Prepared Statement of Ranking Member Grassley of Iowa

U.S. Senate Committee on the Judiciary

Hearing on "Oversight of the Department of Homeland Security"

Wednesday, April 25, 2012

Mr. Chairman, oversight is a critical function and a constitutional responsibility of the legislative branch.  Hearings like this one are an avenue for Congress to raise questions, concerns, and suggestions for improving government functions.  This hearing should also be an avenue for us to evaluate how the Department of Homeland Security (DHS) carries out its mission.  It should also be an opportunity for the department to take responsibility for its actions and policies.

Before I begin to discuss the issues that pertain to this committee, I would like to voice frustration at the non-responsive letters I have received from DHS.  In fact, 99 percent of the time, when I write to the Secretary, I don't get a response directly from her.  The responses come from the Office of Legislative Affairs.  But more frustrating is that my questions are rarely, if ever answered.  Unbelievably, the Secretary just responded to questions we posed at the last Judiciary Committee oversight hearing, which took place in October of last year.  I hope the Secretary will respect the oversight role that some of us in Congress take seriously.  The department needs to be held accountable to Congress and to the American people, and it should be forthcoming so we can take steps to ensure the government is acting appropriately in carrying out our laws.

U.S. Secret Service INVESTIGATION

We continue to learn more each day about the ongoing investigation into agents of the U.S. Secret Service who were removed from Colombia following allegations that they had foreign national prostitutes in their rooms.  While I commend Director Sullivan for immediately removing these agents from Colombia and for initiating an investigation into this matter, more work remains.  For example, the Inspector General for the Department of Homeland Security needs to be involved to make this investigation impartial and credible.  The Secret Service has a long and distinguished history.  This entire incident is a black eye for an agency full of hard working and dedicated agents and officers.  This matter needs to be resolved soon given the serious national security issues associated with this alleged conduct.

At the beginning of his administration, President Obama released a memorandum entitled "Transparency and Open Government" and stated, "My administration is committed to creating an unprecedented level of openness in government."  We have seen time and again that this administration has contradicted that goal set by President Obama.  However, it's my hope that the White House will provide details to Congress about the internal review that took place last weekend with regard to the Secret Service and White House Office of Advance.

According to the White House spokesman, that investigation was conducted by the White House Counsel's Office, despite the fact that on Friday the White House apparently didn't see the need to look into this further.  This raises a lot of questions about how deep an inquiry was conducted, especially given it was completed in just two days.  I want to know if the investigation involved pulling any hotel records in Colombia or whether we are to simply take the White House at their word.  This is not a fishing expedition; it is a logical extension of the Secret Service investigation.  Given the serious national security concerns that any vulnerability in the President's protection could come from having unauthorized guests, we need to get to the bottom of this and the White House should cooperate immediately.  I look forward to hearing from the Secretary about her views on this matter and what steps she has taken to help the Director and Inspector General get to the bottom of this matter.

IMMIGRATION

Today's hearing is an opportunity to assess this administration's immigration policies, and to raise questions about whether these policies are consistent with the laws on the books.  I have serious concerns not only about policies put forth by the Department, but also the manner in which such policies have been rolled out.

The President announced a new campaign slogan called "We Can't Wait" to justify why his administration continues to circumvent Congress and the democratic process.  The administration continues to put out memos and directives that have not gone through the rule- making process.  I got my first glimpse into this campaign when I uncovered the memo titled, "Administrative Alternatives to Comprehensive Immigration Reform."  For years, the administration has been intent to act unilaterally, and in doing so, they have disregarded the rule of law.

Let's consider the President's immigration policies in the last two years alone.

In a departmental memo last March, ICE Director John Morton outlined new enforcement priorities and encouraged the use of "prosecutorial discretion" for illegal aliens who did not meet these priorities.  The memo prescribed guidelines for limiting the detention of certain illegal aliens.  Then, in a memo sent out in June of 2011, Director Morton discouraged ICE agents from enforcing immigration laws against certain segments of the illegal alien population, including aliens who essentially qualify for the DREAM Act.

Last August, Secretary Napolitano announced a case-by-case review of all aliens currently in or who will be entering deportation proceedings in order to determine who will be granted administrative amnesty.  The Secretary claimed that this process would allow the government to direct resources at higher priority cases.  This so-called "pilot" program has been carried out in Baltimore and Denver, and will expand to seven additional immigration courts.

This year, U.S. Citizenship and Immigration Service unveiled a new policy allowing certain aliens to bypass the statutory 3 and 10 year bars on inadmissibility.  Generally speaking, the 3 and 10-year bars were created to deter illegal immigration and marriage fraud.  Yet, the administration wants to ignore the law that Congress passed in this regard, and provide waivers for an untold number of people who would normally be subject to the bars.

In January, the President issued an Executive Order to increase tourism to the United States, which would allow visa applicants to undergo less scrutiny by consular officers.  Prior to September 11, 2001, consular officers were allowed to waive an interview for a visa applicant seeking entry into the United States.  Sadly, only two of the nineteen hijackers had been personally interviewed by the U.S. government to get their visa.  As a result of 9/11, Congress established that all visa applicants be required to go through the interview process, with limited exceptions.  The tourism initiative announced by the President would allow officers to waive in-person interviews for individuals reapplying for temporary admission to the United States. The law was written to specifically limit any exceptions to the in-person interview.  Once again, the administration is blatantly ignoring the safeguards that Congress put in place to prevent another terrorist attack.

In addition to implementing several initiatives that disregard the rule of law, the administration has taken an inconsistent position on state and local governments that enact their own immigration laws and ordinances.  The administration has filed suit against Arizona, South Carolina, Utah, and Alabama.  Moreover, in retaliation for Alabama's state law, the department halted the implementation of Secure Communities.

I find it frustrating that the Administration has challenged several states for passing laws that aim to protect their citizens while essentially turning a blind eye to jurisdictions that actively promote safe harbor policies.  If the administration truly believes immigration law is only to be enforced by the federal government, as it has argued before several courts, it should adhere to that position and consider taking action against jurisdictions that actively thwart effective federal enforcement of the laws.

Then there are policies that leave taxpayers footing the bill for benefits to people who are here unlawfully.

In February, ICE Director Morton announced that illegal immigrants residing in the country would have a lobbyist at headquarters to "serve as a point of contact for individuals, including those in immigration proceedings, NGOs, and other community and advocacy groups, who have concerns, questions, recommendations or important issues they would like to raise."  The rationale behind this new position is not very clear, and I'd be interested in learning more from the Secretary about what this person does on a day-to-day basis.

Also in February, ICE announced changes to its detention standards, providing more accommodations and benefits to illegal aliens.  For example, aliens will now receive physical education classes and internet access.  And, taxpayers will help pay for costs associated with abortions and transgender hormone therapies.  Also, taxpayers will be footing the bill for luxuries and services that are not afforded to other criminals.

I'd also like to hear from the Secretary about the state of the border.  Americans have long been demanding that the federal government control its borders.  Yet, the President announced last week that 900 of the 1,200 National Guard Troops at the border will be sent home.  Taxpayers are left questioning the priorities of this President when illegal aliens get an advocate in Washington, and when resources from the border are diverted to plush detention facilities.

I also remain concerned about the "Get to Yes" philosophy that U.S. Citizenship and Immigration Service has espoused.  In January, an Inspector General's report found that line officials at USCIS are pressured to approve applications by supervisors.  The report says that a quarter of the immigration service officers interviewed felt pressure to approve questionable applications, and 90 percent of respondents felt they didn't have sufficient time to complete interviews of those who seek benefits, concluding that the speed at which these applications must be processed leaves ample room for error and leaves the U.S. open to national security dangers.  I plan to ask the Secretary about this pressure, including information that has come to my attention about a particular case highlighted by the mainstream media.  I want to know if adjudication decisions are being reversed after sympathetic news reports.

FREEDOM OF INFORMATION ACT (FOIA)

I also have concerns about how the department is treating citizens who oppose the administration's policies.  U.S. citizens who oppose the administration's policies should not be viewed or treated as "enemies."  And they shouldn't become the subject of government monitoring because they oppose the administration's policies.

I am troubled by news reports that the department is monitoring citizens who speak out against the Obama administration's policies and, in particular, its immigration policies.  According to reports, a review of a 2011 reference guide for Homeland Security analysts reveals that DHS is tracking opponents.  It appears that the DHS may be directing its analysts to identify and monitor media reports that reflect adversely on the DHS, and to track reports on the administration's policy changes in immigration, and the term "illegal immigration" in particular.  This monitoring goes beyond reviewing news stories.  It apparently includes monitoring social media, such as Twitter and Facebook.

I have to question why the department is gathering this information on U.S. citizens.  And I have to ask how far the information gathering goes and what the department is doing with this information?

These reports renew my concerns about how the DHS treats requesters of information under the Freedom of Information Act (FOIA).

Perhaps the most dramatic and troubling departure from President Obama's vow to usher in "a new era of open government" was revealed in Homeland Security e-mails obtained by the Associated Press (AP) in July of 2010.  According to the AP, in July 2009, in connection with requests under the FOIA, the department introduced a directive requiring a wide range of information to be vetted by political appointees.  Career employees were ordered to provide Secretary Napolitano's political staff with information about the people who asked for records and about the organizations where they worked.  According to the AP, anything related to an Obama policy priority was pegged for this review.  Also included was anything that touched on a controversial or sensitive subject that could attract media attention.  Anything requested by lawmakers, journalists, activist groups or watchdog organizations had to go to the political appointees.

Under the FOIA, people can request copies of records without specifying why they want them and are not obligated to provide personal information about themselves other than their name and an address where the records should be sent.  Yet political appointees at the DHS researched the motives or affiliations of the requesters.

On March 30, 2011, the House Committee on Oversight and Government Reform released its 153-page report on its investigation of the department's political vetting of FOIA requests.  The committee reviewed thousands of pages of internal DHS e-mails and memoranda and conducted six transcribed witness interviews.  It learned through the course of an eight-month investigation that political staff under Secretary Napolitano had exerted pressure on FOIA compliance officers, and undermined the federal government's accountability to the American people.

The department's political screening of FOIA requests is disturbing and I continue to have concerns about it, even though the department maintains that it has stopped.

MANagement at DHs

A serious, but often overlooked matter that we all should be concerned with is management of the federal government agencies we oversee.  Management problems at the top of an agency can trickle down to problems in the field.  As the buck should stop with the Secretary, I think it is worth noting that last month, for the sixth year in a row, DHS was awarded an abysmal score by the Partnership for Public Service's Best Place to Work.  DHS ranked 31 out of 33 federal organizations.  This included a four point drop from last year.  DHS placed in the bottom three spots in almost every category evaluated, and placed dead last in "effective leadership."  These are poor scores that indicate serious problems with management at DHS.  Effective leadership starts at the top and I want to hear from Secretary Napolitano what she is doing to fix this leadership deficiency at DHS.

DHS Role in Addressing Cybersecurity

Congress is currently debating legislation to enhance our national capability to protect and defend against cyber-attacks.  There are a number of different proposals pending before the House and Senate that contain varying policy approaches.  There are a number of areas of agreement across party lines on certain provisions, including information sharing, research and development, criminal law reforms, and updating the Federal Information Security Management Act (FISMA).  However, the biggest point of contention remains whether to increase the size of the federal government by adding new regulatory powers for oversight of cybersecurity to the mission of the DHS.  I strongly oppose any expansion of DHS's power.  The documented failures of the Chemical Facility Anti-Terrorism Standards (CFATS) should be a clear warning that the department is simply not up to the task it was created to do.

In October 2006, President Bush signed the Department of Homeland Security Appropriations Act of 2007, which provides DHS the authority to regulate the security of high-risk chemical facilities.  To implement this authority, in 2007 DHS issued the Chemical Facility Anti-Terrorism Standards Interim Final Rule (CFATS Final Rule).  These regulations required a number of regulated industries, including chemical manufacturers and distributors, to prepare site security plans (SSPs) to determine whether a facility would fall under DHS's regulatory authority.  These SSPs were expensive and DHS estimated that compliance with the regulations could cost up to $5000 per site, just to complete the SSP.  SSPs were then to be returned to DHS where a determination would be made as to what additional security would be ordered for a specific site.

Almost immediately after the regulations were issued, problems arose.  For example, DHS's determination as to who qualified for a SSP under the regulations included any site with over 1,000 gallons of propane.  Effectively, this would have required virtually every family farm or rural homestead with an individual use propane tank to complete a SSP as a chemical facility.  While DHS ultimately corrected this anomaly, it merely highlighted problems to come.

More recently, it has been reported that despite this regulation, DHS has spent nearly $500 million in the last four years with nothing to show for it.  In fact, DHS has yet to approve a single site security plan for the 4,200 entities that submitted one.  Further, the CFATS computer program at DHS made significant errors in calculating risk at chemical plants in both 2009 and 2010, but the errors were not reported up the management chain and did not come to light until just last summer.  Further, congressional investigators have started to review DHS's actions under CFATS to determine where nearly $480 million was spent given DHS has yet to approve a single SSP.  Rand Beers, the Undersecretary in charge of the program, nevertheless claims that progress has been made despite the problems.

However, a crucial internal document written by DHS officials working for Undersecretary Beers tells a much different story.  In a memorandum dated November 10, 2011, the Director and Deputy Director of the Infrastructure Security Compliance Division of the Office of Infrastructure Protection informed Beers of the total failure of their division in implementing CFATS.  This document is perhaps the most critical internal review a government agency has ever written about itself.

For example, the document details how after four years DHS has yet to approve a single site security plan and is not even ready to conduct a compliance inspection.  The memorandum states that the reasons for the failure include inadequate training, overreliance on external experts, poor hiring decisions including hiring those who do not have the necessary skills to perform the job, poor staff morale, management and leadership without experience in the field or knowledge of the subject-matter, lack of regulatory compliance experts, lack of transparency, ineffective communications, union problems, and a "catastrophic failure to ensure personal and professional accountability."

Most notably, the memorandum states, "It has become apparent that our inspector cadre lacks sufficient expertise to effectively evaluate chemical facility compliance with Risk Based Performance Standard (RBPS) 8, cyber security."  Simply put, DHS's own internal review of the last major regulatory undertaking Congress authorized the agency to do has found that the agency cannot meet its mission.  It highlights a bureaucracy so incompetent that it cannot make basic hiring and staffing decisions.  This memorandum should be praised for its candor and those who authored it should be commended.  However, it shows a broken agency with failed leadership that needs to be reined in, lest the federal taxpayers provide another half-billion dollars and get nothing for it.

As if this internal review wasn't enough to signal how DHS is unable to take on the cybersecurity mission, the Government Accountability Office (GAO) issued a report in July 2008 titled, "Cyber Analysis and Warning: DHS Faces Challenges in Establishing a Comprehensive National Capability."  This report found numerous challenges that DHS faced including: filling key management positions, identifying and acquiring technological tools to strengthen cyber analytical capabilities, expeditiously hiring sufficiently trained cyber analysts, engaging appropriate stakeholders in federal and nonfederal entities to develop trusted relationships, and ensuring distinct and transparent lines of authority and responsibility.  Further, GAO found deficiencies in response by United States Computer Emergency Readiness Team (US-CERT); deficiencies in warning notifications that are targeted and actionable, deficiencies in analysis and ability to investigate incidents, and deficiencies in monitoring a comprehensive baseline understanding of the nation's critical information infrastructure.  Nearly four years after the issuance of this report, all ten of GAO's recommendations to DHS remain open and unimplemented.

Taken together, the many failures of CFATS and the outstanding questions GAO highlighted lead me to question whether DHS could handle a new regulatory mission addressing cybersecurity.  At the very least, DHS has a lot of house cleaning to do before Congress should even consider consolidating cybersecurity matters at DHS, let alone to create an entirely new regulatory bureaucracy covering both the public and private sectors.

FAST AND FURIOUS

Finally, I'd like to say something about my Fast and Furious investigation.

One year ago when we had an oversight hearing with the Secretary, I asked whether she realized that Immigration and Customs Enforcement (ICE) had an agent assigned to Fast and Furious.  That ICE agent was involved enough in Fast and Furious that he was designated as a co-case agent for the operation.  ICE kept a totally separate case file from ATF's, and the case file that was stored in ICE's system runs to 2,000 pages.

An ICE agent was there on May 29, 2010, when the main target of Operation Fast and Furious was stopped at the border trying to enter Mexico with 74 rounds of ammunition and an illegal alien.  He was part of the interview where the target was caught lying to federal agents, then allowed to take his cargo into Mexico after simply agreeing to call a phone number the ATF agent wrote on a ten dollar bill.  As far as we know, he didn't call.  He wasn't arrested until seven months later, after the death of Border Patrol Agent Brian Terry.

Customs officers were also present for this May 29, 2010, incident.  It's unclear what kind of pressure they felt from ATF to let this criminal go.  No doubt they had no idea that guns he had trafficked would be found at the murder scene of their colleague, Agent Terry.

However, it's clear that Fast and Furious wasn't just a Justice Department problem.  I have been told that law enforcement from many agencies realized something was fishy with ATF's "big case."  I would like the Homeland Security Department's cooperation in getting to the bottom of this.

Thanks to the Secretary for appearing before us today.  I look forward to hearing from Secretary Napolitano.