[Senate Hearing 112-110]
[From the U.S. Government Printing Office]
S. Hrg. 112-110
BORDER CORRUPTION: ASSESSING CUSTOMS AND
BORDER PROTECTION AND THE
DEPARTMENT OF HOMELAND SECURITY
INSPECTOR GENERAL'S OFFICE COLLABORATION IN THE FIGHT TO PREVENT
CORRUPTION
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HEARING
before the
AD HOC SUBCOMMITTEE ON DISASTER RECOVERY AND INTERGOVERNMENTAL AFFAIRS
of the
COMMITTEE ON
HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
JUNE 9, 2011
__________
Available via the World Wide Web: http://www.fdsys.gov/
Printed for the use of the Committee on Homeland Security
and Governmental Affairs
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri ROB PORTMAN, Ohio
JON TESTER, Montana RAND PAUL, Kentucky
MARK BEGICH, Alaska JERRY MORAN, Kansas
Michael L. Alexander, Staff Director
Nicholas Rossi, Minority Staff Director
Trina Driessnack Tyrer, Chief Clerk
Joyce Ward Publications Clerk and GPO Detailee
AD HOC SUBCOMMITTEE ON DISASTER RECOVERY AND INTERGOVERNMENTAL AFFAIRS
MARK L. PRYOR, Arkansas, Chairman
DANIEL K. AKAKA, Hawaii RAND PAUL, Kentucky
MARY L. LANDRIEU, Louisiana SCOTT P. BROWN, Massachusetts
JON TESTER, Montana RON JOHNSON, Wisconsin
Donny Williams, Majority, Staff Director
Jason Bockenstedt, Majority Professional Staff
Seana Cranston, Minority Legislative Assistant
Kelsey Stroud, Chief Clerk
C O N T E N T S
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Opening statement:
Page
Senator Pryor................................................ 1
Senator Paul................................................. 2
WITNESSES
Thursday, June 9, 2011
Hon. Alan D. Bersin, Commissioner, U.S. Customs and Border
Protection, U.S. Department of Homeland Security............... 4
Charles K. Edwards, Acting Inspector General and Deputy Inspector
General, Office of Inspector General, U.S. Department of
Homeland Security.............................................. 5
Alphabetical List of Witnesses
Hon. Bersin, Alan D.:
Testimony.................................................... 4
Prepared statement........................................... 19
Edwards, Charles K.:
Testimony.................................................... 5
Prepared statement........................................... 30
APPENDIX
Chart referenced by Senator Pryor............................ 41
Chart referenced by Senator Pryor............................ 42
Questions and responses submitted for the record from:
Mr. Bersin................................................... 43
BORDER CORRUPTION: ASSESSING CUSTOMS
AND BORDER PROTECTION AND THE
DEPARTMENT OF HOMELAND SECURITY
INSPECTOR GENERAL'S OFFICE
COLLABORATION IN THE FIGHT TO PREVENT CORRUPTION
----------
THURSDAY, JUNE 9, 2011
U.S. Senate,
Ad Hoc Subcommittee on Disaster Recovery and,
Intergovernmental Affairs
of the Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:04 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Mark L.
Pryor, Chairman of the Subcommittee, presiding.
Present: Senators Pryor and Paul.
OPENING STATEMENT OF SENATOR PRYOR
Senator Pryor. I will call our meeting to order here. First
I want to welcome Senator Paul to his Ranking Membership of
this Subcommittee. This is the first time you have had a chance
to sit in as the Ranking Member, so thank you for your service
and for doing this, and I look forward to working with you.
I would also like to thank our panelists today and the
distinguished audience that is here today because many of you
all have been following these issues for a long time, and I
just want to thank everyone for their attendance.
We are going to examine the progress of the U.S. Customs
and Border Protection (CBP) in preventing corruption in its
workforce as well as the work of the Inspector General's office
at the Department of Homeland Security in investigating and
prosecuting those individuals who have been accused of
corruption.
Securing the United States' borders is a constant struggle
for the residents of the border States and for the government
officials who represent them. The Mexican cartels dominate drug
trafficking into the United States. Their operations and
methods are sophisticated, ruthless, and well funded. Their
notorious presence and power in Mexico is made possible by
bribery and corruption, intimidation, paramilitary force, and
murder. The impact of their operations in the United States has
been widespread.
This Subcommittee held a hearing in March 2010 at which we
learned that the cartels' operations are changing. They used to
rely mostly on stealth techniques and the United States
distribution network with operations in an estimated 230
American cities, according to the National Drug Intelligence
Center (NDIC). Three of those cities are in Arkansas.
The good news about the changing operations is that
heightened U.S. border defenses have put a squeeze on the
cartels. Unfortunately, these cartels are not easily deterred,
and they seek to regain an advantage by exporting to the United
States their experience and success in bribing and corrupting
government officials who can facilitate their business.
We must continue to do everything that we can to disrupt
and prevent these gangs from penetrating our communities. That
is why I am pleased that last year the Congress passed and the
President signed the Anti-Border Corruption Act of 2010. This
bill is designed to complement CBP's Workforce Integrity Plan
and prevent rogue border agents from being hired and retained.
The bill requires that CBP follow its own employment
policies requiring polygraph tests of all new applicants for
law enforcement positions. It also directs CBP to initiate
background checks on all backlogged employees within 6 months.
Hiring new Border Patrol agents will help secure our borders
only if these agents are truly committed to protecting our
country. I look forward to hearing from Commissioner Bersin on
the progress he has made in implementing this bill.
Another area of interest today is the ongoing concern about
the lack of true collaboration and information sharing between
CBP and the Inspector General's office when it comes to
investigating alleged acts of corruption. Fighting corruption
is vital to protecting our borders and securing our
communities. We must aggressively attack and investigate these
cases if we are going to end corruption within the U.S. law
enforcement agencies. However, we must conduct these
investigations in an efficient and collaborative way that leads
to results in the quickest way possible.
Based on reports, this does not seem to be the way we are
currently operating when conducting these investigations. I
also look forward to our witness comments in this area.
Our witnesses today are both very experienced individuals:
Commissioner Bersin of the CBP and Charles Edwards, the Acting
Inspector General (IG) of the Department of Homeland Security
(DHS). These gentlemen are leading much of the U.S.
Government's efforts to fight against drug-related corruption.
We welcome them. We look forward to their testimony, but first
I would like to recognize Senator Paul.
OPENING STATEMENT OF SENATOR PAUL
Senator Paul. Thank you very much, Mr. Chairman. Thank you
for coming to testify here today. I, like Senator Pryor, am
concerned about the lawlessness south of our border and the
extent to which that lawlessness creeps across the border.
The lawlessness has become so severe that people fear
traveling to Mexico. There are people who are now referring to
Mexico as a ``failed nation State.'' Is that an overstatement?
I do not know. Regardless, I am worried about the lawlessness
coming across our border.
Corruption of our law enforcement personnel is a problem,
but I am also worried about their physical safety. Our Border
Patrol agents, our sheriffs, and our citizens traveling across
the border are frequent targets of violence.
I am also concerned about legal immigration, the issuance
of visas, and whether or not we are monitoring those who we let
into our country. Just last week, in Bowling Green, the Federal
Bureau of Investigations (FBI) captured two alleged terrorists
who came to the United States on an asylum program. We admitted
last year 18,000 people from Iraq. This to me sounds like a
large number. I wonder if we are adequately monitoring these
people. Are we doing a good enough screening process?
This goes for a lot of other people who are coming here
legally. It is not just illegal immigration I am worried about.
I am worried about legal immigration, whether or not it is
being monitored properly.
We have 40,000 students coming to this country from all
over the world. Could some of them be potential attackers? The
people who attacked us on September 11, 2001, were here on
student visas. They were overstaying their visas. Was anybody
monitoring them? Are we overseeing the whereabouts of students
who are in our country now? Are we overseeing the refugee
process?
One of the men captured in Bowling Green had previously
been in jail in Iraq. His fingerprints were found on an
unexploded improvised explosive device (IED). His fingerprints
were in our database for 2 years before we were able to arrest
him.
I do not know that we are doing a good enough job. I think
as a country we are spending an amazing amount of resources on
screening everyone universally as if everyone is a potential
terrorist. I think that is a mistake. We are combing through
everybody's bank records. We are invading the privacy of
everyone in our country. We are doing pat-downs and strip
searches of 6-year-olds in our airports. But are we spending
enough time and resources targeting those who are potential
attackers of our country?
I would like to learn more about how the visa process is
working, whether or not we are overseeing the people who have
been admitted to our country, and whether or not there are
sufficient safeguards to protect our country from terrorists
who enter our borders legally. Thank you.
Senator Pryor. Thank you.
Sometimes we say that these people do not need any
introduction, and really on these two, you really do not. So I
am just going to be very brief and just say our first witness
today is Alan Bersin. He is the Commissioner at the U.S.
Customs and Border Protection. We look forward to hearing from
you, Mr. Bersin.
And then we will hear from our next witness, Charles
Edwards. He is the Acting Inspector General at the Department
of Homeland Security. Thank you very much for being here.
We have a timing system today, and I think we are doing 5
minutes on the opening statements. So if you could keep yours
to 5 minutes, we will submit your written statements for the
record, so those will be made part of the record. But we look
forward to hearing from you, and we look forward to a good
discussion afterwards. Mr. Bersin.
STATEMENT OF THE HONORABLE ALAN D. BERSIN,\1\ COMMISSIONER,
U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND
SECURITY
Mr. Bersin. Good morning, Mr. Chairman, Ranking Member
Paul. It is an important day for me to appear here before you
to update you on the progress that U.S. Customs and Border
Protection is making to combat corruption and maintain
integrity with our workforce.
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\1\ The prepared statement of Mr. Bersin appears in the appendix on
page 19.
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Senator Pryor, you and this Subcommittee have been an
important force in getting recognized the threat that we face
on the U.S.-Mexican border and generally in terms of the men
and women of CBP, now 60,000 strong, 48,000 of whom are on the
front line of protecting this Nation and its borders.
You recognize and we emphasize the commitment, bravery,
vigilance, and character demonstrated by the vast majority of
CBP agents and officers who indeed put their lives on the line
to protect this Nation.
Having said that, we recognize that there are bad apples in
the barrel, and it is our job to minimize those, and it is our
job to prevent corruption, detect it when it happens, prosecute
it after investigating it, in concert with other Federal
agencies and the United States Attorney's Office and the
Department of Justice (DOJ).
Unfortunately, CBP employees have and will continue to be
targeted by criminal organizations, as the Chairman suggested
and as the Ranking Member confirms. As we continue to see
successes in our efforts to secure our Nation's borders, our
adversaries continue to grow more desperate in their attempts
to smuggle humans and illegal contraband into this country.
Our most valuable as well as in some rare cases our most
vulnerable resources are our employees. I am here today to
candidly confront with you this vulnerability and the steps
that we are taking with your assistance and the assistance of
the Administration to mitigate this threat.
Recently I put forward my first Statement of Intent and
Policy as the Commissioner of CBP after a year of service
outlining specific and high-level propositions to be
incorporated into all aspects of CBP's interactions with the
public, with other law enforcement, and within our own
institution. That Statement of Intent and Policy dealt with
integrity. It outlined the absolute importance that we attach
to integrity in the discharge of our duties.
We pride ourselves on being a family. However, when one of
our own strays into criminality, we do not forgive him or her.
Such was the case with Martha Garnica, the Customs and Border
Protection Officer (CBPO) who betrayed her country, betrayed
her fellow officers, betrayed our trust, and now sits in
Federal prison for 20 years, as she so richly deserves.
We recognize that we need to confront this, and we are
doing so with the help of the resources and with the help of
the Anti-Border Corruption Act that this Chairman and this
Senate and Congress passed and the President signed.
Since October 2004, 127 CBP personnel have been arrested,
charged, or convicted of corruption. This breach of trust is
something that we do not stand for, and while 7 years and tens
of thousands of employees are besmirched by these evidences of
corruption, we take each and every one of them seriously.
The Anti-Border Corruption Act of 2010, which the Chairman
championed, is one of the first steps to address the issue of
corruption within the workforce before it can take hold. I look
forward to discussing with you this morning the steps that we
have taken in order to implement that act and be prepared to
meet its deadlines.
We recognize that there is work to be done. We are
committed to doing it, and I believe you will be satisfied that
we have made a good start along the path to being able to meet
these deadlines.
We also need, frankly, Mr. Chairman, to recognize that our
best defense against corruption are the men and women of CBP
themselves and, therefore, we have taken on the so-called Code
of Silence within our institution. When we ask our officers to
uphold the honor and integrity of their service, we add
security to the border.
Mr. Chairman, again, let me thank you for the Anti-Border
Corruption Act and the role you played in securing it. I look
forward to answering your questions and the Ranking Member's as
we proceed this morning. Thank you, sir.
Senator Pryor. Thank you. Mr. Edwards.
STATEMENT OF CHARLES K. EDWARDS,\1\ ACTING INSPECTOR GENERAL
AND DEPUTY INSPECTOR GENERAL, OFFICE OF INSPECTOR GENERAL, U.S.
DEPARTMENT OF HOMELAND SECURITY
Mr. Edwards. Good morning, Chairman Pryor, Ranking Member
Paul, and distinguished Members of the Subcommittee. I am
Charles K. Edwards, Acting Inspector General for the Department
of Homeland Security. Thank you for inviting me today to
testify about the Office of Inspector General (OIG's) role in
the effort to eliminate corruption in the CBP workforce, a
threat that strikes at the foundation of securing our Nation's
borders.
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\1\ The prepared statement of Mr. Edwards appears in the appendix
on page 30.
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The smuggling of people and goods across the Nation's
borders is a large-scale business dominated by organized
criminal enterprises. The Mexican drug cartels today are more
sophisticated and dangerous than any other organized criminal
group. They use torture and brutality to control their members
and intimidate or eliminate those who may be witnesses or
informants to their activities. The drug-trafficking
organizations also turn to corrupting DHS employees.
Border corruption impacts national security. A corrupt DHS
employee may accept a bribe for allowing what appear to be
undocumented aliens into the United States while unwittingly
helping terrorists enter the country. Likewise, what seems to
be drug contraband could be weapons of mass destruction, such
as chemical or biological weapons.
OIG has made investigation of employee corruption a top
priority. In accordance with the Inspector General Act of 1978
and the Homeland Security Act of 2002, the OIG exists as an
independent element within DHS tasked with coordinating,
conducting, and supervising investigations relating to DHS
programs and operations. These statutes vest the OIG with the
primary responsibility within DHS for investigating allegations
of criminal misconduct of DHS employees.
The IG statutory independence and its dual reporting
responsibilities to the Department and to the Congress make it
ideally situated to address employee corruption. Inspectors
General play a critical role in assuring transparent, honest,
effective, and accountable government. The organizational
independence of OIG criminal investigators, free to carry out
their work without interference by agency officials, is
essential to maintaining the public trust.
The DHS Management Directive plainly establishes OIG's
right of first refusal to conduct investigations of criminal
conduct by DHS employees and the right to supervise any such
investigations that are conducted by DHS Internal Affairs
components.
It is the OIG's policy to investigate all allegations of
corruption of DHS employees or compromise of systems related to
the security of our borders and transportation networks. The
Department's Internal Affairs offices play a useful role to the
OIG by enabling the OIG to leverage its resources.
CBP Office of Internal Affairs (IA) focuses on preventive
measures to ensure the integrity of the CBP workforce through
pre-employment screening of applicants, including polygraph
examinations, background investigations of employees, and
integrity briefings that help employees recognize corruption
signs and dangers. These preventive measures are critically
important in fighting corruption and work hand in hand with
OIG's criminal investigative activities.
The OIG has been working tirelessly in an honest attempt to
negotiate a cooperative working arrangement that will detail
CBP IA agents to the OIG to participate in the investigation of
CBP employees along with the Immigration and Customs
Enforcements Office of Professional Responsibility (ICE OPR).
These additional assets are especially necessary as the CBP
workforce continues to expand significantly while OIG remains
relatively flat.
DHS OIG works cooperatively with external law enforcement
agencies on border corruption matters involving DHS employees.
A key component of our investigative strategy is to leverage
our limited resources and share intelligence with other law
enforcement agencies. DHS OIG participates with border
corruption task forces in many parts of the country. These
cooperative relationships serve to ensure that different law
enforcement agencies are not pursuing the same targets which
duplicates efforts and places law enforcement agents' safety at
risk.
In conclusion, I appreciate the Subcommittee's attention
and interest in the work of the OIG to investigate corrupt
employees within the DHS workforce. We will continue to
aggressively pursue these investigations with all resources at
our disposal and in cooperation with law enforcement at all
levels to ensure that employee corruption does not jeopardize
our national security.
Chairman Pryor, this concludes my prepared remarks. I would
be happy to answer any questions that you or the Ranking Member
may have. Thank you.
Senator Pryor. Thank you, Mr. Edwards.
Let me start with you, if I may, Mr. Edwards. On this
chart,\1\ my understanding is you provided these numbers to the
Subcommittee as part of your testimony today, and I see a big
upswing in the number of investigations. Do you know why that
is? Why are you seeing a pretty dramatic spike there in the
number of investigations?
Mr. Edwards. Well, actually, there is a 38-percent increase
in complaints against CBP since 2004 from 3,112 to 4,162. These
increases are because we have the act that was passed last year
and we need to go back and CBP needs to do the background
investigations, the polygraphs of the employees, because we
find 60 percent of the employees who go through this do not
pass it because of the corrupt or criminal background in their
background. So there is a big spike in that.
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\1\ The chart referenced by Senator Pryor appears in the appendix
on page 41.
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Senator Pryor. OK. Say that again? As you are doing more of
the polygraphs, more and more is showing up?
Mr. Edwards. Well, we had a huge backlog----
Senator Pryor. Right.
Mr. Edwards [continuing]. And now CBP has gone back and has
done that. Without doing that, there was a huge spike.
Senator Pryor. I see.
Mr. Edwards. They still have not caught up. And we are
hoping by 2012 we are able to do 100 percent.
Senator Pryor. I got you. Perfect. That makes sense.
Now, there is also a pie chart\1\ that you provided to the
Subcommittee as part of your testimony, and in this pie chart
the navy blue, these are open, named CBP employee
investigations, and I think the ``named'' is important because
this does not mean it is all but it is one category of them, at
least. So there are 613 total, and the navy blue is for
corruption. It may be hard to see for the audience. That is 44
percent. And then red is civil rights, and the green is
suspicious behavior. So if you add the corruption and the
suspicious behavior together, you get 78 percent. Those seem
like alarming numbers to me. Could you talk about that for a
little bit?
Mr. Edwards. Well, corruption is abuse of public power for
private gain. Examples are bribery, smuggling, theft,
disclosure of sensitive law enforcement information. The
cartels, the drug business, organized criminal enterprises,
they are becoming very sophisticated, so they are trying to
infiltrate our CBP workforce, and, our investigations, we have
to get to the root of the problem. If we just go ahead and get
rid of that one employee, we still have not gotten to the
bottom of the problem. And, there is a huge percentage of it
unnamed, and we have recently established a Forensic Threat
Analysis Unit to get to the bottom of this.
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\1\ The chart referenced by Senator Pryor appears in the appendix
on page 42.
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Senator Pryor. OK. Did you want to comment on that, Mr.
Bersin?
Mr. Bersin. Mr. Chairman, I think as we are openly
confronting the issue and the challenges that we face, and I
want to point out and I commend the OIG as well as CBP IA and
the FBI in terms of actually the number of investigations that
have started. I think we have to recognize, though, and put in
perspective that it is the kind of emphasis that the agencies
are giving to the problem, that put more resources into the
problem, that begin in the first instance to see an increase in
the number of cases that are open. So more cases have been
referred by CBP IA to the JICMS, the Joint Information System,
and, in fact, those cases are being taken at a greater rate by
DHS OIG for which we are thankful. But this is an issue of
attention and focus and resource allocation.
Senator Pryor. Right. Let me followup on that, if I can,
Mr. Bersin, because one of the things that you have had a
really large backlog on is your periodic reinvestigations, and
I think you went through some numbers in your opening
statement. Could you go through those again in terms of how
many periodic reinvestigations you have completed so far.
Mr. Bersin. Yes, sir. We recognize that under the Anti-
Border Corruption Act we are obliged as a matter of law to
complete the period reinvestigations by the end of 2012. We
will meet that objective by July 2012. We also understand the
polygraph responsibilities. Every employee pre-employment will
be polygraphed as of January 2013.
Where we stand today--and as we have been working and
keeping your staff and you informed of this--15,197 periodic
reinvestigations previously backlogged, all of those have been
initiated. And to be precise, as of May 31 of this year, 5,386
periodic reinvestigations have been adjudicated; 9,219 are
pending investigation or adjudication.
What we have done to be sure that we are online to meet
this, notwithstanding the hiring requirements of the southwest
border supplemental bill, is to have the Personnel Security
Division of Internal Affairs that handles this have devoted the
bulk of their resources to these periodic reinvestigations.
So while the task has been complicated by the additional
hirings that the supplemental bill have provided us, we do not
complain about those, but it does add another 1,250 additional
cases, so to speak, to the backlog. But we are on target, Mr.
Chairman, to meet the requirements of the act.
Senator Pryor. How many do you think you will have
completed by the end of 2011?
Mr. Bersin. We have in the area of 800 that are in
adjudication now, so I suspect that we are talking between now
and the end of the Fiscal Year perhaps 1,200. So we have a fair
amount to do, but we expect that we will be online to meet the
end of Fiscal Year 2012 deadline.
Senator Pryor. If you do the reinvestigations and the
polygraphs, what percentage of the employees turn up with an
issue? What percentage are you catching?
Mr. Bersin. Well, in the last number, in the one that was
referenced by my colleague, the Inspector General, was that 60
percent present an issue. It depends on the population that you
polygraph. And the nature of the issue differs, and what we are
attempting to do because of the expense involved in
polygraphing is actually to have a process in which we can see
rise to the top those applicants who are less likely to face
issues in a polygraph examination. But the number will depend
on the actual population of applicants that you put through the
examination.
Senator Pryor. So you are not saying those 60 percent is
the number of folks that are showing corruption. You are just
saying they are showing some sort of----
Mr. Bersin. Absolutely not.
Senator Pryor. What is your sense of the number of
applicants who somehow get tagged with corruption? Do you know
that?
Mr. Bersin. I could not give you a specific number. I will
tell you, in the course of reviewing these, we do come across
cases in which people reveal themselves to either have criminal
backgrounds or links to organized criminal elements based in
Mexico or gangs based in the United States, which disqualifies
them. But I think it would be a disservice to the applicant
pool to suggest that this is a large or even significant
percentage.
What we have to do is be sure that we have the filter that
catches each and every one of those. But particularly given my
background in education, I do not think that this is a
generation of young people that presents generally more
problems than my generation did.
Senator Pryor. I am going to ask one more question, and
then I will turn it over to Senator Paul here in just a second.
This is a question really from another context, and that is the
Federal Motor Carrier Safety Administration (FMCSA), is doing a
pilot project for Mexican trucking companies to bring materials
in, and I really have two questions for you.
One, have you heard from FMCSA on this? And are you all
taking any special precautions or any special procedures for
these Mexican-owned trucking companies bringing goods into the
United States?
Mr. Bersin. Mr. Chairman, this is the pilot program to move
away from the drayage issue, which will permit Mexican long-
haul carriers to actually cross the border, not have to
reconnect, and continue on into the United States.
In the first instance, this is a Department of
Transportation (DOT) safety certification issue. We, of course,
will be involved in clearing and inspecting cargo containers
contained on those trucks, and we are keeping abreast of
developments as this pilot unfolds. But it is a safety issue in
the first instance, and then it presents the same issue of
inspection, targeting, risk management that we do with regard
to each of the 27,000 trucks that enter this country every day.
Senator Pryor. The reason I am asking, of course, is
because if the Mexican drug cartels are successful in
corrupting local officials, police, judges and the military, it
seems to me pretty likely that they could also corrupt these
Mexican trucking companies, and they could just bring matters
in, unless we pay special attention to them. So that would be a
concern of mine.
The other question I have is something that I talked with
DOT about. The challenges you have had in your agency about
finding corruption there and the drug cartels trying to
actively, in some cases successfully, corrupt our agents there
and I have asked them to reach out to you about some of the
lessons you have learned in terms of making sure that their
workforce that is going to be down on the border maintains
their integrity.
Have they had a chance to reach out to you yet?
Mr. Bersin. We have not specifically talked, but we do work
together on the interagency policy coordination on the border,
and I will reach out to my colleague at the Department of
Transportation.
Senator Pryor. That would be great. Mr. Paul.
Senator Paul. Mr. Bersin, do you keep a database on all
those who are visiting our country on a visa, a travel visa or
student visa?
Mr. Bersin. Senator Paul, what CBP does in terms of
admissibility of everyone who crosses into the United States
every day--and we have a million people coming into the United
States every day whose admissibility is handled by CBP officers
at airports, land ports, and seaports. So we have a record of
every person entering into the country and the basis on which
he or she does so. Yes, sir.
Senator Paul. OK. Do you also have a record of when they
leave?
Mr. Bersin. We do not have a biometric exit system in place
yet. We have been working within DHS to look at the exit
system, and there have been a number of pilots that have been
handled by US-VISIT, TSA, and CBP in terms of coming up with a
recommendation as to how an exit system can be reliably
handled, recognizing that the airport context is one that is a
manageable environment. The land borders are actually the
environment that present the greatest challenge to our exit
verification.
Senator Paul. You have to go through Customs on the way
into the United States. Do you go through Customs when leaving
the country?
Mr. Bersin. Only when we do outbound inspections, which we
are doing on the U.S.-Mexican border in keeping with our new
relationship with Mexico. But we do not for the most part do
exit except on a surge basis in places like the northern
border.
Senator Paul. So there are a million people coming into the
United States every day from other countries.
Mr. Bersin. Yes, sir--well, and returning U.S. citizens. It
is a mix.
Senator Paul. Right. The thing I am still concerned about
is, once people enter the country, how do we know if they are
overstaying their visas? Do we know if they are obeying the
rules of their students visas? Under whose purview does that
fall? Who is checking that? Is that ICE? Who is checking to see
whether someone overstays their visa?
Mr. Bersin. This would be a responsibility of DHS in terms
of Homeland Security Investigations on visa overstays. But this
is an issue that, as you suggested in your opening remarks, has
to be handled on a risk management basis. This has to be an
ability to identify high-risk entrants into the country because
we do not, obviously, have the resources nor should we be
devoting equal resources to every one of those million people.
Senator Paul. Those million people may also include a lot
of U.S. citizens who are just coming back from a long-time trip
to London so that is part of the million. Can you break the
million down further? How many of them are visiting us from
another country?
Mr. Bersin. I will supplement the record. I cannot give
that off the top of my head.
INFORMATION FOR THE RECORD
fiscal year (fy) 2010
Total Passengers and Pedestrians 352,731,093
Total Immigrants Processed (LPR) 53,954,941
Total Non-Immigrants Processed 167,383,751
Total Non-US Citizens Processed 221,338,692
Total Inadmissible Aliens 231,197
Senator Paul. Yes, I think that is what we need to do. If
you were looking at a million entrants, you would find out if
500,000 of them are U.S. citizens traveling on business.
Obviously they would not need as much scrutiny. Entrants from
Middle Eastern countries might need a little more scrutiny, but
we would have to do good police work to do that. Once you
narrow that down, we need to know who comes in and who leaves,
and the difference between the two is those who are overstaying
their welcome. We live in such an electronic age that you would
think even if you are driving across the border to or from
Canada, that would be entered into a data bank and should be
easily reconcilable with who is overstaying their welcome here.
Since September 11, 2001, we have begun to treat everyone as a
potential terrorist. Universally we have begun scrutinizing
everybody to the nth degree, instead of doing what I think
would be just good police work. It would be less expensive and
less intrusive into our privacy to focus our efforts on the
people who did attack us and who continue to attack us, instead
of focusing on U.S. citizens.
Mr. Bersin. The essence of our system at CBP and across DHS
increasingly is risk management. It is exactly that. It
recognizes that we have limited resources and that we have to
do targeted attention. And after making a risk assessment in
terms of trusted shippers, high-risk shipper, trusted
travelers, high-risk travelers, we then have to segment the
traffic to permit us to deal with it in sequence.
But just to indicate that your general point I could not
agree with more, but when we look at a Faisal Shahzad, who is a
U.S. citizen, naturalized, we have to recognize that this risk
assessment system cannot just be cut into certain categories.
Senator Paul. Yes, it is not just citizenship status. If
you are a U.S. citizen and you have been to Yemen three times
in the last year and you are a not a businessman who has
business, or a family, in Yemen, that might be a red flag for
us. You are right. It is not as simple as what your religion
is, the color of your skin, or any of that. It is more
complicated. There is a whole host of figures that we need to
look at and then excluding the people who are traveling
frequently on business. It is the same what we are doing in our
country, though, with the TSA. How many people fly every day
within the United States? A million or more fly every day. I
think we are wasting resources and not doing good enough police
work. We are distracted from the real police work we could do
because we have to treat everybody universally as a potential
terrorist.
I would recommend that at some point in time--and it sounds
like this is an ongoing process that we do talk about
monitoring who comes in and who leaves, and it should be very
easy to determine from that. I do not get a good feeling that a
decade after September 11, 2001, we know where everyone in the
country is who is on a student visa, how often they are being
checked, and whether or not they are in the country and obeying
the rules of their entry.
The other question I have--I do not know if you know the
answer to this or not--is: What percentage of visas approved by
the State Department and issued in another country, once they
come through Customs are then rejected? Because that happens,
right?
Mr. Bersin. Yes, when a visa is presented at a point of
admission, there are circumstances in which the CBP officer
will refuse admission, and based on information that would be
available and would alert the officer, the visa can be set up
for revocation.
I would need to supplement in terms of the millions with
which we deal what the actual percentage of revocation is.
Senator Paul. Yes, I would like to know. It is important to
me to know not the exact number but the percentage. If you are
rejecting 5 percent of State Department visas, maybe that means
you are just doing a good supplementary job to the State
Department. However, if you are rejecting 30 percent, maybe it
means the State Department is not doing a very good job. I
don't want to point fingers, but we need to ask these
questions, which gets us back to all these refugees and
political asylum people we are letting in from Iraq. We need to
know who is approving them, what kind of screening process they
undergo.
Now, do you have anything to do with the refugee admittance
into our country?
Mr. Bersin. CIS handles the status issues. We would be
involved in the initial admissibility issues, as we would be
with anyone presenting themselves for admission into the United
States.
Senator Paul. So they go through the State Department first
and then are subject to screening by Customs and Border
Protection when they come through the airport, you mean?
Mr. Bersin. To the extent that--yes, if there is an
admissibility issue. But the actual refugee status would be
State Department and a combination of Citizenship and
Immigration Services at DHS.
Senator Paul. Right. So Customs and Border Protection is
not actually actively doing extensive background checks on
individuals. That is something the State Department is
supposedly doing before they get to you.
Mr. Bersin. That is correct, Senator. But what we rely on
is information that would give us an ability to make a risk
assessment with regard to any of those people based on the
collected data and databases available to the U.S. Government.
Senator Paul. All right. Thank you very much. If you can
find any of that other information, I am interested in having
it. I think there is a big picture here that we still need to
be pursuing as far as the safety of our country is concerned.
Thank you.
Mr. Bersin. Thank you.
Senator Pryor. Thank you, Senator Paul. Good questions.
Let me go ahead and dive into a little bit of a follow-up
from previous hearings and other matters that we have worked on
here together. I am interested in the way you two see your
specific roles in investigations, and my understanding is--and
I have talked to both of you and both your offices about this.
In the past there has been some, I guess I would say,
friction--or I do not know if I would say gaps, but some
friction, some disagreement about what the roles should be. And
my understanding is that you all have worked hard to try to
address these.
I also understand that you may be fairly close to doing
some sort of written agreement on what your roles would be, and
I would like to get a status report on that. Mr. Edwards, do
you want to start there?
Mr. Edwards. Sure. Well, there are three reasons. First,
the Inspectors General play a critical role in assuring
transparency, honest and effective and accountable government,
both personal and organizational independence of OIG's
investigators to carry out the work. Second, it is the public
trust and also, third, avoiding duplication.
The statutory authority that IG has, we do all 100 percent
of the criminal investigations on all allegations. Our position
is CBP IA plays a complementary role by--and even Congress
recognized that with the Anti-Border Corruption Act of 2010.
CBP does the integrity work by doing the pre-employment
screening of applicants, including polygraph and background
investigations.
Both myself and Alan have been working together trying to
come up where CBP IA agents could work--could be detailed to
OIG and work under the OIG's supervision to work some of the
cases. That gives Commissioner Bersin the information that he
is looking for, and the agreement that I, in fact, last night
signed and sent over--I am waiting still for Alan to sign it,
because I have to look into my independence, the statutory
authority, and the management directive where OIG has the lead.
I think Alan recognizes that, but we just have--from his point
I think he still has some differences, but I have done my part.
Senator Pryor. OK. Mr. Bersin.
Mr. Bersin. First I should say, Senator, that what a
difference 3 months makes. So, yes, I think it is fair and the
law enforcement professionals both in OIG and IA will know that
I say this respectfully when I say that there was more than
tension and friction. There was outright confrontation and an
unacceptable situation. And in most situations like this, it
makes no sense to try to fix the blame but, rather, fix the
problem. And I want to compliment both offices for endeavoring
to do precisely that.
In April of this year, the Inspector General reached out
very directly and said that he wanted to discuss this issue and
he wanted to see that working together we could actually
reverse the history of the last few years, which, again, was a
function of people passionate about their duties and dedicated
public servants who saw the world in a different way. I think
we have made huge strides toward that goal.
In January 2011, as the Senator knows, we entered into an
unprecedented agreement within DHS with ICE, with Homeland
Security Investigations, in which for the first time CBP IA
agents are detailed into ICE offices and are working to
supplement the resources of ICE, ICE's Office of Professional
Responsibility, to work down the investigative caseload, and we
have seen tremendous progress in the first 5 months of that
collaboration.
When you put law enforcement professionals together in the
field to work on a case, the work gets done without the kind of
friction that often attaches to turf battles that occasionally
surface in Washington.
What we have seen already in the ICE-CBP collaboration is
that the number of cases being worked have been decreased from
160 to 127, and we have seen the clearing up of cases because
of the additional resources. We recognize in that agreement,
that memorandum of understanding with ICE, that the ICE lead
case agent has supervisory responsibility. We have engaged in
thus far I think very successful negotiations with OIG. Our
staff members have brought us to the positive brink, so to
speak, of entering into a similar agreement in which CBP
acknowledges the responsibilities under the management
directive of OIG and will be, I believe, welcomed into the OIG
investigative effort as a full law enforcement member. That can
only be to the good of the American people and to challenging
and taking on the threat of corruption.
So I think we are close, and I think we can overcome the
remaining issues. Those issues, frankly, are not so much about
the relationship between the CBP and OIG but, rather, the way
in which OIG could be welcomed back within--recognizing its
responsibilities under the Inspector General Act and its
responsibilities under the DHS Management Directive, could be
welcomed back into the Border Corruption Task Forces that exist
in 22 sites in the United States that have been organized by
the Federal Bureau of Investigation and the Department of
Justice and are a critical element in a whole-of-government
approach to taking on border corruption.
Those issues need to be worked through. That happens to be
a tripartite negotiation, and I am confident that over time we
can address it and expect that we can overcome the issues. But
that is where the issues are. That is where the remaining
issues are in terms of closing off a chapter that all of us
want to put behind us in terms of tension between CBP IA and
DHS OIG.
Senator Pryor. Mr. Edwards, you said you sent a draft
agreement over last night?
Mr. Edwards. Yes.
Senator Pryor. Is it your intention that the draft
agreement would cover all the outstanding issues----
Mr. Edwards. Yes.
Senator Pryor. Or are there still issues beyond that?
Mr. Edwards. Right, well, first I must commend Secretary
Janet Napolitano for her leadership in bringing us together.
She has given pretty good advice to us to get this thing
resolved.
I have taken into account our independence, the statutory
authority that we have. At the same time, we do not have the
resources necessary to--because we have to have one DHS. There
has to be one face. And I recognize that, and my staff has been
actively working with Alan's staff, and we have overall an
agreement, but there is still a sticking point, because we feel
that if you are working along with us and you are having
visibility to 98 percent of the cases, and then along with
Border Corruption Task Force (BCTF) you are still there, then
it is a duplicative effort.
The reason we pulled out from BCTF last year was because it
goes against the whole OIG statutory authority. Everybody is
equal partners, but the statutory requirement says that we
supervise, lead the investigations, and the FBI was the only
lead. So we went back and for the last several months we have
been working with--we have a similar situation in San Diego
that for several months we worked together with the U.S.
Attorney there and as a joint leadership between the FBI and
OIG. The talks for a couple of months went ahead, and the U.S.
Attorney agreed with us. But all the parties did not agree to
that, so the U.S. Attorney has withdrawn from BCTF and has
taken our cases directly.
But having said that, there are several instances
throughout the country, even though we have not signed an
Memorandum of Understanding (MOU) with the FBI on the BCTF, we
are still working with them. So we are hopeful that we can
resolve this and have CBP IA agents work under us and bring
down the caseload.
Senator Pryor. From my standpoint this is just too
important to get into a turf battle on. What you are talking
about here is the security of our country and to make sure we
do not have the corruption that may be rampant in other
countries, but it is rare here. I just hope that you all will
continue to work together to get this resolved.
I have no idea, of course, what is in your proposed
agreement, but, Mr. Bersin, certainly I know you just got it
last night, so it is not fair to ask you about it today. But I
hope that you all will look at it and continue to work to some
understanding and get some agreement as quickly as possible.
Mr. Bersin. I am confident that we will continue to do
that. As the Inspector General indicated, Secretary Napolitano
has indicated very compellingly to both of us and to our
offices that she expects a resolution. And as I said, I think
for the most part we have a resolution as between our offices.
What we need to do now is to see if we cannot take that spirit
and create a whole-of-government approach. I do not think that
it makes sense to see us in competition with the Department of
Justice but, rather, to knit the Department of Justice and the
Department of Homeland Security into a satisfactory arrangement
that maximizes our joint approach to the threat of border
security and the challenges to that security posed by
corruption.
Senator Pryor. I think if both of you are committed to
working together and getting this done and closed I think that
goes a long way. And like you, I appreciate Secretary
Napolitano and her leadership on this. She and I have talked
about this, and I know that she is concerned, and she knows I
am concerned. So if you all can get this done as quickly as
possible, I think it will do nothing but be a good thing for
the country.
Let me ask just a few more questions--Mr. Bersin, let me
start with you--on the current status today of the new hires
receiving polygraphs. My understanding is you are not yet at
100 percent on the new hires. What percentage are you? And when
will you get to 100 percent?
Mr. Bersin. In Fiscal Year 2011 we have polygraphed 22
percent of the applicants, and we currently are implementing a
business plan that would move us from 35 polygraphers inside
CBP to 52 so that we can meet the January 2013 requirement set
forth in the Anti-Border Corruption Act.
We have solicited help from other Federal agencies in terms
of providing polygraphers to us, and I am pleased to report to
you that, as expected, the Federal law enforcement community
has reacted by providing 20 additional polygraphers so that we
can ramp up consistent with the business plan we have outlined.
Senator Pryor. Would that just be temporarily to help you
with the backlog? Or you would retain those permanently?
Mr. Bersin. Those 20 would be temporary and help us until
we built up our in-house capacity, Mr. Chairman.
Senator Pryor. Right. And is there a concern about your
backlog actually increasing at the beginning of 2011, 2012, and
2013?
Mr. Bersin. The challenge that we have is we have a fairly
stable attrition rate, so we can project with some degree of
certainty how many Border Patrol agents and how many CBP
officers we are going to need to replace by reason of
attrition.
Where the challenges come in this year--but it is a
challenge we welcome because it provides more border resources
to accomplish the mission--is that the southwest supplemental
bill, as you know, of $600 million provided that we hire an
additional 1,000 Border Patrol agents and 250 CBPOs. The Fiscal
Year 2012 budget provides an additional 350 CBP officers. So
all of this gets added on to the attrition number that we
replace each year, but that business plan that we have
developed on polygraphers and on getting our periodic
reinvestigations done, as well as the new background
investigations, accounts for that bulge.
Senator Pryor. Once you get your backlog down to where it
needs to be, do you see this as the backlog going away
permanently? Or do you think it will rise again in the out-
years?
Mr. Bersin. Senator, remember, CBP doubled in size between
2004 and 2010, so what we are seeing in the issue of backlog
really arises from this kind of jump in the size of the
workforce, so that by the end of this year we expect to see
5,000 more periodic reinvestigations required because every 5
years we are required to do these investigations. So we will
have to live through a period where, because of that steep
slope in growth, we will see that same steep growth in the 5
years when the periodic reinvestigations are due, absent
whatever attrition has taken place.
What we need to develop within our agency is over the
course of time we are going to need to even that out, and we
are going to need to make some adjustments by having some
periodic reinvestigations done in 3 years, some in 4 years,
some in 5 years until we can actually get a much more even flow
into internal affairs.
Senator Pryor. Yes, that makes sense.
Well, listen, I have some other questions. I think what I
will do is submit those for the record.
I appreciate both you all being here today, the fact that
you are doing a better job and both of you are saying you are
doing a better job in working together and coordinating and not
having these internal struggles, I know we are not completely
done yet, but I hope sometime soon we will get that written
agreement done and everybody will be on the same page. So I
want to thank you all for being here today.
Like I said, we will have some additional questions for the
record, and what we will do is we will keep the record open for
14 days, and as Members of the Subcommittee may submit those,
they will get them to Subcommittee staff, and we will get those
to you, and we would just appreciate you getting those returned
to us.
Thank you very much for being here, and I want to again
thank Senator Paul for his time here, and I look forward to
working with him on this Subcommittee.
Thank you very much.
Mr. Edwards. Thank you.
Mr. Bersin. Thank you.
[Whereupon, at 10:59 a.m., the Subcommittee was adjourned.]
A P P E N D I X
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