas--including the CSI teams operating in 42 ports
around the world--without effective representation at the U.S.
Embassies. CBP is now having to rebuild its attache corps, now with
attaches in Mexico City and Ottawa.
5. The split effectively destroyed the legacy Customs Internal
Affairs Office. One unintended by-product of the split was the
destruction of the legacy Customs Office of Internal Affairs--which,
when it was re-tooled in the late 1990s, dramatically reduced the
serious corruption problems that had plagued Customs. This successful
program was split along with CBP and ICE, and fundamentally was
destroyed--for little reason.
These are just an assortment of the areas in which the dismantling
of INS and Customs and their re-combination into CBP and ICE caused
predictable problems, waste, and dysfunction. Adding these points to
the hours of DHS, CBP, and ICE management time wasted managing the
``divorce'' of the agencies in 2003-2004--rather than focusing on
substantive homeland security issues--places a heavy burden of proof
upon those who contend the split was in fact a good idea. Given that
even the Inspector General found the rationale for the split and all of
its disruptions to be ``difficult to discern,'' it is hard to see how
split proponents can justify why they made such a disruptive and
destructive decision.
Concluding that the original split of INS and Customs and their
reconstitution into CBP and ICE was a mistake does not answer the
question posed by this Committee, however. The reality is that the
split has happened, and CBP and ICE currently exist. The question now
becomes whether it is worth the effort to undo the organizational
mistake made a few years ago.
The Department of Homeland Security has clearly concluded that it
is not. Tellingly, DHS does not defend the original decision to split
Customs and INS and re-combine them into CBP and ICE. Deputy Secretary
Jackson's letter responding to the Inspector General's report of last
year does not defend the original decision. Nor did Assistant Secretary
Baker's testimony of last year. Rather, the apparent DHS rationale for
not merging CBP and ICE appears to be that it is too late to unbreak
the eggs and that the omelet has already been made. In Deputy Secretary
Jackson's words, a merger of CBP and ICE would ``yield a protracted
period of organizational churn, thus undermining operational
effectiveness at CBP, ICE, and the Department at large.''
I can certainly sympathize with Deputy Secretary Jackson's comment.
I lived through the first period of ``organizational churn'' when DHS
made the decision to break up Customs and INS and re-combine them into
CBP and ICE.
And it may indeed be true that the benefits associated with
creating a single border, immigration, and enforcement agency might not
be worth the ``organizational churn'' associated with combining two
currently existing agencies, CBP and ICE. In some sense, DHS might
simply have ``bigger fish to fry,'' as it works on strengthening FEMA,
addresses port security issues, and endeavors to strengthen border and
immigration enforcement through the Secure Border Initiative, among
other things. It may be that the window for organizational tinkering
has closed--even to correct obvious mistakes, such as the CBP-ICE
split--and it is time to focus on the substance of homeland security
and strengthening obvious organizational basket-cases like FEMA. In the
meantime, DHS can muddle through with the dysfunctions of having CBP
and ICE be separate agencies through coordination mechanisms and a
stronger policy apparatus. And we must give significant credit to
Secretary Chertoff, Deputy Secretary Jackson, and to the leaders of ICE
and CBP for all the great strides they have made.
Maybe at this point it is better to leave well enough alone, and
let DHS do its substantive work without the distractions involved with
further organizational change.
I don't think so, however. In fact, I think now is exactly the time
to correct the mistake, merge CBP and ICE, and fulfill the longstanding
goal of establishing a single border, immigration, and customs
enforcement agency. The reality is that the longer we wait to correct
this mistake, the more entrenched the CBP and ICE bureaucracies will
become, and the more painful it will be to create a single agency. As
we discussed in the ``DHS 2.0'' report, this is the lesson of the
Department of Defense. DoD muddled through and bowed to service
parochialism for almost 40 years from 1947 to Goldwater-Nichols in
1986, when it finally reorganized the armed forces to make our military
more effective.
The lesson of DoD is clear. Fix organizational problems at the
beginning, or conceivably be doomed to live with them for decades--as
with each year, the change becomes harder and harder to accomplish and
the transaction costs rise. The reality is that DHS is still young, and
the cement within the Department is not yet dry. The War on Terror will
be with us for decades, and DHS will be with us for far longer. DHS
needs to be organized for the long term, and not simply in order to
avoid the costs associated with correcting dysfunctional organizational
structures--especially if those dysfunctions were self-inflicted.
Moreover, the ``organizational churn'' associated with merging CBP
and ICE--while not insignificant, surely--would not nearly rise to the
level of ``organizational churn'' that accompanied the original
decision in 2003 to shatter Customs and INS and re-constitute them as
CBP and ICE. Indeed, much of the ``organizational churn'' in 2003 and
2004 had to do with the ``divorce'' proceedings associated with the
dismantling of INS and Customs--the ``who gets what,'' and how to split
up and re-constitute mission support bureaucracies. A CBP-ICE merger
would not have any of those complications or traumas. Indeed, a CBP-ICE
merger would simply add additional direct reports to the head of the
consolidated border/immigration/customs enforcement agency--as all the
interrelated operational elements of border, immigration, enforcement
elements (i.e., investigations, intelligence, patrol, inspections,
detention/removal, air/marine operations, and international affairs)
would all be under one roof and under one operational chain of command.
This ``churn'' would be far more manageable than the miserable
``churn'' that associated the initial mistaken decision to dismantle
existing agencies.
Furthermore, much of the pain associated with the ``merger'' piece
of creating CBP and ICE--as opposed to the ``divorce'' associated with
dismantling Customs and INS--primarily arose out of the need to
integrate legacy customs, immigration, and agriculture functions into
single operational chains of command. This has now been done. CBP has
created ``Once Face at the Border,'' as legacy immigration, customs,
and agriculture inspectors have all be integrated into a single CBP
inspectional force. ICE has integrated legacy customs and immigration
Special Agents into a single Office of Investigations. Many other
integrations have been accomplished by the ICE and CBP leadership. In
merging CBP and ICE, this integration of legacy functions would not
need to be done again. Instead, the integrated Office of Investigations
would simply co-exist with the integrated Office of Field Operations in
a unified border, immigration, and customs enforcement agency, under a
single chain of command to the agency head.
In addition, bringing CBP and ICE together under one agency head
would simplify the Departmental task--as DHS leaders would no longer
need to waste their time ``coordinating'' the obviously interrelated
operational functions of border, immigration, and customs enforcement.
An operational agency head would do this, assisted by a firm chain of
command down to the field, and that operational agency head would be
held accountable for failure by the President and the Secretary. DHS
would no longer need to mediate disputes between CBP and ICE on mission
support or budget issues. An agency head would deal with these issues
for the unitary border, immigration, and customs enforcement agency--
and the President and the Secretary would hold him or her accountable
for failure. The DHS leadership has far better things to do than baby-
sit the two often warring border, immigration, and customs enforcement
agencies.
In short, the merger of CBP and ICE would bring significant
benefits, and achieve a long-sought reform--creating a single border,
immigration, and customs enforcement agency. And the costs in
``organizational churn'' identified by DHS are greatly overstated and,
in any event, will be inevitable whenever CBP and ICE are ultimately
merged. In short, this is a good government reform and there is no time
like the present.
Thank you again, Mr. Chairman, Ranking Member Meek, and members of
the Subcommittee for holding this hearing and inviting me to
participate. I look forward to answering any questions you might have.
Mr. Rogers. And I thank you.
I would like to start with you on my questions. You heard--
I think you were present for the first panel, weren't you?
Mr. Stodder. Yes.
Mr. Rogers. When you heard Ms. Meyers and Ms. Spero talk
about the fact that they seem to have worked through their
difficulties, and while they are still encountering some
organizational struggles, they felt--my impression is they felt
like they have gotten through the rest of it, and that it would
be far more damaging for them to try to go through this
organizational churn--a phrase that Secretary Jackson has used.
Why do you disagree with their logic? I tried to follow you and
your statement, and I really don't. Why is that logic flawed?
Mr. Stodder. Well, I think there are two issues there. I
think the issue of, are things getting better between CBP and
ICE? And I think the answer to that is probably, A, it is too
soon to tell in terms of the coordination mechanisms that have
been put in place over the last year at the DHS level, and then
somewhat at the field level. And maybe it is too soon to tell,
but I guess my sense of that is, it is always going to be a
second best solution to have DHS at the departmental level from
Washington trying to coordinate two agencies that have
overlapping jurisdictions, have significant interrelationships,
inextricable interrelationships between the patrol functions
and the interdiction functions and the investigative functions,
between the detention and removal functions and the patrol
functions, et cetera, let alone the international issues which
are even more complicated and still haven't really been
resolved ultimately. I think it is far more preferable to have
that be taken down a notch and further into the operational
agency. And ultimately the better coordination mechanisms have
to be done at the field, with a strong chain of command in the
field. So that is on the positive side in terms of why I still
think a merger is the best course.
On the issue of organizational churn, certainly that would
be a cost, and that is something that--that issue is why I
think, in 2006, it is a tougher call in terms of what the right
course is at this point versus 2003. But I think, even so, I
think the organizational churn is something that can be dealt
with. It is not as bad as its organizational churn was in 2003
because are not going to have to divorce agencies, you are not
going to have to merge competing cultures of Customs,
Immigration and in CBP's case, agriculture into two particular
chains of command. You can still have an office of
investigation, et cetera, within a unified agency, but you
would have a stronger structure to deal with the conflicts that
could arise within that agency in the same way that you have an
agency structure that could deal with conflicts that arise
within the Coast Guard or within the old Customs Service or the
old INS.
Mr. Rogers. If the merger were to take place, in your view,
at what point in time do you think we would see an easing of
the churning activity and the organization smoothly running?
Mr. Stodder. Well, I think that would be dependent on what
type of a merger you would see in terms of what--I mean, you
could do things--I mean, one of the issues that you would see
is that there are different field structures for the Office of
Investigations, detention removal, Border Patrol and the Office
of Field Operations, and the question is, would you want to
merge those field structures completely and co-locate them? I
think that would be more difficult certainly. But I think there
would be ways of going about the merger that would not be as
difficult.
And the other thing is that you would realize some synergy
in the mission support area because certainly a lot of the
fight in the 2003-2004 period was on how to split apart, to the
extent that you wanted to split apart, some of the mission
support areas in terms of who does what, personnel. And we
tried to muddle our way through things like shared services and
tri-border, tri-agency agreements with CIS and other things.
But ultimately, if you had a single agency that actually had an
agency head that could be held accountable for failure in all
those areas, I think you would have a more effective border,
immigrations, Customs enforcement.
Mr. Rogers. Thinking about that statement, you heard
earlier Ms. Sp ero say that she felt like we had finally right-
sized CBP and ICE as far as an organizational structure. So I
take it, from what you just said, you disagree.
Mr. Stodder. I disagree with that. CBP is about 44,000
people right now, I think ICE is about 18 or 20,000. You would
have a significant agency in the 60,000 range. But I think
ultimately the issue is not size, the issue is function, and
the issue is, how do you forge the interrelationships of
border, Customs and Immigration enforcement together. And so
the question of whether it is a 60,000 person or 65,000 person
agency versus 18,000 or 42,000, that is not the issue. I think
the issue is strong leadership, strong chains of command to
forge interrelationships.
Mr. Rogers. I thank you. My time has expired.
The Chair now recognizes the ranking member, Mr. Meek, for
any questions me might have.
Mr. Meek. Thank you very much, gentlemen, for being a part
of the second panel. And I apologize for the long vote, but
that is above our pay grade.
Well, this is quite interesting because I am hearing a
number of things. I am hearing that it would be good if we
could merge the department. I am hearing that maybe a merge is
not the best thing. And I am hearing even mixed reviews from
the men and women in the field that are not sure, but they want
something to happen more than what is happening now.
I would assume if it came down to Border Protection and
investigation and streamlining the whole process, that being
under one roof versus several roofs would be more efficient and
would work better.
Mr. Gordon, if you could talk a little bit about the
airport experience and also maybe talk about the different
areas where the men and women in uniform or out of uniform,
those investigators, have said where they are having some real
issues as it relates to the efficiency of the agency, because
that is what this really is boiling down to. When I asked a
question of Assistant Secretary Myers about how this
coordinating council, how is it really working, is it--do we
have any frontline input on what actually happens on the
ground? And that answer was, well, we have the folks that are
in position that can make the decisions to make sure that those
issues are addressed. And I think that that is where the rubber
meets the road in this whole debate. The department is trying
to quench the Inspector General's report, quench the thirst of
the Inspector General's report of those three areas--and I
don't know I need to read them again--that they found were
major issues that weakened our border security. So if you could
give me some insight on some of the frontline folks, what they
are saying, some of the--you identified some things that were a
problem or still is a problem, identify what happens every day
because we don't have this merger, and where we get confused in
translation here.
Mr. Gordon. Basically, prior to the formation of DHS, you
had Customs agents and inspectors at the airport. The
inspectors were the uniform people, and when they came across a
crime or some information or something that needed to be
investigated, it was referred to the Office of Investigations
special agents.
What I am told now is you have CBP at the airports and you
have ICE at the airports, and they are, in many cases, not co-
located anymore. They have separate chains of command, separate
priorities. They have separate structures. So, in many cases,
they don't speak to each other, and that is a significant
problem. Now we are being told, I was told earlier today, that
is being addressed at the highest levels to force CBP to make
all referrals to ICE, but there are MOUs out there--for
instance, as I understand, there is a MOU that Border
Protection has from DOJ days where it makes referrals to DEA.
Well, Border Patrol is part of CBP. They are part of DHS. They
should be making referrals to ICE, which is the investigative
arm of DHS.
Mr. Meek. Mr. Gordon, did you raise that with Secretary
Chertoff when you--was that one of the issues you raised when
you met with him?
Mr. Gordon. That was one of the issues I raised. In fact, a
member of his staff was here today and told me that he is
coming out in writing as we speak to resolve that issue from
the headquarters level. The issue becomes--I don't know that it
is going to get down to the field, and that is what they have
to do, is get this down to the field level. The agent, the
uniform people and the investigators have to start working
together. They have to start talking. They have to start
communicating, and that is our main concern.
Mr. Meek. Well, do you have a copy of any correspondence
that you sent to the Secretary outlining these concerns?
Mr. Gordon. Not with me, but I do, I can send them.
Mr. Meek. Our record will be open. And if we could, Mr.
Chairman, have unanimous consent to enter that letter into the
record.
And Mr. Bonner, I just want to--you mentioned something
about it may not be good to merge these two agencies, but maybe
there could be some tweaking to be able to make--to reach our
objective of border security and communications at the same
time.
Mr. Bonner. Actually, what I was suggesting is you blow up
the two existing agencies, ICE and CBP, and you revert back to
the original intent of the Homeland Security Act, that you
create a separate agency that is in charge of Customs, a
separate one for Immigrations Enforcement, a separate one for
agriculture. All three of these areas are extremely complex,
and it is impractical and unrealistic to think that a single
employee can become expert in all of those areas. Plus your
leadership is going to--it is only natural that one of those
functions is going to emerge at the top, and in this case, it
was the Customs Service because INS was so mismanaged, it was
natural that the larger Customs agency, which was much better
funded and much more highly regarded, would emerge as the
victor in this power struggle, and they did. And the emphasis
is primarily on Customs matters, which is not the sole focus of
these two agencies. The focus needs to be on Immigration,
Customs and agriculture.
And so what I am suggesting is a reorganization, not a
merger of the two existing ones, but rather a reorganization so
that we have more clear lines of authority based upon the
statutes that these employees are enforcing.
Mr. Meek. So are you advocating three agencies?
Mr. Bonner. Yes, I am, which was the intent of the Homeland
Security Act. I went back and read it, and I was kind of
surprised that Congress--I am not surprised that Congress got
it right; don't misinterpret me. I was surprised that that was
the structure that was called for because all of the debate had
been swirling around, well, is it ICE, is it CBP, should we
merge them? And then when I went back and looked at the
statute, it was very clear that it was laid out in that manner.
And it was an afterthought that they came up with ICE and CBP.
And it made no sense at that time to divide it along geographic
lines as if there is somehow a distinction between border
enforcement and interior enforcement; there is clearly not. And
the coordination and cooperation has suffered greatly as a
result of this structure that we have now. And what we have
seen is an evolution. Border Protection is now developing its
own anti-smuggling capabilities, they are not calling them
criminal investigators, but they are handling more and more of
these cases through disrupt units and units that they call
other things because the system isn't working. When you have
two separate agencies and you have to jump through all these
bureaucratic hoops, it makes it impossible to get things done,
so people figure out a way to work around the system.
Mr. Meek. Mr. Chairman, I just want to ask your indulgence
for a few more questions here.
You mentioned something also that it may not--DHS, the
Department of Homeland Security, has this ability to
restructure or make it one agency or make it three agencies.
They have the statutory authority to do that now without us
doing anything?
Mr. Bonner. It is my understanding that the President
retains the authority to offer another reorganization plan to
the Congress of the United States, and I believe that it lays
on the desk of Congress for 60 days before it would become
effective, but, yes, I believe he still retains that authority
under the Homeland Security Act.
Mr. Meek. Okay. If I can, Mr. Stodder, I just want to--you
mentioned something I thought that was very unique, and then I
am going to yield to the chairman.
You mentioned that it won't be as painful--
Mr. Stodder. Right.
Mr. Meek. To merge these agencies together so that they can
communicate.
Mr. Stodder. Right.
Mr. Meek. You wrote, and it was a part of the 2.0 report
that--actually, this is your second time before this committee.
Hopefully you won't have a third and fourth experience. We
won't continue to talk through this, because as the Nation
debates this issue of border security, A, we have to have the
right personnel in the field playing in the right positions to
be able to be successful, and I know I am using this metaphor,
but I hear a lot of meetings and organizing, and we are talking
to John and John is talking to us, and then we have to meet
again about what John said; I mean, a lot of that is going on.
Meanwhile, back at the, ranch, are we investigating these cases
and prosecuting these cases in the way that they should be
prosecuted? And are we protecting our borders, what we should
have been doing from the beginning versus the inside baseball?
I hear the reluctance from the first panel. We don't need to do
that. As a matter of fact, one of the gentlemen--I cannot
remember his name right now, it escapes me--but he says, his
words were that we needed to stay the course regardless of the
fact that we have these problems and these issues have been
brought about--Mr. Baker said we need to stay the course. I
want you to talk a little bit about staying the course on what
we have right now and the way you see this thing coming to a
head eventually as it relates to prosecutions, as it relates to
the efficiency of the Department, and then I will yield back to
the chairman. There is only two of us here today.
Mr. Stodder. Okay. What Assistant Secretary Baker said or
has said about staying the course, I mean, that is a compelling
argument in the sense of, at some point, to continue with the
sports analogy here, at some point, it may be wise to blow the
whistle and say, stop any further organizational tinkering and
move on with substance and get the job done. My view on that
is, we are not there yet. I mean, we have to be thinking about
the Department of Homeland Security for the long haul. The war
on terror is going to go on for a long, long time, and even
after al Qaeda is completely destroyed, we will have a need for
a Department of Homeland Security.
And I think that--so in that sense, I mean, we are 3 years
into the Department, it is still young, it is still--the cement
is not yet dry. And I think that part of the reason why CBP and
ICE are muddling through, and I think are still effective to
some degree--I mean, they are still effective because of the
personal relationships that are still out there in the field
among people who served in the Customs Service or served in INS
together, some of the field--some of the directors for field
operations for CBP on the inspection side or some of the SACs
on the Office of Investigations or some of the Border Patrol,
they know each other from the days within their legacy
agencies, and so I think that some of the things are still
moving because of that. But I think, as time goes on, those
people will retire, and I think that the CBP and ICE
bureaucracies will become more entrenched, and I think it will
be more difficult to merge the agencies.
So my sense is, while I sympathize with Stewart Baker's
views on staying the course, because of the concern about
organizational churn, as Deputy Secretary Jackson has so
eloquently said, I do think that if you are going to merge the
agencies and you are going to create a single agency to enforce
Border Security, Immigration and Customs, all of those
interrelated functions, now is the time to do it. I don't know
if that answers your question, Ranking Member Meek.
Mr. Meek. It does. I know what you are saying, that is it
is important that we stay the course in the overall global
issue of dealing with this, but now is the best time since we
have an open book on how we protect our border, that is what I
hear you saying.
Mr. Stodder. Right. I mean, I think it is important to stay
the course. It is a factor to consider. But I think the
countervailing factors of making our border, Immigration,
Customs Enforcement more effective and more efficient
ultimately, I think are countervailing factors right now. And I
think if you ask me 10 years from now, maybe not, but right
now, the cement is sufficiently still wet that we could
actually do a merger and limit the amount of organizational
churn that would hinder our effectiveness during that merger
period.
Mr. Meek. I thank you. I yield back.
Mr. Rogers. I thank the gentleman.
I would like to ask you, Mr. Gordon, you stated in your
opening statement that you believe that a merger is not the
answer. And you talked about the flow of information, and you
felt like some of the things that are taking place now, and it
could be done short of merger, would remedy the flow of
information problems that currently exist. Is that an accurate
characterization of your view?
Mr. Gordon. My view is that our people in our survey, the
Federal agents out there are kind of evenly divided on whether
the merger is the appropriate answer. I think they are afraid
of the organizational churn, the turmoil again of going through
what happened 3 years ago when the agencies were torn apart and
then put back together. So I think it is kind of a fear of the
unknown.
Mr. Rogers. So is it accurate to say, then, that your
position today then is not that you are advocating merger?
Mr. Gordon. I would say that is accurate at this time, yes,
sir.
Mr. Rogers. You made reference to the task forces that have
been developed as useful. And you think the BEST task force,
which was made reference to in our earlier panel, I think you
cited it in your opening statement; do you believe those are
going to be an effective means of remedying some of the
communication shortfalls?
Mr. Gordon. Yes, I do, because my experience with task
forces is they have proven to be a very effective means of
coordination of communication.
Mr. Rogers. Mr. Bonner, I want to make sure I understand.
My understanding of your statement is you also are not here as
an advocate of merger. In fact, in your written testimony, your
quote was, ``simply merging the bureaus of CBP and ICE would
not fix the problems resulting from their creation.'' And you
went on to say, ``In fact, it is likely that such a move would
exacerbate some of the existing problems.'' So I think that is
a pretty fair assessment to say that you are not a fan of
merger.
Mr. Bonner. I am not a fan of merger but a huge fan of
reorganization to correct some of the problems.
And I would also like to go back to Assistant Secretary
Baker's stay-the-course remark. That only works if you are on
track. If you are heading towards a cliff, the wisest thing to
do is throw the breaks on and turn around.
Mr. Rogers. I want to visit your suggestion about creating
three separate bureaus of Immigration, Customs and agriculture,
and ask you how, in your view, would that eliminate some of the
bureaucracy that we are suffering under and streamline
activities organizationally?
Mr. Bonner. What we are dealing with here is a set of three
very complex sets of laws. If you stack the laws and the
regulations and all of the implementing policies and court
decisions on top of each other, they would probably reach the
ceiling in this room. And so I am not advocating that we--that
you are going to achieve a lot of streamlined efficiency, what
I am saying is, you are going to be able to do the job more
efficiently. And job one is protecting America from terrorist
attacks, and job two for these agencies is doing their former
functions, whether that function was ensuring that only people
who have a right to come into the country come into the country
or to keep counterfeit goods out of the country or to keep
produce that that is tainted out of the country. So I don't
think you can look at it from a standpoint of trying to achieve
economies of scale by merging everything together. I mean, that
would suggest that you just throw every government agency into
one huge government agency.
Mr. Rogers. So, in summary--I want to get back to the
threshold question for this third--and I am convinced it is
going to be our final meeting on this issue--the threshold
question is whether or not we should merge CBP and ICE. The
first three panelists said, no. Two of the three of you are
saying merger is not the answer. Is, basically, that an
accurate assessment of what has happened here today?
With that, I will be quiet and yield to the ranking member
if he has any final questions before we adjourn this panel.
Mr. Meek. Well, I just mainly--I don't have a question, I
just have mainly a comment, Mr. Chairman.
I think it is important, gentlemen--obviously, there are
two or three members that are very passionate about this issue.
It is frustrating when we feel that we are doing the right
thing and then we hear that we are not doing the right thing as
it relates to policy. I don't read a lot coming out of Heritage
Foundation, but I think this makes some sense to be honest with
you, I am going to be brutally honest with you. I think it does
make sense.
I used to be a law enforcement officer, and I know what it
means when--what the chain of command means and the things that
go on at the top with the brass. When you start talking about
merger and you start talking about combining agencies, and then
folks go into the mode where they are saying, wait a minute,
hold it, I have a retirement boat in my future somewhere, and a
merger doesn't necessarily--I don't know where I am going to
fall in that organizational chart. The only thing different in
this case from the average merger is the fact that it is
dealing with border security, and it is dealing with the issue
that is at the forefront of all Americans' minds of protecting
us from individuals that will harm us, stopping drug dealers
from getting drugs into our country, all of these things, so
this is very, very important.
I just want to make sure for those folks that are out there
working shift work within both of the agencies, that they have
what they need. President Bonner, you know that the stovepipes
that we talk about, as relates to agriculture and enforcement
and investigation and a couple of other stovepipes that are out
there, to be able to allow hopefully individuals to be able to
carry out their functions better is something that, through the
mandatory process, that I have embraced some of that, and I
have embraced a lot of what you are saying about right now. I
believe right now is the time. And this will be an ongoing
discussion, and I hope you will continue to work with the
Chairman and members of this committee on this very issue, but
I think it is something that we are going to have to deal with
more sooner than later. And just shelving it and saying that,
well, we had the discussion, hopefully things will get better,
that is the reason why, Mr. Gordon, I am very interested in
seeing your letter to the Secretary to see, using concrete
again, is the concrete wet or dry? Are folks really willing to
be flexible for the sake of making sure that we have the best,
efficient agency as possible?
I go through Miami International Airport every week, and I
see Customs and Border Protection officers. I see ICE officers.
I see detention and removal. I mean, I see these folks that are
there. And they know I am a Congressman, and they stop me and
say, I understand that you all are talking about this, and
these are my issues. And I mean, I would like to help you
further, but I do want to hopefully have an opportunity to move
up in the organization without any repercussions. And I think
that is what makes this job even more difficult.
Mr. Chairman, hopefully in the discussion that we have
amongst members, I hope that we will be able to find some sort
of way that we can continue to carry out what Mr. Gordon said;
his members are split on this, but they want things to get
better. That is one thing that they hold a common interest on.
But what I am concerned about is a major, major foul up, when
we see--we kind of felt that it needed a little help, and we
needed to do something, and we didn't act when we should have
acted, should have responded to it, to the issues, that we
legislate in haste. And when we legislate in haste, that is a
true train wreck because things will not come out the way we
want to come out. I will say the Department of Homeland
Security, great idea, but it was created in haste. If we had an
opportunity to really oil it out and have the witness testimony
and to be able to do the things that we need to do, maybe we
will have a better functional department, and so now we are
going through the process and ironing out these issues.
One of the biggest steps, Mr. Chairman, was the creation of
this committee to be able to carry out the oversight functions
and to have members that will spend the time to get educated on
the issues versus coming in and out of the issue on other
committees of jurisdiction and trying to be professionals in
the area of management, integration and oversight.
So with that, Mr. Chairman, that is the end of my comments.
And I look forward to working with all of you as we move
forward.
Mr. Rogers. I thank the ranking member. I want to thank all
of you for your valuable time and your testimony. It is very
helpful to us to hear from professionals like you about these
important issues and decisions that need to be made.
Because of the late hour, I am intentionally not asking all
the questions I have, so I will remind you all that the record
will be open for 10 days. I know I have got a series of
additional questions that will be submitted to you. I would ask
that you respond to those in writing if you could for the
record.
And with that, we stand adjourned. Thank you.
[Whereupon, at 5:45 p.m., the subcommittee was adjourned.]
A P P E N D I X
----------
Questions from Hon. Mike Rogers of Alabama for Assistant Secretary
Stewart Baker, Assistant Secretary Julie Myers and Hon. Deborah Spero
Responses
May 11, 2006
1. Please provide an update on the Request for Proposals (RFP) for
SBInet.
Response: A critical component of the SBI strategy is the
Department's plan to launch a program to transform its border control
technology and infrastructure. This program, named SBInet, will
integrate multiple state of the art systems and traditional security
infrastructure into a single comprehensive border security suite for
the Department.
Since late January, the DHS team has been focused on the goal of
awarding a single prime contract to develop and deploy SBInet by
September 2006. The SBInet request for proposal was issued on April 11,
2006, and proposals were received on May 30, 2006.
As anticipated, we had a strong response to the RFP and the
evaluation process will be a lengthy one. To maintain the September
2006 award schedule, an intra-agency team of 36 DHS staff members are
working to complete thorough discussions and a comprehensive
evaluation.
2. Congress requested that the Department submit its strategic plan
for SBI by April 17, 2006 however; this plan has not yet been
submitted. When can we expect this plan to be submitted?
Response: DHS continues its work to refine the SBI strategy. The
strategy will include a multi-year plan that includes: a comprehensive
mission statement; an explanation of how long-term goals will be
achieved; schedule; an identification of annual performance goals and
how they link to long-term goals; an identification of annual
performance measures used to gauge effectiveness towards goal
achievement by goal; and an identification of major capital assets
critical to program success. The strategy will be submitted to Congress
as part of the requirement for delivery for a SBI strategic plan in
November 2006.
3. The Department describes SBI as a mix of technology,
infrastructure, and personnel solutions to strengthen border security.
Thus far, DHS has not estimated the number of Border Patrol personnel
that will be required to secure the border. Would you please discuss
why the Department does not have an estimate for the number of
personnel that will be required?
Response: U.S. Customs and Border Protection, Office of Border
Patrol (OBP) planners have indicated they need 18,000 to 20,000 Border
Patrol agents to secure the border. However, this estimate may change
based on the SBInet Integrator's recommendations, assuming an optimum
mix of personnel, technology and tactical infrastructure are made
available. Border Patrol is currently in the process of hiring agents
to meet the goal of 6,000 new agents by the end of the first quarter of
fiscal year 2009.
4. When does the Department plan to consider its future staffing
and training requirements?
Response: We have already begun by focusing on succession planning
and workforce development. These strategies address three main areas:
recruitment, retaining talent, and learning and development.
Recruitment
The Department is conducting workforce analyses that include
strategies to close hiring and competency gaps in mission critical
occupations across DHS. To assist in the recruitment effort, DHS has
established a corporate branding initiative resulting in recruiting
materials such as portfolios, slipsheets, a recruitment video, and CDs
that may be utilized throughout the Department at a variety of
recruitment events. A Recruitment Taskforce has been established to
leverage component-specific recruitment activities throughout the
Department. Components are making use of recruitment flexibilities such
as outreach, the student loan repayment program and hiring bonuses.
Retaining Talent
DHS is fostering a results-oriented workforce through the
implementation of the new pay and performance management system that
links individual/team/unit performance to organizational goals and
results. The DHS Chief Human Capital Office links specific component
results from the Federal Human Capital Survey to results gained from
workforce analysis. Components are encouraged to actively develop
internal strategies to track and improve retention for those segments
of their workforce where losses are above the normal rate by making use
of retention flexibilities such as retention bonuses, performance
awards, telework and alternative work schedules. We will continue to
develop approaches to retention based on exit interviews, grievance/
complaint trend analysis, and/or focus groups.
Learning and Development
All Components must foster continuity of leadership and knowledge
by applying the DHS Leadership Competency Framework and a succession
planning approach to their workforce planning efforts. Learning and
development opportunities must be continually funded through
centralized (Departmental) and Component-sponsored activities. This
ensures that the executives and those in the leadership pipeline
strengthen their ability to direct and manage the work of others,
evaluate and analyze results, and implement process improvement
techniques. The Leadership Competency Framework provides the necessary
standards to ensure learning is also aligned with organization goals.
Components will use the results gained from the workforce planning
process to identify appropriate attendees for programs such as the
newly established DHS-wide Senior Executive Service (SES) Candidate
Development Program, Component-specific Candidate Development Programs,
the Department of Labor's SES Forum Series, The USDA Graduate School,
and USDA's Executive Potential Program and Aspiring Leaders Program
among others.
Components will continue to share resources through programs such
as the tri-bureau (ICE, CIS, CBP) Supervisory Leadership Training
Program; USCG's Midlevel Managers Course, Mentoring, and Executive
Development Programs; and FEMA's Leadership Development Programs. It
will be through these efforts that DHS' leadership cadre will better be
able to effectively manage people, ensure continuity of leadership, and
sustain a continuous learning environment.
5. In the new DHS Policy Office, there is an office of
International Affairs that reports directly to you. However, CBP and
ICE still maintain their own offices of International Affairs and we
continue to hear about competition between the agencies for precious
billets at overseas posts.
<bullet> Has Policy considered the possibility of bringing the
ICE and CBP Offices of International Affairs under your policy
office? If not, why not?
Response: ICE and CBP maintain their own Offices of International
Affairs. However, the Component offices rely on OIA for international
policy guidance.
<bullet> How does the Policy office plan to ensure that CBP and
ICE coordinate with you about overseas assignments and plans
that do not compete for overseas posts?
Response: In accordance with DHS Management Directive 3400, prior
to the establishment of a DHS billet at a post abroad, the Office of
International Affairs (OIA), within the Policy Directorate, reviews the
position description and justification, and submits a recommendation to
the Deputy Secretary for approval. It is OIA's responsibility to
validate and manage the Department's overseas footprint in concert with
the Department of State's rightsizing initiative, the NSDD-38 process
and the DHS strategic plan to ensure all of our positions abroad are
necessary.
6. One of the Committee's continuing concerns is about ICE's morale
in the field. I understand that you have been meeting with agents in
the field and that these meetings are being well received. Can you
please tell us in more detail about these meetings, including the
feedback you have received?
Response: Agency morale is one of the most critical issues related
to agency success. Improving morale therefore has been one of my
greatest priorities. Establishing clear goals and providing strong
leadership are critical components of this effort. Upon my appointment
as Assistant Secretary for Immigration and Customs Enforcement, I
mailed a letter, sent a broadcast email and recorded a video message
targeted to the agency's 15,000 employees setting forth my vision. I
thought it was very important to inform employees about where I wanted
the agency to go, what expectations I had for them and how I intended
to achieve success with their support.
I also believe it is essential to engage employees in the field.
Since becoming Assistant Secretary, I have met with over 1,000
employees in various locations including Laredo, TX; Tucson, AZ;
Chicago, IL; Tampa, FL; San Diego, CA; and New York City, NY. The
feedback I have received indicates that the employees have appreciated
the opportunity to communicate directly with me, to express their
concerns and ideas as well as to receive added information about my
vision for the agency. Following these visits, I recorded my ``Notes
from the Road'' and issued them as regular broadcast emails to ensure
that ICE employees across the agency recognize that I take their
comments seriously and that I am committed to a strong line of
communication with our field operations.
I want to assure employees that my primary goal is to support them
and enable them to perform their responsibilities to the best of their
abilities. Since joining ICE, I have taken many steps to ensure that we
are addressing ongoing concerns raised by employees. I have issued
additional broadcast emails that echo my priorities for the agency.
Finally, I addressed ICE employees in May to talk about our
accomplishments and to reconfirm my priorities going forward.
I am pleased to report that employees in the field are responding
positively to the improving financial picture for the agency as well as
the greater clarity offered in terms of our priorities. We have a lot
of work to do, but based on the feedback we have received to date,
agents realize that we are making great progress.
7. How does ICE's enforcement of immigration laws in the interior
relate to the Secure Border Initiative?
Response: On November 2, 2005, the Department of Homeland Security
(DHS) announced the Secure Border Initiative (SBI). The border is not
merely a physical frontier and, effectively securing it requires
attention to processes that begin far outside U.S. borders, occur at
the border, and continue to all regions of the United States. SBI
brings a systems approach to meet this challenge; its mission is to
integrate and unify the systems, programs and policies needed to secure
the border and efficiently enforce our customs and immigration laws
A major component of SBI is ICE's work on immigration enforcement
inside the United States. The primary objective of the ICE Interior
Enforcement Strategy is to target the criminal networks, employers and
aliens that undermine our nation's laws and harm our communities. In
addition, ICE is increasing its worksite enforcment efforts. A joint
government and private sector initiative has been designed to increase
employer compliance through outreach programs that will reduce
vulnerabilities in the hiring process by partnering with employers to
share best practices and encourage an environment of self-policing.
This will allow ICE to focus on known and egregious violators of the
law.
DHS has launched ICE-led Border Enforcement Security Task Forces
(BEST) to combat illicit border activities domestically, to include
human smuggling. BEST teams are comprised of personnel from a number of
federal law enforcement agencies (ICE, CBP, ATF, FBI, DEA, U.S.
Marshals Service), key state and local law enforcement agencies and
U.S. Attorney's Office and local prosecutors. BEST also incorporates
personnel from existing intelligence groups--involved in both
collection and analysis--to help identify and disseminate information
relating to smuggling organizations. BEST has been launched in Laredo
and Tucson.
8. What are the top ten most porous areas of the border? How many
Border Patrol agents do you believe it will take to gain operational
control of these areas?
Response: The four states along the southwest border have the most
illegal activity. The Border Patrol has divided the southwest border
into three strategic enforcement corridors: California Corridor;
Arizona/New Mexico Corridor; and Texas Corridor.
Operational control is not gained exclusively through additional
staffing. Instead, operational control is achieved with the right mix
of technology, infrastructure and staffing, including Border Patrol
Agents and support personnel. Maintaining control will also require
sufficient support from other agencies, such as detention and removal
support from ICE as well as prosecution support from DOJ. In order to
be responsive to your inquiry, estimates are provided below; however,
CBP will work with the SBInet integrator (a contract is expected to be
awarded in the fall) to determine the best solution for each particular
environment. As a result, these staffing estimates could change in the
future. It is also essential that other components within the
government that are involved in prosecuting, investigating, and
detaining individuals who are arrested by CBP receive the resources
necessary to meet the increased demand arising from additional Border
Patrol staffing.
The California Corridor consists of San Diego and El Centro
Sectors; it contains approximately 131 miles of border and has twenty-
two percent of the southwest border's total manpower. This corridor
accounts for eighteen percent of all apprehensions and six percent of
narcotics seized. To gain operational control in the California
Corridor, CBP Border Patrol will need approximately 800 additional
agents, a twenty-five percent increase from current staffing levels.
However, as noted above, this estimate is subject to change, based upon
the work of the SBInet integrator.
The Arizona/New Mexico Corridor consists of Tucson, Yuma, and El
Paso Sectors. It contains approximately 655 miles of border and has
thirty-seven percent of the southwest border's total manpower. This
corridor accounts for fifty-six percent of all apprehensions and fifty-
six percent of narcotics seized. The sectors within this corridor are
focus sectors and will receive priority resource deployments. To gain
operational control in the Arizona/New Mexico Corridor, CBP Border
Patrol will need approximately 1,400 additional agents, a thirty
percent increase from currents staffing levels (subject to change, as
noted above).
The Texas Corridor consists of Marfa, Del Rio, Laredo, and Rio
Grande Valley Sectors. It contains approximately 1,207 miles of border
and has forty-one percent of the southwest border's total manpower.
This corridor accounts for twenty-six percent of all apprehensions and
thirty-eight percent of narcotics seized. To gain operational control
in the Texas Corridor, CBP Border Patrol will need approximately 2,600
additional agents, a forty-three percent increase from current staffing
levels (subject to change, as noted above).
Operational control of all corridors will also be dependent on
additional deployments of technology and infrastructure along with an
increase in agents.
9. The Federal Government regularly uses contract security guards
to provide security at sensitive Federal sites around the country.
Given the inability to gain operational control of the border and the
shortage of trained Federal law enforcement, would you consider
utilizing private contractors to supplement the Border Patrol until we
have a sufficient number of trained Border Patrol agents?
Response: As an initial matter, CBP does not agree that operational
control of the border is not achievable. CBP has taken and continues to
take aggressive actions to control and protect the border, including
increasing Federal personnel, using innovative technology, and using
contractors to perform support activities.
You have asked whether CBP would consider using private security
guards to supplement the Border Patrol. CBP cannot legally contract out
Border Patrol Agent positions because Border Patrol Agents perform
inherently governmental functions. As explained more fully below,
current laws restrict those activities that may be performed by
contractors.
CBP is required by the Federal Activities Inventory Reform (FAIR)
Act of 1998 to perform an annual inventory of agency functions to
identify employee functions that are inherently governmental. See Pub.
L. No. 105-270 (Oct. 19, 1998). The report must be submitted to the
Office of Management and Budget annually. The FAIR Act places
limitations on what Federal agency functions can be performed by
contractors. Specifically, the FAIR Act prohibits Federal agencies from
contracting out those functions that are deemed ``inherently
governmental.''
The FAIR Act defines an inherently governmental function as one
``that is so intimately related to the public interest as to require
performance by Federal Government employees.'' Pub. L. No. 105-270. The
FAIR Act sets forth criteria for determining what functions are
considered inherently governmental. A function is inherently
governmental if it requires the individual performing the function to
exercise ``discretion in applying Federal Government authority or the
making of value judgments in making decisions for the Federal
Government, including judgments relating to monetary transactions and
entitlements.'' Pub. L. No. 105-270. Some functions considered
inherently governmental include positions requiring interpretation and
execution of Federal laws in order to ``determine, protect, and advance
United States economic, political, territorial, property, or other
interests by military or diplomatic action, civil or criminal judicial
proceedings, contract management, or otherwise'' and ``significantly
affect the life, liberty, or property of private persons.'' Pub. L. No.
105-270.
The FAIR Act also provides guidance about those functions not
considered inherently governmental functions. These functions,
otherwise known as commercial functions, include information-gathering
positions where the information is transmitted to Federal employees for
use in performing inherently governmental functions. See Pub. L. No.
105-270. Commercial functions also include performance of actions
deemed ``primarily ministerial and internal in nature.'' Specific
examples of this second category identified in the FAIR Act include,
``building security, mail operations, operation of cafeterias, [and]
housekeeping.'' Pub. L. No. 105-270 (emphasis added).
In accordance with the FAIR Act, CBP's Office of Finance
coordinates, analyzes, and compiles the annual, agency-wide inventory
of positions within CBP to identify those that involve performance of
inherently governmental functions and those that are of a commercial
nature. This inventory and associated analysis includes positions
within the Border Patrol.
In June 2005, CBP specifically reviewed the FAIR Act
classifications of CBP law enforcement functions. After reviewing the
authorities vested in these individuals, CBP concluded that the
functions performed by Border Patrol Agents, CBP Officers, and Air and
Marine Officers have been properly classified as ``inherently
governmental'' and therefore cannot be performed by contractors. It
remains CBP's position that the position of Border Patrol Agent is
inherently governmental in that it requires performance of numerous
activities that fall within the definition of that phrase under the
FAIR Act.
Border Patrol Agents have authority delegated from the Secretary of
the Department of Homeland Security to perform numerous inherently
governmental law enforcement tasks including interrogating, boarding
and searching vessels without a permit, patrolling to prevent entry of
aliens, arresting for violations of any Federal law, carrying firearms,
using force, and executing and serving orders, warrants, summons and
subpoenas. Border Patrol Agents interpret laws, exercise discretion,
and make binding legal decisions that can affect the life, liberty, and
property of the people they encounter along the border. The authority
to perform these activities is set forth in the Immigration and
Nationality Act, 8 U.S.C. Sec. 1357 and 8 C.F.R. Sec. 287.5. These
activities fall squarely within the FAIR Act definition of inherently
governmental and simply cannot be performed by security guards or other
contractors. Although other types of work now performed in the border
environment (such as building roads and fences, repairing vehicles,
etc.) may be contracted out, the FAIR Act prohibits CBP from
contracting out Border Patrol Agent functions.
10. I recently received the response to a letter I wrote to Chief
Tom Walters, the Assistant Commissioner for Training and Development at
CBP, regarding the use of private security guards to supplement the
work of Border Patrol agents. The response letter raised a number of
limitations to using private security guards, including liability,
officer safety, a potential language barrier, and training.
a. Regarding liability, contractors providing security
personnel to the military are required to have liability
protection under the Defense Base Act. In addition, contractors
could gain SAFETY Act coverage. Would you please discuss why
liability concerns would preclude the Border Patrol from
utilizing private security guards to supplement the work of
Border Patrol agents?
b. Regarding safety, contractors currently train and deploy
personnel to Iraq and Afghanistan on behalf of the military and
the Department of State. Blackwater USA provides border patrol
and safety training to the Afghan Border Patrol. Private
security personnel also guard U.S. embassies in Baghdad and
Kabul. Would you please discuss why safety concerns cannot be
overcome?
c. Regarding a language barrier, Blackwater USA was recently
asked to hire guards with Japanese speaking skills to protect a
strategic site overseas. Unlike Japanese speakers, this country
is full of Spanish speakers. Would you please discuss why you
believe that a potential language barrier should prevent the
Border Patrol from exploring the use of private security
guards?
d. Regarding training, the letter also raised the concern that
private security guards might not be adequately trained to be
deployed in such a dangerous environment as the border. A
statement of work on any contract, however, can set the
standards for training, physical fitness, and other
requirements. If the Border Patrol would have the ability to
specify the training requirements, why would this still be a
concern?
Response: As explained above, CBP is prohibited by statute from
hiring hire private security guards to perform the work of Border
Patrol Agents because Border Patrol Agents perform inherently
governmental functions.
With regard to sub-questions 10a-10d, we regret that our previous
response may not have clearly explained the primary threshold
determination of inherently governmental work. Some of the issues
identified are legitimate concerns and are taken into account by an
agency when it performs an OMB Circular A-76 feasibility study. If,
despite concerns such as safety, training or oversight, a function is
deemed feasible for competition, then the agency will take steps to
mitigate those concerns via contractual requirements. In other words,
when CBP has specific areas of concern, such as language proficiency or
training, then CBP includes relevant requirements in the competition.
However, as explained above, CBP first analyzes whether an activity is
inherently governmental or commercial. If the function is classified as
inherently governmental, then CBP does not perform a feasibility study.
Because the position of a Border Patrol Agent is classified as
inherently governmental, CBP cannot use contract security guards to
increase the law enforcement capability of the Border Patrol. However,
CBP can use contract security guards and other contractors to perform
administrative or support functions currently performed by Border
Patrol Agents, provided that CBP's abides by the FAIR Act, OMB Circular
A-76, the Competition in Contracting Act and the Federal Acquisition
Regulation. In fact, contractors are already performing IT services and
medical testing services that support the Border Patrol. There are also
some activities that support the Border Patrol that CBP is analyzing
and may be made available for competition in the future. Some of these
activities include facilities repair and maintenance, motor vehicle
maintenance, and support positions within the areas of program
management, recruiting, and public relations.
While it may appear that using contractors to supplement the ranks
of the agency's Border Patrol Agents is desirable, even where it is
allowed under the FAIR Act, CBP must carefully analyze whether it is
reasonable and feasible. OMB Circular A-76 requires that the agency
perform extensive preliminary planning and identifies the steps to be
taken in the preliminary planning process as part of the overall
competitive sourcing process. This process is often referred to as
conducting a feasibility study or business case study. The feasibility
studies look expansively at the impact of competing a function.
Specifically, they are used to evaluate, scope, and group functional
``business units,'' test market interest in the function, and document
the business case for whether to proceed with a competition of the
function. A feasibility study of activities supporting the Border
Patrol would consider factors such as potential liability, Federal
employee/contractor employee safety, and contractor oversight. But,
again, the inherently governmental nature of Border Patrol Agents
precludes the use of contract security guards for duties that involve
performing inherently governmental functions.
11. The President's Budget Request for Fiscal Year 2007 includes
the addition of 375 operations support personnel for the Border Patrol.
a. Will CBP please discuss how these additional support
personnel will be used?
Response: The support personnel will be employed in positions such
as Law Enforcement Communications Assistants, Camera Operators, Vehicle
Mechanics, Infrastructure Maintenance (fence repair, heavy equipment
operation, truck drivers, etc.), Intelligence Analytical Support and
Facilities Maintenance.
b. If the Border Patrol will be hiring 375 additional support
personnel, how will this affect the number of Border Patrol
agents deployed along the border? How many more Border Patrol
agents will be able to perform the functions they were trained
for, rather than performing administrative and other support
functions?
Response: While the hiring of an additional 375 support personnel
for the Border Patrol will redress a long-standing deficit, it will not
have a direct effect on the number of Border Patrol Agents deployed to
the border.
Although the agent workforce for the Border Patrol has tripled
since the early 1990s, there have not been significant, matching
increases in the support personnel that are required to support these
additional agents. As a result, there has been a deficit in support
personnel for a number of years. While, ultimately, the hiring of 375
additional support personnel will help to redress this long-standing
deficit, in the more immediate term, it is the National Guard
deployment that will allow agents to return to regular law enforcement
duties. The new support employees are expected to come on board during
the National Guard deployment so that, once this deployment concludes,
Border Patrol Agents will not be required to return to these non-law
enforcement functions.
c. Do support personnel require training? If so, what kind of
training do they receive? What is the cost to provide this
training? How long is the training? Who provides the training?
Response: Support personnel are selected using standard Federal
personnel processes wherein the applicants are evaluated to determine
which candidates are most qualified to perform the duties and
responsibilities as described in the vacancy announcement. They do not
attend a basic training curriculum prior to their employment.
Training for support personnel is usually minimal. Vehicle
Mechanics, Infrastructure Maintenance Workers, and Intelligence Support
are hired because of their existing respective skill sets. The majority
of the training for newly hired support personnel will be on the job
training. If specialized training (i.e. certifications) is required, it
is usually for no longer than one week and takes place on site.
12. How many memorandums of understanding has the Department issued
governing the relationship and responsibilities between ICE and CBP?
Response: The answer to your question is ``For Official Use Only,
Law Enforcement Sensitive.'' Immigration and Customs Enforcement and
Customs and Border Protection staff are available to provide a briefing
on the issue in an appropriate venue upon request.
a. What metrics does CBP utilize to assess the effectiveness of
MOUs and determine whether they need to be updated or amended?
Response: The response to the question depends on the specific MOU.
s an example from a joint CBP & ICE MOU, CBP's Office of Border Patrol
(OBP) and ICE's Office of Intelligence (OI) joint MOU has a clause
which provides for review after six months, one year, two years, and
then every succeeding two years. Five Sector Chiefs and Five ICE
Special Agents in Charge constitute a review committee to make
recommendations to CBP OBP and ICE OI. The review committee has
determined that the joint MOU has been effective at the field level and
no major revisions or changes to the Joint MOU are necessary. In
another example, the CBP Office of Field Operations and ICE OI have
another MOU that is reviewed twice annually at meetings of appropriate
field leaders.
b. How does CBP translate MOUs into practice on the operational
level in the field?
Response: The joint MOUs have been beneficial to both CBP and ICE
in clarifying the roles and responsibilities of each agency. Since that
time, headquarters and field personnel have worked hard to improve our
partnership based upon the principles and direction outlined in the
joint memoranda. As a result, the relationship between the two agencies
has strengthened, roles and responsibilities are better understood and
are more appropriately and efficiently executed, and field personnel
within both agencies have effectively applied the principles set forth
in each joint MOU in a spirit of cooperation. Cooperative efforts
throughout the country have contributed to mission success and
increased the efficiency and effectiveness of our enforcement efforts.
13. What is the status of that investigative pilot program at CBP
and does it violate the basic premise of the MOU? What has been the
Department's response to the pilot program?
Response: In order to coordinate border enforcement activities, a
joint working group was established with the U.S. Customs and Border
Protection (CBP), Office of Field Operations (OFO), and the U.S.
Immigration and Customs Enforcement (ICE), Office of Investigations
(OI). The group was established in recognition that it is essential
that officers from the CBP/ OFO and agents from the ICE/OI communicate
effectively to harmonize enforcement efforts to protect the United
States. The CBP/OFO--ICE/OI Working Group meets quarterly to promote
ongoing dialogue and resolution of issues that impact our agencies. As
part of this Working Group, on December 8, 2005, the first joint
memorandum was drafted and issued to the field managers of both
agencies. The memorandum outlined the guiding principles governing
ongoing interactions between OFO and OI to assist in coordination and
clarifying roles and responsibilities. The joint memorandum also made
reference to the joint CBP/ICE investigative pilot whereby CBP
Officers/Enforcement (CBPO/E) shadow ICE Special Agents. This joint
memorandum was not intended to be used as a MOU, but rather to serve as
a means of communicating the group's work.
The written agreement between ICE and CBP was not outlined in the
traditional ``Memorandum of Understanding'' (MOU) format referred to by
the Subcommittee. Rather the coordination issues between ICE and CBP
were agreed upon in a joint memorandum titled, ``Guidance on Referral
Coordination for U.S. Customs and Border Protection and U.S.
Immigration and Customs Enforcement,'' dated May 10, 2006. This
agreement between ICE and CBP reaffirms that, with few exceptions, ICE
is solely responsible for conducting investigations of CBP referrals
and that CBP is primarily responsible for the operational and
interdiction activities within the ports of entry. Subsequent to the
issuance of this agreement, discussions held between ICE Office of
Investigations (ICE OI) and CBP Office of Field Operations revealed
that CBP intended to initiate a pilot program that would assess the
viability of instituting a future program where certain CBP officers
would have authority to pursue the prosecution of drug smugglers who
were discovered at ports of entry. This pilot project will be conducted
with participation from ICE OI agents, and CBP's assessment will be
limited solely to ports of entry. The Department of Homeland Security
supports CBP and ICE's efforts in working together to strengthen an
effective working partnership.
14. CBP currently controls the TECS (Treasury Enforcement
Communications System) database which stores information on ICE case
and investigative data. In FLEOA's (Federal Law Enforcement Officer's
Association) testimony, they indicate that there are ongoing complaints
from ICE agents regarding accessing certain database information that
is controlled by CBP. Specifically, CBP is not entering information
into TECS on their investigative targets leaving no way for ICE agents
to be alerted to a CBP lead on a suspect.
<bullet> Can you please explain for us why CBP officers are not
entering this valuable information into TECS? Are there plans
underway for CBP to begin entering this information?
Response: CBP has policies in place to ensure coordination with ICE
in a variety of investigative arenas. Through policy directives and
duty musters, CBP Officers and Agents have been reminded of their
responsibility to complete all required documentation of examinations
in a timely manner. Additionally, CBP Officers coordinate with the
local ICE Duty Agent anytime a potential terrorist or watchlisted
person is identified in advance of arrival in the United States.
CBP believes that our Officers and Agents are entering valuable
information into TECS in a timely manner. Through the use of one-day
lookouts, secondary enforcement results and reports of suspicious or
unusual activities encountered by CBP Officers and Agents, CBP-driven
investigative leads are made available to ICE Special Agents in TECS.
Circumstances encountered by CBP that require investigative follow-
up are referred directly to the ICE Duty Agent at the local Special
Agent in Charge (SAC) or Resident Agent in Charge (RAC) office. Such
circumstances may include, but are not limited to, the death of an
alien, smuggled contraband, suspected smugglers, outbound seizures
related to criminal export violations, and cross-border tunnels.
Finally, local notification thresholds and protocols that consider
unique operational environments and resources have been developed
between the Directors of Field Operations (DFOs), Chief Patrol Agents
(CPAs) for the Border Patrol and ICE Office of Investigations' SACs.
Questions from the Honorable Bennie Thompson
1. We understand that in response to the Inspector General's
recommendations, ICE & CBP developed a Coordinating Council. In the
weeks leading up to this hearing, there has been a drumbeat of letters
to my office from agents and officers in the field who feel
disconnected and know nothing of your coordination efforts.
a) Who are represented among the members of that council? Are
rank-and-file Border Patrol Agents, CBP inspectors, ICE
investigators and ICE-DRO officers included?
Response: In late 2005, CBP and ICE, under Secretary Chertoff's
direction, created the ICE-CBP Coordination Council. The Council meets
regularly to coordinate and resolve operational and policy matters and
to monitor implementation of ICE/CBP Memoranda of Understanding (MOA),
among other things. The Council reports to the Secretary on outstanding
issues, resolutions, and disagreements that require further direction
or de-confliction. Co-chaired by the leaders of both agencies and the
heads of the main operational divisions of ICE and CBP, Council Members
include:
------------------------------------------------------------------------
CBP ICE
------------------------------------------------------------------------
Commissioner Assistant Secretary
------------------------------------------------------------------------
Deputy Commissioner Deputy Assistant Secretary
------------------------------------------------------------------------
Assistant Commissioner, Office of Field Director Office of
Ops Investigations
------------------------------------------------------------------------
Chief, Office of Border Patrol Director, Office of
Detention and Removal
------------------------------------------------------------------------
Director, Office of Anti-Terrorism Senior Policy Advisor
------------------------------------------------------------------------
Director, Office of Policy and Planning
------------------------------------------------------------------------
While the Coordination Council was designed as a senior management-
level entity, its deliberations and decisions are communicated to rank-
and-file field officers/agents of both agencies through normal chain of
command and information dissemination programs. One of the Coordination
Council's main activities this year was issuing a joint CBP/ICE memo,
signed May 10 by the heads of both agencies, providing Guidance on
Coordination of Referrals to all frontline officers. Field level
coordination avenues also have been established through the MOA
mentioned above.
We take very seriously any indications of a lack of appropriate
coordination between CBP and ICE personnel at any level. Upon receiving
information regarding such problems, we would take immediate steps to
remediate the issue and ensure it is resolved.
b) If not, how are CBP & ICE ensuring that the agreements
reached on the Council level are effectively communicated at
all levels of the Department?
Response: Although the Coordination Council was designed to
facilitate collaborative efforts at the leadership level of both
agencies, ICE and CBP field personnel remain informed about the
activities and decisions of the Council. For example, in May 2006, the
ICE Assistant Secretary and CBP Acting Commissioner issued guidance on
referral coordination between ICE and CBP to CBP Chief Patrol Agents,
CBP Directors of Field Operations, and ICE Special Agents in Charge,
which was then disseminated to their field personnel. This memorandum
addressed the support that ICE and CBP provide to each other in their
enforcement efforts, including the proper referral of investigative
leads. ICE and CBP field personnel were encouraged to find every
feasible opportunity at the local level to promote broader cooperation
and to jointly resolve at the field level issues that may arise--
especially in the area of currency and monetary instruments, illegal
drugs, commercial importation and exportation violations, national
security matters, and gangs. Through such communication, ICE and CBP
will continue to strengthen the effective working partnership that
exists between the two agencies and their personnel at all levels.
2. We are going to have a hearing here next week in this
Subcommittee on the development of human capital at the Department.
Within ICE, you have a few different types of agents and officers--each
with their own unique function and training requirements, right?
Response: The Office of Investigations employs Special Agents
(criminal investigators) who use ICE's immigration and customs
authorities to conduct complex criminal investigations. Programmatic
areas are very diverse and specialized, requiring extensive technical
and operational training to achieve full proficiency.
The Office of Detention and Removal Operations employs Deportation
Officers who promote public safety and national security by providing
for the control of all removable aliens and ensuring their departure
from the United States. Deportation Officers have primary
responsibility for overseeing the removal process, enforcing removal
orders and investigating, locating, and arresting fugitive aliens. The
sensitive and complex nature of immigration law enforcement requires
comprehensive technical and operational training to achieve full
proficiency.
Currently, both the Office of Investigations and the Office of
Detention and Removal Operations employ Immigration Enforcement Agents
(IEA). IEAs are responsible for the identification, processing, removal
and escort of aliens who have been ordered removed from the United
States. IEAs also oversee the transportation and custody of detained
aliens.
a) In DRO, you have two law enforcement officers--the
Immigration Enforcement Agent and the Deportation Officer,
right?
Response: Yes, this is correct.
b) What sort of training do you require for your Deportation
Officers?
Response: The entry-level training that must successfully be
completed is the ICE Detention & Removal Basic Course (ICED). This 84-
day course is considered "basic immigration law enforcement training"
as defined in 8 CFR 287.1(g) and is normally provided to Immigration
Enforcement Agents (IEAs).
The program includes instruction in Nationality and Immigration
Law, Statutory Authority, Detention & Removal Operations, Arrest
Techniques, Non-Deadly Force Techniques, Firearms, Constitutional Law,
Criminal Law, Conspiracy Law and Physical Conditioning.
The Deportation Officer Transition Training Program (DOTTP)
supplies the necessary and critical Deportation Officer training that
will assist an individual in transitioning into new duties as a
Deportation Officer. The course includes an extensive presentation of
4th Amendment Law, Deportable Alien Control System (DACS), Treasury
Enforcement Communications System (TECS), Post-Order Custody Release
(POCR) and Alternatives to Detention. Other instruction includes
Prosecution and Courtroom Procedures, Administrative Stays of Removal,
Asylum and Refugees, Special Status Aliens, and an in-depth, DRO
specific, Interviewing for Law Enforcement Officers lecture and lab.
This course also discusses and demonstrates in depth the daily duties
of a Deportation Officer, including Docket Control, Case Management,
Travel Document requests, and alternate orders of removal.
c) Do they get any kind of immigration training or specialized
law enforcement training?
Response: Yes, this training is considered ``basic immigration law
enforcement training'' as defined in 8 CFR 287.1(g) and has replaced
the ``Immigration Officer Basic Training Course'' specified in the
statute. The courses are very specific to the officers' respective
positions as Immigration Enforcement Agents and Deportation Officers.
d) From your perspective, are there any circumstances where you
would envision waiving these training requirements for a
federal law enforcement officer?
Response: 8 CFR 287.5 and 287.8 require that Deportation Officers
and Immigration Enforcement Agents complete basic immigration law
enforcement training, or training substantially equivalent thereto as
determined by the Assistant Secretary. In circumstances where there is
equivalent training, a waiver must be processed.
3. The updated MOU between ICE and CBP reaffirmed that that ICE is
the investigative arm for CBP and that CBP is ``primarily responsible
for the operational activities and interdictions within the ports of
entry.'' Yet in October 2004, CBP announced a pilot program to develop
its own investigative capabilities with regard to criminal violations
of federal customs and drug statutes.
<bullet> What is the status of the MOU? Has it been issued yet?
If so, would you please provide a copy of that memo to the
Subcommittee? If not, please tell the Committee the status of
the memo.
Response: In order to coordinate border enforcement activities, a
joint working group was established with the U.S. Customs and Border
Protection (CBP), Office of Field Operations (OFO), and the U.S.
Immigration and Customs Enforcement (ICE), Office of Investigations
(OI). The group was established in recognition that it is essential
that officers from the CBP/OFO and agents from the ICE/OI communicate
effectively to harmonize enforcement efforts to protect the United
States. The CBP/OFO--ICE/OI Working Group meets quarterly to promote
ongoing dialogue and resolution of issues that impact our agencies. As
part of this Working Group, on December 8, 2005, the first joint
memorandum was drafted and issued to the field managers of both
agencies. The memorandum outlined the guiding principles governing
ongoing interactions between OFO and OI to assist in coordination and
clarifying roles and responsibilities. The joint memorandum also made
reference to the joint CBP/ICE investigative pilot whereby CBP
Officers/Enforcement (CBPO/E) shadow ICE Special Agents. This joint
memorandum was not intended to be used as a MOU, but rather to serve as
a means of communicating the group's work.
The written agreement between ICE and CBP was not outlined in the
traditional ``Memorandum of Understanding'' (MOU) format referred to by
the Subcommittee. Rather the coordination issues between ICE and CBP
were agreed upon in a joint memorandum titled, ``Guidance on Referral
Coordination for U.S. Customs and Border Protection and U.S.
Immigration and Customs Enforcement,'' dated May 10, 2006. This
agreement between ICE and CBP reaffirms that, with few exceptions, ICE
is solely responsible for conducting investigations of CBP referrals
and that CBP is primarily responsible for the operational and
interdiction activities within the ports of entry. Subsequent to the
issuance of this agreement, discussions held between ICE Office of
Investigations (ICE OI) and CBP Office of Field Operations revealed
that CBP intended to initiate a pilot program that would assess the
viability of instituting a future program where certain CBP officers
would have authority to pursue the prosecution of drug smugglers who
were discovered at ports of entry. This pilot project will be conducted
with participation from ICE OI agents, and CBP's assessment will be
limited solely to ports of entry. The Department of Homeland Security
supports CBP and ICE's efforts in working together to strengthen an
effective working partnership.
<bullet> What is the status of that investigative pilot program
at CBP and does it violate the basic premise of the MOU? What
has been the Department's response to the pilot program?
Response: As part of the Working Group discussion mentioned in the
response immediately above, CBP and ICE agreed to a pilot program
whereby certain CBP Officers/Enforcement (CBPO/E) shadow certain ICE
Special Agents. The aim of the CBPO/E Pilot Program is to determine the
impact of committing CBP resources to pursuing limited Title 21
prosecutions. OFO designated the Miami Field Office (MFO) as the lead
for coordinating the development of field criteria for the CBPO-E Pilot
Program.
As outlined in the memorandum, the ICE Office of Investigations
supports the current scope of duties for the CBPO/Es, identifying and
processing criminal prosecutions and administrative cases involving the
Immigration and Nationality Act. The memorandum also reflects that it
has been agreed that CBPO/Es will continue their current duties in
enforcing the provisions of Titles 8 and 18 of the U.S. Code within the
ports of entry.
4. At a February 13 Coordinating Council meeting, CBP and ICE
agreed to issue a memo clarifying the referrals for investigation to
ICE from CBP. The referral issue is said to be a major source of
friction between the agencies is the existence of other legacy
memorandums of understanding with Department of Justice entities that
result in drug investigations being referred to DEA and FBI.
<bullet> What is the status of the MOU? Has it been issued yet?
If so, would you please provide a copy of that memo to the
Subcommittee? If not, please tell the Committee the status of
the memo.
Response: The document is not an MOU. On May 10, 2006, the CBP
Acting Commissioner and ICE Assistant Secretary signed a joint memo to
the field, entitled Guidance on Referral Coordination for U.S. Customs
and Border Protection and U.S. Immigration and Customs Enforcement, as
a reminder of existing referral agreements between CBP and ICE. A copy
is attached.
5. How does CBP prioritize the cases for referral for
investigations as relate to terrorism travel, human smuggling and
trafficking, and drug activities?
Response: The Border Patrol, for the purpose of facilitating
investigative efforts concerning criminal(s) and/or criminal
organization(s), will notify ICE/OI as soon as possible of certain
interdiction events or investigations. The Sector Chief Patrol Agents
and Special Agents-in-Charge have developed local notification
thresholds and protocols that consider their unique operational
environments. The events that require notifications include: (1) death
of an alien; (2) the homicide or serious physical injury of agents(s)
when there is a smuggling nexus; (3) aliens held hostage; (4) seizures
of cash over $10,000; (5) seizures of narcotics to which the Drug
Enforcement Administration (DEA) declines to respond; (6) seizures of
commercial shipments of merchandise; (7) cross-border tunnels; (8) high
profile cases and interdictions where significant media interest can
reasonably be expected; (9) all outbound seizures related to criminal
export violations; (10) interdictions that are discovered to have ties
to any ICE/OI investigation (TECS hits, etc); and (11) arrests of
aliens from special interest countries and special interest aliens.
Border Patrol representatives at the National Targeting Center (NTC)
will notify the ICE representative at the NTC of any arrest of an alien
from a special interest country. The ICE representative will be
responsible for contacting the appropriate ICE duty agent.
Additionally, the local Border Patrol may also notify the local ICE/OI
duty agent directly.
In situations involving drug seizures when the DEA declines
prosecution, the Border Patrol may contact ICE/OI for further
investigation; turn the narcotics over to state or local agencies; or,
in a limited number of localities, present the case directly to the
AUSA or District Attorney for prosecution. The procedures followed in
each Sector will depend upon local laws, existing protocols, and
resources.
In accordance with established policy, CBP must notify the FBI's
Joint Terrorism Task Force (JTTF) regarding all aliens from special
interest countries and special interest aliens apprehended by the
Border Patrol. The Border Patrol also contacts the National Targeting
Center (NTC), which notifies the ICE representative at the NTC. These
procedures have been in place for some time and they are working very
effectively.
Arrests for some violations are referred to other Federal agencies
because of existing MOUs. Both Border Patrol Agents and ICE agents are
delegated Title 21 (Drugs) authority from the Drug Enforcement
Administration in accordance with the Memorandum of Understandings with
the DEA. The ATF delegates Title 18 USC 922 (to arrest aliens in
possession of firearms) to both Border Patrol and ICE. These
delegations allow both agencies to present cases for prosecution (on
behalf of the DEA and ATF) to the USAO. In cases that involve multiple
violations such as currency, drugs, and alien smuggling, the Border
Patrol will notify both the DEA and ICE. The Investigators from these
two agencies will then coordinate the investigation or consult with the
USAO for the best course of action/prosecution.
CBP Office of Field Operations does not prioritize referrals to
ICE. ICE provides each port of entry with a duty agent roster. When the
CBP officers at a port seize any narcotics or other contraband,
undeclared currency, or commercial merchandise, the officers will
notify the ICE duty agent. The ICE duty agent will advise the CBP
Officers on a decision as to whether ICE will investigate. When CBP
Officers at any port encounter someone suspected of being connected to
terrorism, the Officers make three notifications--to the local Joint
Terrorism Task Force (JTTF), the ICE duty agent and the National
Targeting Center (NTC). When CBP Officers at a port encounter instances
of human trafficking, they notify the ICE duty agent. The difference
between this situation and those described above is that CBP/OFO has a
class of Enforcement Officers who will take certain kinds of human
smuggling cases before the U.S. Attorney in order to seek prosecution.
However, they notify ICE in all cases. ICE will generally pursue the
bigger human smuggling conspiracy cases.
6. In the last fiscal year, how many referrals were made by CBP to
ICE?
Response: During FY 2005, CBP Office of Field Operations referred
20,756 cases to ICE. Among them are cases that originated with the
seizure of drugs, currency and property. OFO refers all such cases to
ICE. ICE then determines whether it is appropriate to refer a case to a
third agency.
The Border Patrol does not use the term ``referral.'' Pursuant to
standing MOUs, the Border Patrol notifies the appropriate agency or
agencies in the event of an arrest/seizure/incident. This notification
is made, orally, to the ICE, DEA, FBI, JTTF, or other Federal, State,
or local office, as appropriate, depending on the seizure or arrest.
This notification is noted in the Border Patrol agent's case report,
which is in text format in the IDENT/ENFORCE system. For Border Patrol,
ICE only records in the TECS System the number of investigations that
ICE opens (not the total number of notifications). In complex cases,
the Border Patrol may notify several agencies that may have enforcement
responsibilities for a particular case. The participating agencies will
determine, in conjunction with the U.S. Attorney, who has the
investigative lead, and the appropriate course of action.
The Border Patrol does not have an automated standardized
collection process that permits the tracking of ``referrals'' to ICE or
other agencies. The Border Patrol does, however, track the total number
of ``seizure incidents'' (e.g., seizures of property, drugs, cash,
vehicles, etc.).
a) How many were made by CBP to DEA?
Response: While CBP Office of Field Operations does not refer cases
to DEA, the Border Patrol does, pursuant to a standing MOU. Currently,
the Border Patrol does not have an automated standardized collection
process that would permit it to track the number of ``referrals'' to
DEA. The Border Patrol does, however, track the total number of
``seizure incidents'' (e.g., seizures of property, drugs, cash,
vehicles, etc.). In FY 2005, 3,773 seizure incidents were transferred
over to (TOT) to DEA.
b) How many were made by CBP to FBI?
Response: CBP Office of Field Operations does not refer cases to
the FBI. Cases are first referred to ICE, which then decides whether or
not to refer the case to FBI.
Currently, the Border Patrol does not have an automated
standardized collection process that would permit it to track the
number of referrals to the FBI. The Border Patrol notifies the local
FBI/JTTF, as well as the National Targeting Center (NTC), on all
suspected terrorist or Special Interest Alien (SIA) encounters. The NTC
notifies the on-duty ICE representative at the NTC. The referral is
noted in the Border Patrol agent's case report, which is in text
format, in the IDENT/ENFORCE system.
<all>