SPEAKERS CONTENTS INSERTS
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26–908PDF
2006
CHECKING TERRORISM AT THE BORDER
HEARING
BEFORE THE
SUBCOMMITTEE ON
INTERNATIONAL TERRORISM AND NONPROLIFERATION
OF THE
COMMITTEE ON
INTERNATIONAL RELATIONS
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
APRIL 6, 2006
Serial No. 109–163
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Printed for the use of the Committee on International Relations
Available via the World Wide Web: http://www.house.gov/international—relations
COMMITTEE ON INTERNATIONAL RELATIONS
HENRY J. HYDE, Illinois, Chairman
JAMES A. LEACH, Iowa
CHRISTOPHER H. SMITH, New Jersey,
Vice Chairman
DAN BURTON, Indiana
ELTON GALLEGLY, California
ILEANA ROS-LEHTINEN, Florida
DANA ROHRABACHER, California
EDWARD R. ROYCE, California
PETER T. KING, New York
STEVE CHABOT, Ohio
THOMAS G. TANCREDO, Colorado
RON PAUL, Texas
DARRELL ISSA, California
JEFF FLAKE, Arizona
JO ANN DAVIS, Virginia
MARK GREEN, Wisconsin
JERRY WELLER, Illinois
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MIKE PENCE, Indiana
THADDEUS G. McCOTTER, Michigan
KATHERINE HARRIS, Florida
JOE WILSON, South Carolina
JOHN BOOZMAN, Arkansas
J. GRESHAM BARRETT, South Carolina
CONNIE MACK, Florida
JEFF FORTENBERRY, Nebraska
MICHAEL McCAUL, Texas
TED POE, Texas
TOM LANTOS, California
HOWARD L. BERMAN, California
GARY L. ACKERMAN, New York
ENI F.H. FALEOMAVAEGA, American Samoa
DONALD M. PAYNE, New Jersey
SHERROD BROWN, Ohio
BRAD SHERMAN, California
ROBERT WEXLER, Florida
ELIOT L. ENGEL, New York
WILLIAM D. DELAHUNT, Massachusetts
GREGORY W. MEEKS, New York
BARBARA LEE, California
JOSEPH CROWLEY, New York
EARL BLUMENAUER, Oregon
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SHELLEY BERKLEY, Nevada
GRACE F. NAPOLITANO, California
ADAM B. SCHIFF, California
DIANE E. WATSON, California
ADAM SMITH, Washington
BETTY McCOLLUM, Minnesota
BEN CHANDLER, Kentucky
DENNIS A. CARDOZA, California
RUSS CARNAHAN, Missouri
THOMAS E. MOONEY, SR., Staff Director/General Counsel
ROBERT R. KING, Democratic Staff Director
Subcommittee on International Terrorism and Nonproliferation
EDWARD R. ROYCE, California, Chairman
PETER T. KING, New York
THOMAS G. TANCREDO, Colorado
DARRELL ISSA, California, Vice Chairman
MICHAEL McCAUL, Texas
TED POE, Texas
JERRY WELLER, Illinois
J. GRESHAM BARRETT, South Carolina
BRAD SHERMAN, California
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ROBERT WEXLER, Florida
DIANE E. WATSON, California
ADAM SMITH, Washington
BEN CHANDLER, Kentucky
DENNIS A. CARDOZA, California
RUSS CARNAHAN, Missouri
TOM SHEEHY, Subcommittee Staff Director
DON MACDONALD, Democratic Professional Staff Member
EDWARD A. BURRIER, Professional Staff Member
GENELL BROWN, Staff Associate
C O N T E N T S
WITNESSES
Ms. Janice Kephart, Principal, 9/11 Security Solutions, LLC
Mr. Michael J. Maxwell, Former Director, Office of Security and Investigations, U.S. Citizenship and Immigration Services
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Ms. Janice Kephart: Prepared statement
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Mr. Michael J. Maxwell: Prepared statement
CHECKING TERRORISM AT THE BORDER
THURSDAY, APRIL 6, 2006
House of Representatives,
Subcommittee on International Terrorism
and Nonproliferation,
Committee on International Relations,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:09 a.m. in room 2172, Rayburn House Office Building, Hon. Edward R. Royce (Chairman of the Subcommittee) presiding.
Mr. ROYCE. This hearing will come to order.
The title of this hearing today is ''Checking Terrorism at the Border.''
Terrorists conspiring to attack the United States often defraud and manipulate our immigration system. And the 9/11 Commission found that 15 of the hijackers that attacked the United States could have been stopped had we more diligently enforced our immigration laws. As one of today's witnesses will testify, there are dozens of terrorists who defrauded our immigration system, including many since 9/11, to remain in this country. This includes individuals affiliated with al-Qaeda, and affiliated with Hezbollah.
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Last week this Subcommittee held a hearing on the attempts by terrorists to acquire shoulder-launched missiles that can down an airliner. Our homeland faces a very determined terrorist enemy, and our immigration policies and practices, I am afraid, remain a very porous defense.
Indeed, one of our witnesses, an individual experienced as a top security official in the immigration field, will tell us in frank terms that our immigration officials aren't taking seriously their responsibility to counter terrorism. United States Citizenship and Immigration Services (USCIS), the agency that establishes the immigration status of millions of applicants every year, remains deeply flawed, which a Government Accountability Office report highlighted just last month.
USCIS is riddled with fraud and corruption, we will hear from one witness, and the critical information needed to protect national security remains stovepiped with information-sharing being frustrated. This puts those deciding immigration applications in the very difficult position of not having access to key records held by other U.S. Government agencies, including the FBI and the CIA. And frankly, when you can't check the terrorist watch list, that creates an opening for terrorists. Moreover, there are too many uninvestigated complaints against USCIS personnel who issue green cards or work visas or asylum and other immigration standings representing grave vulnerabilities. Some of these personnel themselves have not been adequately investigated before being given the responsibility of frustrating attempts by terrorists and criminals to acquire the documentation needed to operate freely in the United States.
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One of today's witnesses will tell of U.S. immigration documents being issued by foreign intelligence operatives. That is why I offered a successful amendment to the House immigration enforcement bill, to ensure that law enforcement is a top USCIS priority.
A big part of the problem is that those deciding applications are under enormous pressure to reduce the backlog. The Department of Homeland Security Inspector General in November, in documenting the Agency's poor management controls, found that it ''continues to operate under production pressures.'' Now, that is the jargon for ''move the applications as fast as you can.'' The March GAO report seconded that finding, noting that ''production goals'' are put over rooting out the type of fraud that terrorists commit in their planning. The system, it is clear, is rigged to approve immigration applications, and the system is rigged to shortchange security. This report also found that ''a number of individuals linked to a hostile foreign powers intelligence service were found to have been employed as temporary alien workers on military research.'' USCIS says it supports the ideal of ''keeping America's doors open, but well guarded.'' The doors are open for sure, but I don't see the security counter-balance, despite the lessons of 9/11.
It is timely to examine these issues now, as Congress debates immigration policy. The Senate may soon pass guest worker legislation. This policy in which illegal immigrants are given legal status will place tremendous new burdens on a deeply-flawed USCIS. The President's budget request includes $247 million for USCIS to implement a guest worker program. Guest worker program or not, and I hope not, more money without fundamental USCIS reform and the will to protect national security will accomplish nothing. I say that because of the Abouhalima case, in which that gentleman, in 1986, was able to legalize his status, claiming he was a seasonal agricultural worker; and once that was rubber-stamped, he then used that opportunity to obtain the documents to travel back to Afghanistan, where his handlers, al-Qaeda, trained him in putting together the bomb that he would use in 1993, when he drove a van under the World Trade Center and set off the first attack against the World Trade Center.
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Proponents of this controversial proposal should understand the concerns that many of us have on the security front: Hoisting this new demand that millions of applicants onto this flawed agency would break its back, and dangerously compromise our national security. A reading of the GAO report suggests that USCIS performance is not improving. As Chairman of the Subcommittee on International Terrorism and Nonproliferation, I urge my colleagues and the American public to consider these serious shortcomings as we confront very resourceful terrorists who will do our nation as much harm as allowed.
I will now turn to the Ranking Member for any statement he may wish to make.
Mr. Sherman.
Mr. SHERMAN. Thank you, Mr. Chairman, for organizing this hearing.
As we know, several of the 9/11 hijackers, after gaining entry to the U.S. using visitor's visas, were able to extend their stays in the United States by obtaining student's status and other so-called immigration benefits from the INS.
Now, the INS has ceased to exist under those letters. But the current Homeland Security arm of the former INS that granted those immigration benefits to the 9/11 hijackers, the U.S. Citizen and Immigration Services, the USCIS, is the focus of this hearing.
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I am glad that you have asked to join with us today Michael Maxwell, the former Director of USCIS Office of Security and Investigations. He was, in effect, the top internal affairs officer of USCIS. He no longer has that job. He will tell us that he was forced out, because he brought to light several security problems inside the Administration.
And Mr. Chairman, I want to commend you personally for seeing that the role of Congress doing oversight of the Administration takes precedent over partisan concerns or which party you or I or the Administration may be in. Because no Administration of either party will function well without the kind of Congressional oversight I hope we see here today.
Now, many of Mr. Maxwell's obligations, while very disappointing, are not a huge surprise, given the reputation, much of it deserved, that the Department of Homeland Security has acquired in its brief history, and that the INS acquired in its long history. I know, at least in my Congressional office, and I think in just about everyone else's Congressional office, in my term in Congress I have received more complaints about the INS than all other Federal agencies combined. And now, of course, those complaints come from the various Department of Homeland Security agencies that have taken over for the INS.
Mr. Maxwell will tell us that 4 years after 9/11, and after all of the 9/11 Commission and all of the work on information sharing, watch list databases, after all that, more than 40 percent of USCIS benefit adjudicators—these are the people who approve or disapprove immigration applications—40 percent of the decision-makers do not have access to basic criminal and national security information in the database used by the Agency.
You know that there is the symbol of justice being blind, where you see a blindfold over justice. But imagine 40 percent of your adjudicators actually wearing a blindfold instead of looking at the database to determine whether people are listed in the criminal or national security database.
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Why is this? Because the adjudicators themselves have not undergone a background investigation. And Mr. Maxwell's former office has only a handful of people dedicated to doing the background checks, so we haven't even checked the checkers. And we have instead decided to blindfold them.
Even more troubling, however, is Mr. Maxwell's contention that there are more than 500 current complaints alleging criminal behavior against USCIS employees involved in the process of immigration petitions and applications. Complaint alleging people have taken bribes, have improperly assessed sensitive information. From what I gather from Mr. Maxwell's testimony, which I have read but I look forward to hearing him provide, and from my staff meeting with them, some of these involve potential assistance to terrorists.
Most troubling of all of the allegations, that foreign intelligence officials have been able to infiltrate USCIS.
Mr. Maxwell alleges that these complaints go uninvestigated, or significantly underinvestigated, due to the lack of personnel dedicated to his former office. I believe that he will allege that top officials at USCIS and top officials at the Department of Homeland Security are aware of these allegations, and are simply unable to unwilling to do anything about them.
Mr. Maxwell has many additional complaints. Some may relate to turf battles within an agency, but this goes way beyond turf battles, to whether or not our national security is being guarded by the very agency established, the Department of Homeland Security, the very agency established to protect us. And I can commend Mr. Maxwell for coming forward.
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I also want to welcome our other distinguished witness, Janice Kephart. She is a former 9/11 Commission staffer, also a former Senate staffer. She was responsible for the Commission's treatment of the travel of al-Qaeda terrorists who conducted attacks at the World Trade Center and the Pentagon.
As all of us know, the 9/11 Commission was a model of bipartisan cooperation and professional dedication. And she should be proud to be part of that effort.
I want to take an opportunity to make one more point. this country has a significant debate about immigration, but that is chiefly a debate about illegal immigration. No matter what you think about illegal immigration, we need to properly process legal immigrants. And we need to make sure that any change that we make in our immigration law does not overwhelm USCIS.
It is not enough to adopt good policy, and that will be contentious here in Congress; it has to be a policy that the Agency is capable of administering. And as we will see today, the Agency has great difficulty administering even the present law.
Now, in addition to the Agency, as we will see today, often letting the wrong people stay in this country for extended periods of time, the Agency has a highly-blemished record in terms of customer service. It may claim to have a customer service mentality, but in my dealings with the Agency I have seen situations where a husband and wife are told that they must live in separate countries for decades. That would be a human rights abuse if any other country did it, or at least we would so comment. All because the Agency is incapable of simply making decisions in a reasonable amount of time.
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So I look forward to learning how we can make USCIS an agency that we can be proud of. And I think we have got a long way to go.
Mr. ROYCE. We will ask if there are any other opening statements, and we would ask that they be brief, because we are going to have recorded votes come up.
Mr. Tancredo.
Mr. TANCREDO. Mr. Chairman, in that case I will certainly reduce the amount of time I was going to use in an opening statement to just say thank you for having this hearing. Others have looked into this, but I don't believe as effectively as they should have, other Committees.
I believe that there has been a reluctance on the part of others to actually get in depth into this issue for fear that there might be some embarrassment to the Administration or the USCIS itself.
When we recognize the severity of the concerns that have been brought before us, then it is apparent, certainly to me, and I am so happy to say to you as the Chairman, that it doesn't matter where these things go, we have to pursue them.
And so I look forward to the testimony, Mr. Chairman. And I thank you again for having the guts to have this hearing.
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Mr. ROYCE. Thank you, Mr. Tancredo. Mr. Culberson.
Mr. CULBERSON. Thank you, Mr. Chairman. I also want to commend you, and the Ranking Member, for holding this hearing. And I specifically thank Mike Maxwell for the very important testimony he is going to bring to this Committee.
I can testify from personal experience with the Houston CIS office that the problems that Mr. Maxwell uncovered as head of security for the agency as a whole, I saw personally in the Houston office.
The head of the Houston CIS office and the top ICE agent in Houston actually participated in a town hall meeting, called for illegal aliens in April 2004, and reassured them that the Administration was not going to enforce the immigration laws. And that any illegal alien in Houston did not have to worry about being deported.
I complained about it. Nothing was done to tell the people of Houston that the rule of law, our laws were going to be enforced. There is massive marriage fraud going on throughout the country. The Houston office, we have got examples, as I know Mr. Maxwell also will talk about, individuals being married, dozens and dozens of times, using the marriage loophole and fraudulent identities to bring criminal aliens into the United States.
I also want to point out, Mr. Chairman, that in my Subcommittee—I serve on the Appropriations Committee, and I am grateful for you having me here—one of my Subcommittees has jurisdiction over the Department of Justice and the FBI. And last week I confirmed again with the FBI Director that the FBI is aware of, they wouldn't say exactly how many, but a number of individuals from countries with known al-Qaeda connections who are changing their identities. They are changing their Islamic surnames to Hispanic surnames, adopting false Hispanic identities, and using these false identities and speaking Spanish, pretending to be illegal immigrants and hiding among the flood of illegals coming over our border, and disappearing into the country.
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Further, Mr. Chairman, I also learned from Federal law enforcement authorities that many of these individuals from countries with known al-Qaeda connections adopting false Hispanic identities are white-collar professional people who are in positions that are needed in small rural communities in the United States—bankers, lawyers, engineers, architects. And these Islamic individuals pretending to be Hispanic crossing into the United States, unmolested, are disappearing into these small rural communities, and vanishing.
It is a matter of deep concern to the country when we have unfortunately, when the Administration tells us, for example, that there are no Mexican military incursions in the United States. Yet I have been given a, this is a plastic wallet card issued to border patrol agents on how to deal with Mexican military incursions.
The truth, it is very important for the American people to get to the truth. And Mr. Maxwell's testimony and the work of this Committee is essential in that effort if we are going to protect the United States in an era when terrorists are sneaking in over our borders, pretending to be Hispanic.
Also, as we will hear today, the country will learn that Osama bin Laden's cousin could either walk across the border pretending to be Hispanic, or as we will hear today, he could come right through an office of CIS and adopt a false identity. And odds are CIS would never know it.
And it is extraordinarily important testimony, Mr. Chairman. And I thank you for bringing this to the attention of the American people.
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Mr. ROYCE. Thank you, Mr. Culberson. Let me introduce the witnesses now.
Ms. Janice Kephart is a nationally-recognized border security expert. She specializes in the nexus between immigration and counterterrorism policy. She has authored and co-authored widely-acclaimed reports on these issues. Ms. Kephart served as a counsel to the National Commission on Terrorist Attacks Upon America, otherwise known as the 9/11 Commission.
She is a key co-author of the 9/11 Commission Staff Report, ''9/11 and Terrorist Travel,'' released in August 2004. Ms. Kephart has testified before Congress several times on a variety of national security matters.
Prior to her work on the Commission, Ms. Kephart served as counsel to the Senate Judiciary Subcommittee on Terrorism, Technology and Government Information. In that position she also conducted oversight of Department of Justice counterterrorism programs, as well as the Immigration and Naturalization Service.
Mr. Michael Maxwell is the former Director of the Office of Security and Investigations within the U.S. Citizenship and Immigration Services of the Department of Homeland Security.
As the OSI Director, Mr. Maxwell was responsible for leading and managing a comprehensive security program for an agency of over 15,000 employees, in over 200 facilities worldwide, as well as its internal investigations and international operations branch.
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Mr. Maxwell joined DHS in 2002, with over 15 years of experience in law enforcement, and in security operations ranging from leading a municipal police force as its chief, to participating in national security operations throughout the world, both with the U.S. Government and as a contract employee of the FBI.
Mr. Maxwell is a seasoned lecturer in the subjects of security planning and management, executive protection, law enforcement management, and special operations medicine.
At this time, I ask that Mr. Maxwell and Ms. Kephart please stand and raise your right hand to take the oath.
[Witnesses sworn.]
Mr. ROYCE. Let the record show that each of the witnesses answered in the affirmative.
I remind witnesses that Members have reviewed your testimony, so your written reports will be entered in the record, and I would ask you to summarize. And Ms. Kephart, if you would begin, then we will go to Mr. Maxwell.
TESTIMONY OF MS. JANICE KEPHART, PRINCIPAL, 9/11 SECURITY SOLUTIONS, LLC
Ms. KEPHART. Thank you, Mr. Chairman. If I may enter into the record as well my report on immigration and terrorism I published last September, which is the basis for much of the reason you invited me here today.
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Mr. ROYCE. Without objection.
Ms. KEPHART. Thank you. Mr. Chairman Royce and Ranking Member Sherman, I am indeed proud to have had the honor to work for the 9/11 Commission. And I thank you for the opportunity this morning to discuss terrorist travel in USCIS. It is my first Congressional opportunity to discuss USCIS and immigration fraud, and I am deeply grateful to you for holding this hearing today.
From the outset, let me make it clear that I, like many, consider the benefits and wealth of human potential that immigration brings to our country to be one of our greatest strengths as a nation. But to do so well, our borders must have integrity. To have integrity, we must scrutinize effectively those who seek to come here and stay here. September 11 taught us that secure borders are a matter of national security.
Let me turn to terrorist travel, the reason I was invited here today.
First, all terrorists share in common the need to get to their destination; and second, the need to stay at their destination as long as it takes to carry out whatever mission they are tasked with.
But there is a hitch. Travel operations are risky business for terrorists. They must pass through borders to get to where they are going. In addition, they prefer the guise of legality so they can operate under the radar of law enforcement. To do so, they must submit to government authorities that could find out who the terrorist is, and the danger that terrorist poses. That vulnerability for the terrorist should be an opportunity for governments to stop or hinder terrorist travel.
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And our studies show that when we stop terrorist travel, operations are often stopped as well. But the way the system works now, we don't take advantage of the opportunity. Instead, the system still encourages abuse.
The opportunities to interdict terrorists inevitably exist, because nearly all terrorists I have studied use fraud in some manner to acquire their legal immigration status. The results are that we naturalize them. We give them legal permanent residency. We give them changes in status, religious worker status, asylum, and many other benefits that permit terrorists to come to our country and stay here for long periods of time.
The report I was asked to testify about today covers the immigration histories of 94 indicted and convicted terrorists who operated in the U.S. between the early 1990s and 2004, including six of the 9/11 hijackers.
The report covers all varieties of terror organizations, not just al-Qaeda, along with all the varieties of terrorist activities conducted here. And these activities include raising money through crime or charities, recruiting, procuring dual-use items, or actually committing an operation. Most of these require longer stays than a tourist is usually granted, thus making application for an immigration benefit likely.
Among the report-specific findings, of the 94 foreign-born terrorists who operated in the U.S., the study found that two-thirds, 59, committed immigration fraud prior to, or in conjunction with, taking part in terrorist activity. Of the 59 terrorists that violated the law, many committed multiple immigration violations, 79 instances in all.
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In total, 34 individuals were charged with making false statements to an immigration official, 17 applied for asylum. Fraud was used not only to gain entry to the U.S., but to embed in the U.S., in this case getting immigration benefits.
Once in the U.S., 23 terrorists became legal permanent residents, often by marrying an American. There were at least nine sham marriages.
In total, 21 foreign terrorists became naturalized U.S. citizens. And all four 9/11 pilots abused the vocational student status in one manner or other.
The two Trade Tower pilots, Marwan al Shehhi and Mohammed Atta, applied for a change of status from tourist to vocational student in the fall of 2000. Their identical applications requested nine more months than necessary for their schooling, requesting an end date of September 10, 2001. This misrepresentation should have been discernable by the adjudicator.
In addition, both men used the filing of the application to erroneously talk their way back into the United States in January, 2001.
Ziad Jarrah, the pilot of Pennsylvania Flight 93, came to the U.S. as a visitor, but started attending flight school full time on the very first day he arrived here, violating his status. He reentered the U.S. six subsequent times, each time a violation, and each time nobody knew because the school didn't report him, and Jarrah never applied for a change in status.
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And Hani Hanjour, the Pentagon pilot, could not get a visa as a tourist in 2000, but got one as a student. He arrived, and never showed up for school.
So what are the lessons learned? Terrorists will continue to try to come to the United States. To do so will require immigration-related plans, and often under a false guise of legality. Sham marriages, student status, and political asylum can all lead to legal permanent residency. Legal permanent residency is almost a certain guarantee of naturalization in my study.
These abuses will continue unless we design a system that can snuff out the abuse, and penalize it.
And what I want to emphasize here is that no border initiative, no matter what name it takes, will truly move this nation toward a more secure border unless all elements of the border apparatus, whether those in place to deal with legal or illegal persons, have mechanisms in place to deter, detect, and interdict those who seek to do us harm.
So what do we need to do? My recommendations are outlined in my written testimony, but here are some of the main points.
All immigration applications must require biometrics to verify identity. And I can't emphasize that enough.
Adjudicators must have access to electronic traveller histories containing each point of contact with the border system. We need better training and clearer guidelines for adjudicators. They need adequate resources for timely adjudications of applications. We need a fraud fee on all applications, whether it be a visa or an immigration benefit, to fund anti-fraud activities.
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Robust fraud detection, deterrents, and interdiction worked out of a better and more robust fraud detection unit at USCIS. And what I did not mention in my written testimony, administrative sanctions against perpetrators who have substantive findings of fraud against them, and where the penalty is a time where they are banished from immigration benefits for a period of time.
Thank you so very much, and I am happy to answer questions.
[The prepared statement of Ms. Kephart and a portion of the material submitted for the record follow:]
PREPARED STATEMENT OF MS. JANICE KEPHART, PRINCIPAL, 9/11 SECURITY SOLUTIONS, LLC
INTRODUCTION
Good afternoon and thank you for the opportunity to discuss terrorist travel and the national security role of U.S. Citizenship and Immigration Services (USCIS) with you today. My testimony stems from a basic commonality amongst all terrorist travel: that (1) terrorists need to get to their destination and (2) stay for however long the mission requirement is in order to be successful. It therefore becomes a mission of all elements of the U.S. border apparatus—such as the visa application to the port of entry through immigration benefits—to have mechanisms in place to deter, detect and interdict the fraud and illegalities that terrorists must inevitably use to push their way through the U.S. border apparatus. My testimony is based on the following work:
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As a counsel to the Senate Judiciary Subcommittee on Technology, Terrorism and Government Information prior to 9/11 where I conducted counterterrorism investigation and oversight inquiries of legacy INS;
As a counsel on the 9/11 Commission ''border security team'' which produced the 9/11 Final Report border facts and draft lessons learned and recommendations;
As the author of the immigration portions of 9/11 staff report, 9/11 and Terrorist Travel; and
As the author of a September 2005 Center for Immigration Studies report, ''Immigration and Terrorism: Moving Beyond the 9/11 Staff Report on Terrorist Travel.''
At the Commission, I was responsible for the investigation and analysis of the INS and current DHS border functions as pertaining to counterterrorism, including the 9/11 hijackers' entry and embedding tactics once in the United States, such as the filing for immigration benefits and acquisition of identifications. My current work includes developing policy and operational solutions against terrorist travel and towards a more comprehensive border strategy that brings all the various elements of our U.S. border apparatus at DHS and the State Department into a closer working relationship.
Please note that the views I present here today are my own, and do not necessarily reflect those of the 9/11 Commission. I want to thank both Chairman Royce and Ranking Member Sherman for holding this hearing. I am particularly pleased to be able to discuss the national security role of USCIS, as the issues regarding immigration benefits were such a seemingly small part of the overwhelming travel information that we developed at the 9/11 Commission that I have not heretofore had the opportunity to address Congress on this matter. So thank you for putting the spotlight on USCIS and my work in regard to terrorist abuse of immigration benefits.
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It is my hope that this Committee will continue to exercise its oversight authority on the important issue of terrorist travel and overall border security from the vantage point of international relations. I hope this Committee will help insure that our Government works with our partners on both sides of our borders and overseas, as well as Interpol, which is making great strides in addressing issues of terrorist travel with their watch notices and lost and stolen passport data now being shared with US and other border inspectors around the world.
IMMIGRATION BENEFITS POLICY—AN OVERVIEW
I hope that our discussion today moves us closer to agreeing on how to solve some of the problems that have plagued our immigration benefits adjudications for decades, many of which can be largely resolved by making sure that we implement the lessons learned as a result of the tragic events of September 11, 2001. Only then are we truly in a position to better assure the national security of the American people.
From the outset, let me make it clear that I, like many, consider the benefits and wealth of human potential that immigration brings to this country to be one of our greatest strengths as a nation. However, I also believe that we owe it to all Americans to maintain the integrity of our borders. To do so, we must scrutinize effectively those who seek to come here and stay here. September 11 has taught us that secure borders are a matter of national security.
Further, we will not have cohesive, coherent policies divested of special interests until we can acquire grassroots support for the good work our federal government should be doing to encourage legal immigration and discourage illegal immigration in light of the lessons learned from 9/11and other terrorist abuses of our immigration system. This should not be a difficult rallying call to the American people. The fact is that nearly all Americans agree that legal immigration enriches the United States. Polls also indicate that a high percentage of Americans do not approve of illegal immigration. Therefore, as we move forward with our policies on border security and immigration, we should consider employing a simple formula: does this policy provide for a more secure border apparatus while improving legal immigration or discouraging illegal immigration? Where the answer is ''yes'' to this question, the solution is worth pursuing.
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This formula could generate the set of policies that could drive forward real solutions that enables our border system to acquire respect. When our borders our respected, the American people will begin to see that the border system is providing the security they deserve and rightly demand. In the immigration benefits context, this means taking measures to deter, detect and prevent identification and document (USCIS calls this benefit) fraud—whether sought for economic or criminal/terrorist reasons—while encouraging, facilitating and streamlining legitimate legal immigration.
Today I plan to discuss with you: (1) the 9/11 hijackers' embedding tactics; (2) the results of my September 2005 study on the embedding tactics of 94 other terrorists; (3) recommendations for vastly reducing fraud and addressing national security concerns which should, in and of itself, manifest a more streamlined legal immigration processing.
Lessons learned from the findings in sections (1) and (2) should include:
1. the importance of USCIS in the national security agenda;
2. the need for timely adjudications;
3. based on
a.
clear law and guidelines;
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b.
forensic document information;
c.
shared biometrically based traveler / visitor/ immigration histories
d.
robust fraud detection, deterrence and interdiction conducted by trained professionals; and
e.
followed up by trained law enforcement professionals in either the criminal (ICE) or administrative (USCIS) arenas.
4. adequate line-item budget to support the mission; and
5. legislative policy support for the mission.
9/11 HIJACKERS' EMBEDDING TACTICS
In 9/11 and Terrorist Travel, my able colleagues and I discussed in depth the many varieties of terrorist travel tactics. These include fraudulent manipulations of passports, terrorist ''calling card'' indicators, abuse of a lax Saudi visa adjudication process, and a solid understanding of how to acquire immigration benefits such as a change of status from tourist to student, or a tourist extension of stay. We also discuss how one 9/11 pilot abused the vacuum of information between the State Department consular officers responsible for adjudicating information and immigration benefit application information, a loophole largely closed today with the Student and Exchange Visitor Information System (SEVIS). Another pilot absconded from the immigration benefits system altogether, never seeking to change his tourist status to student despite attaining his pilot's license while in the United States. Two other pilots sought to change their status from tourist to student, enabling them to subsequently re-enter the United States under confusing legal guidelines. Another hijacker sought to extend his stay, did so too late, but was approved anyway.
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The 9/11 hijackers also acquired a total of 28 state-issued identifications or drivers' licenses (with four additional issued as duplicates)(see footnote 1), six of which we know were used at ticket counters on the morning of 9/11.(see footnote 2)
Below is a narrative, roughly chronological, explaining the various 9/11 hijackers' encounters with immigration benefits, at that time housed in legacy INS, and today housed at the USCIS. The material here is pulled—and to the extent possible, summarized—from the 9/11 Final Report and 9/11 and Terrorist Travel.
Seeking an extension of tourist length of stay
Nawaf al Hazmi was one of two ''muscle'' hijackers that came to the United States on January 15, 2000 to go to flight school to prepare for the 9/11 operation. He and his colleague (Khalid al Mihdhar) would become subjects of a watchlist hunt in late summer 2001, but in early 2000 they came into LAX from Bangkok and received the standard six-month stay that all visa-holding tourists receive.
On July 12, 2000, although failing flight school, Nawaf al Hazmi filed to extend his stay another six months in the United States, which was due to expire on July 14, 2000. At this point he was under orders from 9/11 mastermind Khalid Sheikh Mohamed (KSM) to stay in the United States. His passport contained a suspicious indicator of extremism, but neither the border inspectors at LAX nor immigration benefits adjudicators knew of this indicator; in fact, no one in intelligence paid attention to it until after 9/11.(see footnote 3)
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On June 18, 2001, nearly a year after the al Hazmi filed his application, the INS approved the extension of stay to January 15, 2001. As I wrote in 9/11 and Terrorist Travel: ''technically, the application was late, since the INS received it in July 2000, after his length of stay had expired; they therefore should not have adjudicated it. However, even with this late adjudication al Hazmi was still an overstay as of January 16, 2001. Al Hazmi never knew that his extension had been approved—the notice was returned as ''undeliverable'' on March 25, 2002.''(see footnote 4)
Seeking a change of status from tourist to student—and not
Ramzi Binalshibh was originally slated to be one of the four 9/11 pilots. He tried four times to obtain a visa to come to the United States; in May and July 2000 in Germany, back in Yemen in September 2000, and once more in Berlin in November 2000. What is interesting about Binalshibh is that he thought, despite his failed attempts to come in legally, that he may be able to enter and stay if he could marry an American woman. He even corresponded via email with a woman in California for a short time. Mohammed Atta, the operational ringleader of 9/11 and the pilot of American Airlines Flight 11—North Tower World Trade Center, however, likely considered it too risky, and told Binalshibh to stop the correspondence.(see footnote 5)
In early 2000, Atta, Ziad Jarrah (pilot of United Airlines Flight 93—Pennsylvania), and Binalshibh returned to Germany from Afghanistan. Binalshibh and Atta, stopped to visit with the 9/11 plot mastermind KSM on their return. KSM had spent three years in the United States as a student in North Carolina, and was familiar with both U.S. culture and U.S. border functions. In 1983, KSM enrolled first at Chowan College, a Baptist school in Murfreesboro, North Carolina, and then at North Carolina Agricultural and Technical State University in Greensboro. There one of his classmates was Ramzi Yousef's brother, who himself later became an al Qaeda member while Yousef planned the 1993 World Trade Center and Bojinka plots with KSM. Not swayed in the least bit by American culture or democratic ideals, he told his captors in 2003 that even during his U.S. stay in the 1980s he considered killing the radical Jewish leader Meir Kahane when Kahane lectured in Greensboro. KSM graduated with a mechanical engineering degree in December 1986 and then left the United States permanently, (although he did receive a visa to visit the United States in July 2001 that was never used).(see footnote 6)
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Binalshibh states that it was at this early 2000 meeting that KSM provided details about how to get in and live in the United States to Atta, Jarrah and himself. Marwan al Shehhi (pilot of United Airlines Flight 175—South Tower World Trade Center) also met with KSM.(see footnote 7) We know that Al Qaeda trained their troops in terrorist travel, including how to deceive border personnel and others about their affiliation by changing both their radical behaviors and their appearance upon departing Afghanistan.(see footnote 8)
Once back in Germany, the four began searching for appropriate flight schools. Atta did his homework, requesting information via email from 31 various U.S. flight schools.(see footnote 9) Jarrah decided that he should learn to fly in the United States.(see footnote 10) And that is what he did. From the day of his first entry in June 2000 on a tourist visa, he proceeded to become a full time student at the Florida Flight Training Center in Venice, Florida until January 31, 2001. He never did not seek a student visa, nor ever seek to file an immigration change of status with legacy INS once in the United States. Instead, he used his tourist visa to re-enter the United States six times from June 2000 until his last entry on August 5, 2001.
The failure to seek the change of status made him inadmissible and subject to removal each of the subsequent six re-entries. However, because neither the school nor Jarrah complied with notice requirements under the law, no one knew Jarrah was out of status. Both Jarrah and the school remained under the radar of potential immigration enforcement. Further complicating potential enforcement action was that at the time there was no student tracking system in place and the school certification program was highly flawed.(see footnote 11)
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The following I lifted out of my work in 9/11 and Terrorist Travel:
On July 3, 2000, al Shehhi and Atta enrolled at Huffman Aviation to take flight lessons. Neither violated his immigration status: attending flight school was permitted as long as their entrance to the United States was legal and they sought to change their status before the expiration of their length of stay in late November and early December. As required by Huffman, both began training as private pilots.(see footnote 12)
On September 15, 200 Huffman Aviation's Student Coordinator assisted Atta in filling out the student school form I–20M, required by the INS to demonstrate school enrollment. Al Shehhi also received an I–20M signed by this coordinator. Both Atta's and Shehhi's I–539 applications to change their immigration status from tourist (B–1/B–2) to vocational student (M1) were mailed to the INS. Both applications requested that their status be maintained until September 1, 2001. The contents of the applications are substantially the same, including the same financial statement of support, bank statement, and lease. Also in September, the two took flying lessons at Jones Aviation in nearby Sarasota, Florida. They spent a few hours a day flying at Jones, struggling as students because of their poor English. They were aggressive, even trying to take over control of the aircraft from the instructor on occasion. They failed their instrument rating tests there, and returned to Huffman.(see footnote 13) They eventually passed their tests at Huffman, and started logging in hours in the air.
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As is well known from the Justice Department's OIG report, for a variety of reasons pertaining to processing at immigration service centers, Atta and al Shehhi actually had their applications to change their status from tourist to vocational student approved and then received by Huffman Aviation on March 11, 2002.(see footnote 14) That report concludes, in part, as follows:
OIG Conclusions Regarding the Delay in Sending the I–20 Forms to Huffman Aviation
Huffman Aviation received its copies of Atta's and Alshehhi's I–20 forms in March 2002, more than a year and a half after the forms were submitted to the INS in September 2000 and approximately seven months after the I–539 change of status applications were approved in July and August 2001.
We found that the delay in sending the I–20 forms to Huffman Aviation was attributable to several causes. First, the INS did not adjudicate Atta's and Alshehhi's I–539 change of status applications for approximately 10 months. The INS has historically placed a low priority on the adjudication of I–539 applications, and the adjudication of these applications was significantly backlogged in 2001.
Second, after Atta's and Alshehhi's applications were approved in July and August 2001, ACS did not receive the I–20 forms from the INS for approximately two months after adjudications. Processing was delayed for many weeks due to disorganization in the INS's system for mailing the I–20s to ACS.
Third, ACS processed Atta's and Alshehhi's I–20 forms quickly upon receipt in September 2001 but did not mail the forms to Huffman Aviation for almost 180 days. ACS's actions were consistent with its understanding of its contract at the time and were consistent with its handling of other I–20 forms processed by ACS at the time. However, we found evidence that the INS had intended for the I–20s to be mailed to schools within 30 days not after 180 days.
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. . .
Adjudication of Atta's and Alshehhi's I–539s
In addition to investigating what caused the delay in the INS's processing of the I–20s that were sent to Huffman Aviation on March 11, 2002, we evaluated whether the INS properly approved Atta's and Alshehhi's change of status applications.
The adjudication of I–539 change of status applications consists primarily of a review to ensure that the applicant has submitted the proper documents and the proper fee. This process is not designed to screen for potential criminals or terrorists; it is designed to ensure that applicants can demonstrate that they have the financial resources to support themselves while in the United States. INS employees at all levels told the OIG that the INS's philosophy with respect to applications for INS benefits, and specifically the change of status benefit, is that applicants are presumptively eligible for the benefit unless they affirmatively demonstrate that they are not eligible.(see footnote 15)
An extension of stay request at the Miami Immigration District Office
One of the most interesting anecdotes from the 9/11 terrorist travel story is Atta's May 2, 2001 attempt to obtain an extension of stay for another 9/11 colleague, who I believe was likely Jarrah. The two (with a third) probably stood in line at the Miami Immigration District Office for hours, just getting seen before lunch that day. INS district offices adjudicate all types of immigration benefits, and what Atta wanted was for his companion to receive the same eight-month length of stay that Atta had (wrongfully) received in a January 2001 entry where he was erroneously permitted to enter, and then erroneously given a longer length of stay than permitted under the law. The officer who adjudicated Atta's request was an airport inspector on her first tour of duty in an immigration benefits office and remembered the encounter vividly when I interviewed her.
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The shorter version of the story as I relate it in 9/11 and Terrorist Travel is as follows:
The inspector recalled taking both passports to see if they had genuine visas. She also looked at the I–94 arrival records in the passports. Atta's companion had received a six-month stay as a tourist, with an end date of September 8, 2001. She also noticed that Atta had been admitted as a tourist for eight months. During this time, Atta was quiet. She told Atta, ''Someone gave you the wrong admission and I'm not giving your friend eight months.''
The inspector then went to her supervisor, informed him that Atta had been granted an incorrect length of stay, and asked permission to roll it back to six months. The supervisor agreed. The inspector then tore the I–94 record out of Atta's passport, and created a new I–94 for six months, which allowed Atta to remain in the United States until July 9, 2001. On the record she wrote: ''I–94 issued in error at MIA [Miami International Airport]. New I–94 issued.'' The inspector then took a red-inked admission stamp, rolled the date back to January 10, and stamped Atta as a B–2 tourist. She wrote in a length of stay until July 9, 2001, and handed Atta back his passport and new I–94 record. Atta took the documents, said thank you, and left with his companions.(see footnote 16)
The result of this inspector's good work was that instead of Jarrah being legally in the country along with Atta until 9/10/01, Atta had to leave in July prior to the expiration of his legal length of stay. It was to no avail, but it was another missed opportunity for law enforcement.
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I authored the following material on Hani Hanjour (pilot American Airlines Flight 77—Pentagon) for 9/11 and Terrorist Travel. It was not included in the final product because its content pre-dated Hanjour's affiliation with the 9/11 plot. However, because it makes for an interesting case of how Hanjour manipulated immigration benefit adjudications throughout the 1990s up until his last U.S. visa application, it is here in full.
This is this content's first release to the public. (My 9/11 Commission colleague, Tom Eldridge did the visa portions of this piece.) I have not included the footnotes, as the Commission interviews used for these portions were covered by a nondisclosure agreement with the State Department.
Until we have all applications biometrically based to verify and freeze identities and all immigration histories available to all personnel—from visa adjudications through immigration benefits—the confusion and fraud in our immigration benefits system, as demonstrated below, will continue.
Hani Hanjour, Pilot of American Airlines Flight 11
Hani Hanjour was born August 30, 1972, in Taif, Saudi Arabia. He is the first 9/11 hijacker to acquire a U.S. visa and come to the United States. He enters four times prior to September 11, seeking a U.S. education three of those four times. Hanjour is the only hijacker to have a lengthy familiarity with the United States prior to the operational build-up for the plot. There is no indication, however, that Hanjour was made part of the operational plot until sometime before his last entry into the United States in December 2000.
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Hanjour's first two visas and entries, in 1991 and 1996.
Immigration records for Hanjour indicate that he acquires B2 (tourist) visas for his first two entries into the United States in Saudi Arabia in September 1991 and March 1996. Hanjour enters the United States on these visas within a month of acquiring them on October 3, 1991 and April 2, 1996. There is no record as to when Hanjour leaves after his first entry in October 1991. He is given a six-month stay.
Records do indicate that when Hanjour returns in April 2, 1996, he is given a six-month length of stay as a tourist. Hanjour's March 1996 tourist visa is issued with a notation on the application stating ''prospective student, school not yet selected''. On June 7, 1996, Hanjour files an INS I–539 application to change status from tourist to an academic student to attend the ELS Language Center in Oakland, California until May 20, 1997. The application is quickly approved twenty days later, on June 27, 1996.
Well before his length of stay is up, Hanjour leaves the United States again in November 1996.
Hanjour's 1997 visa and entry
Hanjour's second two visas and entries from Saudi Arabia are on one-year academic visas, one into Atlanta on November 16, 1997, and the last into Cincinnati on December 8, 2000.
On his November 1997 application, Hanjour spells his last name ''Hanjoor.'' It is not uncommon to see Arabic names spelled in various ways. Hanjour answers ''no'' to the question ''Have you ever applied for a U.S. visa before, whether immigrant or nonimmigrant?'' He also answers ''no'' to the question ''Have you ever been in the U.S.A.?'' Because there is evidence that Hanjour has been in the United States on a B2 (visitor) visa twice before, it appears that Hanjour's application contains at least one false statement.
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It is difficult to establish the intent behind these false statements. The application does bear a signature that appears identical to the signature on Hanjour's two 2000 visa applications. However, the application form also indicates that it is prepared by ''Siddiqi/ Samara Travel.'' Thus, the false statements may have been inadvertent, due possibly to a travel agent who filled out the form before Hanjour signed it.
In addition to the false statements, Hanjour also leaves some portions of the application blank. For example, although Hanjour lists his occupation as ''student'' and he does not fill in the field asking for the ''name and street address of present employer or school.'' (We do not know whether he was asked the name of the school he wanted to attend in the US.) Not surprisingly, Hanjour also leaves blank the question ''Are you a member or representative of a terrorist organization?''
The consular officer who adjudicates Hanjour's 1997 visa application interviews him on November 2, 1997. This officer says that the decision to interview a Saudi citizen in Jeddah was a ''case-by-case'' decision, but that they would interview 50–60 percent of Saudis who applied in Jeddah during this time period. The officer said their colleagues advised them of this interview policy after they arrived in Jeddah. The interviews often were cursory, a comparison between the person applying and the photo they submitted, plus a few questions about why the applicant wanted to go to the United States. Because the officer who interviews Hanjour cannot read or speak Arabic, he relies on local embassy staff or an American colleague to help him conduct interviews. Similarly, the officer relies on experienced local staff to spot any anomalies in an application. The officer told us that they interviewed Hanjour during ''the low season,'' possibly indicating that they had more time to conduct interviews.
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It is not uncommon to request the applicant to provide additional documentation before a certain visas could be granted. For example, a student applicant was required to present an INS form I–20 and proof of funds sufficient to pay for the education. If the applicant wanted to go to the United States to attend flight school—something common in Jeddah because Saudi Airlines was headquartered there—consular officers would request to see a letter from a bank showing the amount in the applicant's bank account in order to establish whether they could, in fact, afford to pay for the schooling.
The officer did not specifically recall many details of their interview of Hanjour on November 2, 1997, but was able to reconstruct some aspects of it contemporaneously from notes on the visa application. During the course of the interview, the officer wrote down on the face of the application ''has cash,'' ''trav alone,'' and ''wants to go to flight school.'' The officer told us that he believed he must have looked at a bank statement from Hanjour in order to conclude he ''has cash.'' The officer also believed based on his review of the application that, during his interview of Hanjour, he established that he was traveling alone, and that his spoken English ability matched the requirements of his student visa.
The officer said they would not have known about Hanjour's prior travel to the U.S. unless it was reflected in his passport. The officer also said they could not understand why Hanjour would have sought to cover up prior travel to the U.S. ''It's perplexing that they would hide that because it works in their favor,'' the officer said. The officer did say, though, that a Saudi who had been to the United States twice before, as Hanjour apparently had been, and who then applied to go to the U.S. for English studies would have ''raise[d] an eyebrow'' because a student visa applicant must demonstrate they have made reasonable progress in their studies. The officer said they did deny visas to underperforming Saudi students on some occasions.
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The officer also said that it was not uncommon for Saudis to have third parties prepare their visa applications, and not uncommon for those third parties to make mistakes. It was not unusual for Saudis to not fill out their applications completely, including failing to sign their application, so that Hanjour's failure to answer the question about being a member of a terrorist organization was not unusual in his experience. In general, the officer told us, they felt they could make visa adjudications with only the basic biographical information Saudis typically provided. However, the officer made a point of telling us that ''it bothered me; it disturbed me'' to accept so many incomplete applications from Saudis. When they raised it at post, they were told by the local staff, ''well, we have always done it this way.''
Finally, the officer checked the CLASS database for any derogatory information on Hanjour. There were no ''hits.'' Thus, based on a review of Hanjour's documents, his interview with him and his check of the CLASS name check database, the consular officer issued Hani Hanjour an F–1 (student) Visa of 12 month's duration.
After being issued the one-year academic F1 visa on November 2, 1997, Hanjour travels on November 16 of that year to the United States on that visa and is granted a two-year length of stay. The visa is for attendance at the ELS Language Centers in Florida. On June 16, 1998, however, Hanjour decides to attend flight school. He files a second I–539, this time seeking a change of status from an F1 academic student to a M1 vocational student to attend the Cockpit Resource Management Airline Training Center in Scottsdale, Arizona from July 30, 1998 to July 29, 1999. Eight months later, the INS requests supporting evidence. By April 1999, having already attended the flight school and received a commercial pilot license from FAA without ever acquiring INS approval to change his status to an M1, Hanjour departs again in December 1999. This I–539 will not be approved until January 16, 2001. By this point, Hanjour has already acquired a new academic visa and re-entered the United States for his last time.
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These entries on Hanjour are lifted from 9/11 and Terrorist Travel:
September 10. Hani Hanjour again applied for a B1/B2 (tourist/business) visa in Jeddah, Saudi Arabia. Hanjour submitted a new passport issued on July 24, 2000. He stated on his application that he would like to stay for three years in the United States, an answer that triggered concern in the minds of consular staff that he was at risk of becoming an immigrant to the United States if he were granted the visa. A consular employee who screened Hanjour's application forwarded him to a consular officer for an interview. Hanjour told the consular officer that he was going to attend flight training school in the United States and wanted to change his status to ''student'' from ''tourist'' once he arrived in the United States. ''Look, you have spent enough time in the States'' to know what you want to do there, the officer told Hanjour. Based on Hanjour's prior travel to the United States, the officer said to him, he did not qualify for a tourist visa in order to go to the U.S. and find a school ''because he had been in the States long enough to decide what he wanted.'' For these reasons, the officer denied Hanjour's application under INA section 221(g).(see footnote 17)
September 25. Hanjour returned to the Jeddah consulate and, apparently having listened to what the consular officer told him, submitted another application for a student visa. This time, Hanjour stated a desire to attend the ELS Language Center in Oakland, California. A consular official—probably the intake screener—wrote a note on his application indicating that Hanjour had been denied a visa under section 221(g) on September 10. The same consular officer who had interviewed Hanjour in connection with his September 10 application also processed this one. He recalled to us that Hanjour or someone acting on his behalf submitted an INS school enrollment form, or I–20—required to qualify for a student visa—to the consulate late on September 25, 2000. ''It came to me, you know, at the end of the day to look at it. I saw he had an I–20, and it [his visa] was issued.''(see footnote 18)
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State Department electronic records indicate that this approval allowed Hanjour to ''overcome'' his September 10 visa denial, another indication that multiple applications can be considered ''one case.'' State Department records erroneously recorded the visa issued to Hanjour as a B–1/B–2 (business/tourist) visa when, in fact, it was an F (student) visa that was printed and put in Hanjour's passport. In addition, Hanjour had already received an approved change of status to attend this same English language school in 1996. But that approval was granted by the INS in the United States, and the State Department had no record of it. The consular officer told us that if he had known this information, he might have refused Hanjour the visa.(see footnote 19)
IMMIGRATION AND TERRORISM: MOVING BEYOND THE 9/11 STAFF REPORT ON TERRORIST TRAVEL (Sept. 2005)
There is nothing more important to a terrorist than getting where he needs to go and being able to stay there long enough to carry out his or her instructions. We call this ''embedding.'' As I wrote in 9/11 and Terrorist Travel, ''while the rhetoric continues to focus on the critical mission of terrorist entry, virtually no attention is being given to the most recent information about terrorist travel and to the mission . . . of preventing terrorists who get in from staying in.''(see footnote 20)
Overview of Report Findings(see footnote 21)
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The inadequacies of our Citizenship and Immigration Services agency continue to make embedding relatively easy. Religious worker visas are known to carry a 33 percent fraud rate.(see footnote 22) Political asylum and naturalization are two of the benefits most rampantly abused by terrorists. And even when naturalization is acquired, we do not require the new U.S. citizen to renounce his or her country of origin, or hand in old passports. One well-known terrorist and naturalized U.S. citizen, Abdulrahman Alamoudi, now spending 23 years in prison for illegal financial dealings with the Libyan government (which included a plot to assassinate a Saudi prince), was able to hide much of his travel abroad from U.S. immigration inspectors for years by using his old passports for travel while he was visiting countries outside the United States.
My September 2005 Center for Immigration Studies report, Immigration and Terrorism: Moving Beyond the 9/11 Staff Report, covers the immigration histories of 94 terrorists who operated in the United States between the early 1990s and 2004, including six of the September 11th hijackers discussed above. The report included persons with a clear nexus to terrorist activity, with nearly all of these individuals indicted or convicted for their crimes. The report was built on prior work done by the 9/11 Commission and the Center for Immigration Studies, providing more information than has been previously been made public.
The findings show widespread terrorist violations of immigration laws and abuse of the U.S. immigration benefits system. In fact, 11 of the violations noted in the report were persons who had acquired immigration benefits before or around 9/11, but whose terrorist plots within the United States occurred after 9/11. Violations were rampant with plots to blow up a shopping mall in Ohio, for example, along with surveillance of financial buildings in northern New Jersey/New York and North Carolina.
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The findings also show that not just Al Qaeda violates our immigration laws—the study cuts across a variety of terrorist organizations.
Many of these terrorists may have been affiliated with one or more terrorist organizations, but 40 individuals are associated with al Qaeda, 16 with Hamas, 16 with either the Palestinian or Egyptian Islamic Jihad, and six with Hizballah are specifically identified. Three are unaffiliated but of a radical Islamist background; one each is affiliated with the Iranian, Libyan or former Iraqi governments; one each is associated with the Pakistani terrorist groups Lashkar-e-Taiba and Jaish-e-Mohammad; and the affiliations of eight others indicted or detained on terrorism-related charges are unknown.(see footnote 23)
The report highlights the danger of our lax immigration system, not just in terms of whom is allowed in, but also how terrorists, once in the country, used weaknesses in the system to remain here. The report makes clear that USCIS must be an integral player in border security, raising the bar on its usual persona as merely a customer service agency to one of having a critical role in national security—the last chance to say no to a terrorist who seeks to stay here longer under U.S. immigration laws.
The summary of findings in the report is as follows (these are lifted verbatim from the report):
Of the 94 foreign-born terrorists who operated in the United States, the study found that about two-thirds (59) committed immigration fraud prior to or in conjunction with taking part in terrorist activity.
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Of the 59 terrorists who violated the law, many committed multiple immigration violations—79 instances in all.
In 47 instances, immigration benefits sought or acquired prior to 9/11 enabled the terrorists to stay in the United States after 9/11 and continue their terrorist activities. In at least two instances, terrorists were still able to acquire immigration benefits after 9/11.
Temporary visas were a common means of entering; 18 terrorists had student visas and another four had applications approved to study in the United States. At least 17 terrorists used a visitor visa—either tourist (B2) or business (B1).
There were 11 instances of passport fraud and 10 instances of visa fraud; in total 34 individuals were charged with making false statements to an immigration official.
In at least 13 instances, terrorists overstayed their temporary visas.
In 17 instances, terrorists claimed to lack proper travel documents and applied for asylum, often at a port of entry.
Fraud was used not only to gain entry into the United States, but also to remain, or ''embed,'' in the country.
Seven terrorists were indicted for acquiring or using various forms of fake identification, including driver's licenses, birth certificates, Social Security cards, and immigration arrival records.
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Once in the United States, 16 of 23 terrorists became legal permanent residents, often by marrying an American. There were at least nine sham marriages.
In total, 20 of 21 foreign terrorists became naturalized U.S. citizens.(see footnote 24)
A Note on Hizballah
Recent news reports about the affiliation of Iran with Hizballah and concerns that U.S. military action against Iran could trigger Hizballah attacks against U.S. troops in Iraq and civilian targets within the United States warrant mention in the immigration context here. Below I relate two known Hizballah schemes for entry and stay in the United States: one uses USCIS benefits, and the other is illegal entry which is outside the purview of this hearing, but worth mentioning within the light of the current pending immigration legislation and debate.
Sham marriage. From January 1999 through January 2000, Said Mohamad Harb, one of the key figures in Hizballah's North Carolina cigarette smuggling operation run by Mohamad Hammoud, which raised millions of dollars for Hizballah, helped secure three fraudulent visas and three sham marriages. He was able to ''legally'' bring his brother, brother-in-law, and sister into the United States so that they might become legal permanent residents.
The two men each obtained a nonimmigrant visa from the U.S. embassy in Cyprus; though given one- and two-week lengths of stays for conducting business in the United States, each married a U.S. citizen immediately after his arrival and therefore was allowed to stay indefinitely. In the case of Harb's sister, a male U.S. citizen was paid to meet her in Lebanon and then travel with her to Cyprus, where their marriage enabled her to acquire an immigration visa. In June 2000, Harb also attempted to give an immigration special agent a $10,000 bribe so that another brother could enter the United States.(see footnote 25) All the conspirators were convicted of all counts against them, including the immigration violations.
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Alien smuggling. Hizballah is well known for its illegal smuggling tactics into the United States.
Around February 2001, Mahmoud Youssef Kourani, a Hizballah operative who pled guilty to terrorism charges in Detroit in April 2005, entered the United States illegally. Kourani left Lebanon to travel to Mexico after bribing a Mexican consulate official in Beirut with $3,000 to obtain a Mexican visa. Once in Mexico, he sought entry into the United States. He succeeded: he illegally entered the United States across the southwest border by hiding in a car trunk.(see footnote 26)
In November 2003, a federal grand jury indicted Kourani on charges of conspiring to provide material support to Hizballah, a designated foreign terrorist organization. The indictment alleges that Kourani was a ''member, fighter, recruiter, and fundraiser for Hizballah who received specialized training in radical Shiite fundamentalism, weaponry, spy craft, and counterintelligence in Lebanon and Iraq.'' It also claims that Kourani recruited and raised money for Hizballah while in Lebanon.(see footnote 27) Government documents also state that Kourani alone sent back about $40,000 to Hizballah.
Salim Boughader Mucharrafille is the well-known Lebanese-Mexican smuggler who is the only known smuggler our 9/11 team could identify at the time we published our 9/11 and Terrorist Travel staff report in August 2004 as linked to suspected terrorists. Convicted in Mexico, he was then extradited to the United States for trial here.
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Until his arrest in December 2002, Boughader smuggled about 200 Lebanese Hizbollah sympathizers into the United States. Most of these sympathizers were young men, sent by their families to make money to send back to Lebanon. One client, Boughader said, worked for a Hizbollah-owned television network, which glorifies suicide bombers and is itself on an American terror watch list. Although we do not know whether Kourani used Boughader's services, the methods Kourani used to enter the United States are the same methods Boughader used on behalf of his clients.
According to extensive Associated Press reporting on Boughader, he told reporters ''If they had the cedar on their passport, you were going to help them. That's what my father taught me. . . . What I did was help a lot of young people who wanted to work for a better future. What's the crime in bringing your brother so that he can get out of a war zone?''(see footnote 28)
RECOMMENDATIONS
Benefits adjudications, like visa issuance and port of entry admissions, need to be as secure and as timely as possible. Fraud and national security concerns get in the way of timely adjudications, bogging down legitimate applications and have a twofold effect: (1) legitimate applicants are not adjudicated in a timely manner while many legitimate potential applicants are discouraged from applying while (2) illegitimate applicants take advantage of the vulnerabilities of the system. By ramping up a number of areas, including fraud detection, deterrence and interdiction alongside providing better information and clearer guidelines to adjudicators within a program office wholly dedicated to fraud and working in cooperation with law enforcement officers at ICE and elsewhere, we can look towards a much more efficient and secure process. Those that should be receiving benefits will then begin to receive benefits in a timely manner, and those that should not receive benefits will not, and those that should be criminally prosecuted, will make their way to federal court.
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Both the 9/11 Final Report and my ''Immigration and Terrorism'' report discuss many recommendations, all of which I support and urge this committee to look at closely. Some of these are below. I have also added a few.
Assure that USCIS is treated as an equal partner in a national border security agenda. The attack of 9/11 was not an isolated instance of al Qaeda infiltration into the United States. In fact, dozens of operatives from a variety of terror organizations have managed to enter and embed themselves in the United States, actively carrying out plans to commit terrorist acts against U.S. interests or support designated foreign terrorist organizations. For each to do so, they needed the guise of legal immigration status to support them.
As we move forward, those who come to stay and embed themselves into communities throughout the United States will continue to rely on a false guise of legality. More aggressive culling of applications for national security risks will help prevent terrorists from attaining enhanced immigration status on the front end. However, it must therefore be a prerequisite for any strategy that seeks to attain border security to include the United States Citizenship and Immigration Service (USCIS) in fraud prevention and national security agendas.
Require all applications to be biometrically based. Identities must be verified in person and documents reviewed for fraud. Forensic document examiners should be made available to every immigration benefits office. Two Benefit Fraud Assessments (BFAs) have been conducted to date. The Religious Worker BFA found a fraud rate of 33% and the Replacement Permanent Resident Card BFA found a fraud rate of 1%. The likely reason: religious worker petitions are not biometrically based, permanent resident cards are. Biometrics are essential for freezing identity. Once that is done, the problem of multiple applications under multiple aliases is reduced dramatically, and other immigration and criminal history becomes much easier to link with the applicant.
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Assure that immigration benefits adjudicators have access to entire traveler histories, which over time should be person-centric (not file-centric). The nearly 30 immigration databases, while not necessary to create a single one, should be streamlined and most definitely fully networked so anyone working in the border apparatus will have access to full and complete traveler/ visitor/ immigration histories.
All petitioners should be subject to security background checks, with real-time access to federal, state, and local law enforcement information upon request. The more access that is given to the national security or law enforcement information that exists on a foreign national, the less we will need to rely upon unwieldy name-based watchlists. The more security measures the United States incorporates into its own adjudications of immigration benefits before they are granted, the more success the United States will have in rebuffing terrorists who seek to embed here and spending inordinate government resources in reversing bad benefits decisions.
Commit to enforcing the law with better and more resources. Better resources include clearer guidelines for processing immigration benefits in order to eliminate the arbitrary decision-making that inevitably takes place in their absence. In addition, comprehensive immigration reform must entail, in the long run, not only streamlining the overly complex immigration laws, but also providing sufficient human and technological resources to enforce the law on the border and in USCIS immigration benefits centers.
Enhance the USCIS Office of Fraud Detection and National Security (FDNS) by giving FDNS a continued line item budget for conducting long term and real time fraud assessments, and pattern analysis of fraud.
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Note: I personally requested a briefing from this unit after publication of my CIS report in October 2005. Over the course of a number of meetings I came away satisfied that FDNS was ramping up adequately to address fraud.
USCIS is a service (not enforcement) bureau to address long-term issues pertaining to backlogs and fraud in immigration benefits adjudications. A unit dedicated to fraud detection (with enforcement handled by ICE) is new to this arena, and absolutely essential and supported by the findings and recommendations in GAO Report 02–66 of January 2002, ''Immigration Benefit Fraud: Focused Approach is Needed to Address Problems.'' FDNS today is the ''organizational crosswalk'' that acts on behalf of USCIS and DHS, as the primary conduit to and from the law enforcement and intelligence community on potential fraud and national security concerns posed by immigration benefit applicants.
ICE and FDNS—while it took much negotiation and time—do have a working relationship and joint anti-fraud strategy. Roles in this strategy are defined:
USCIS via FDNS is to detect and analyze suspected fraud, while ICE is to follow up referrals for possible criminal investigation and presentation for prosecution. This includes a USCIS referral process and a fraud tracking system with case management as well as analytic capabilities that are currently under development. In the future, all incoming cases will be bounced against USCIS' new Fraud Detection and National Security Data System (FDNS–DS). If fraud is detected and verified but not accepted for investigation by ICE (as most will not reach the threshold for criminal prosecution) the benefit is denied, a lookout is posted in TECS, and the alien placed in removal proceedings. At present, FDNS is using its reactive tool to connect the dots, SC CLAIMS.
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USCIS has already recruited, hired, trained, and deployed 160 FDNS officers throughout the Country. In the first year of operation (FY05) alone, USCIS identified 2,289 suspected fraud cases. Most are former adjudicators that possess immigration benefit law and policy-related expertise that criminal investigators do not possess. This is extremely valuable when conducting inquiries and investigations of employment and religious worker-based petitions, which are highly technical in nature. In addition to performing fraud-based systems checks and analyses, and conducting administrative inquiries/investigations, FDNS officers perform background check and national security-related duties, and are USCIS' primary conduit to/from the enforcement and intelligence community. While there are millions of applications and fraud is known to be rampant in applications, this is a solid start.
In addition, the DHS OIG recommended in its July 2005 draft report entitled ''Review of U.S. Citizenship and Immigration Services' Alien Security Checks,'' that USCIS ''implement the Background Check Analysis Unit in the Office of Fraud Detection and National Security.'' DHS has recognized the need to expand FDNS' mandate beyond fraud detection.
Establish a fraud fee. Fraud is so rampant throughout the border apparatus that it only makes sense that all applications (including visa issuance) should support its detection and deterrence. The less fraud, the faster the legitimate applications can be processed, making the entire system operate with necessary integrity and without severe backlogs. The value of FDNS is to provide the expertise and referrals for large fraud cases while taking care of the smaller cases in-house (after the proper procedures are followed per agreement with ICE).
Integration of anti-fraud efforts across USCIS, ICE, DOS and DOL. For example, DOS needs to be able to verify claimed persecution, employment experience, academic credentials, and relationships associated with immigrant and nonimmigrant petitions adjudicated by USCIS. All four agencies need to share information so that fraud cannot replicate itself throughout the system. Already developed are national and three regional interagency immigration benefit fraud task forces. Currently, an ICE special agent is collocated with FDNS–HQ and with each USCIS' Center Fraud Detection Unit.
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CONCLUSION
USCIS' mission should no longer be simply considered to be reducing horrendous backlogs. Rather, USCIS must have a proactive role in adjudicating legitimate applications in a timely manner and detecting, deterring and interdicting fraudulent applications—with a priority on applications that pose a national security concern, such as the terrorists outlined in this testimony.
With proper mission support by Congress and the administration, USCIS can change its current posture. It will take work to reverse the years of inadequacies and failures, but modern technology, well trained adjudicators, a good working relationship with federal law enforcement partners, clearer laws and guidelines, and a commitment to streamline traveler histories with biometrics will all help move USCIS forward to where it needs to be to truly serve foreign nationals who seek to come and stay in the United States for legitimate purposes, and stop those who seek to abuse our freedoms and do us harm.
I believe we can do it. But USCIS needs your support and help to make it happen.
[Note: Image(s) not available in this format. See PDF version of this file.]
Mr. ROYCE. Thank you, Ms. Kephart. Mr. Maxwell.
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TESTIMONY OF MR. MICHAEL J. MAXWELL, FORMER DIRECTOR, OFFICE OF SECURITY AND INVESTIGATIONS, U.S. CITIZENSHIP AND IMMIGRATION SERVICES
Mr. MAXWELL. Good morning, Chairman Royce, Ranking Member Sherman, distinguished Members of the Subcommittee. Thank you for the opportunity to appear today to discuss immigration security vulnerabilities facing the United States.
I am here before you because as Director of the Office of Security and Investigations, or OSI, it was my job to ensure that security of the USCIS, including its facilities, information, classified technology, communications, personnel, and so on. As the only law enforcement unit within USCIS, OSI was also responsible for resolving allegations of corruption and of criminal wrongdoing by USCIS employees.
Mr. Chairman, having spent almost 2 years as Director of OSI, I can tell you without hesitation that it is not only USCIS employees who have been corrupted. Written allegations set forth by USCIS employees, interviews conducted as recently as yesterday with USCIS low-end employees and high-level managers, internal USCIS communications and external investigative documents prepared by independent third agencies compiled and delivered to this Congress over the last year, make it abundantly clear that the integrity of the United States immigration system has also been corrupted. And the system is incapable of insuring the security of our homeland.
USCIS and DHS leadership have, in some cases, actively participated in corrupting the system. At a minimum, they have turned a blind eye toward the corruption, and they have refused, time and time again, to act when confronted with national security vulnerabilities my team or others identified in the immigration process.
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These breaches compromise virtually every part of the immigration system itself, leaving vulnerabilities that have been, and likely are being, exploited by criminals and adversaries of the United States.
Each time my team discovered a new vulnerability, we brought it immediately to the attention of the appropriate USCIS or DHS headquarters officials. I want to make it clear that in every instance, I went to my chain of command within DHS to rectify these national security vulnerabilities.
Only when that command was shown to be incapable, unwilling, or worse was I left no choice but to come forward and seek protection as a whistle-blower. I am therefore grateful to all in Congress who have been willing to listen and to take action.
Despite the fact that each identified threat, as you will see, has national security implications, USCIS leadership consistently failed or refused to correct them. Instead, top officials chose to cover them up, to dismiss them, or to target the employees who identified them, even when a solution was both obvious and feasible.
I have considered my testimony carefully. I do not make these assertions without documentation to support them. Over the past 8 months I have received multiple document requests from Congress, and have complied through my attorneys, producing thousands of pages of documents.
More recently I have provided many of the same documents to the FBI, the GAO, and the DHS Office of the Inspector General. On multiple separate occasions I offered to provide Director Gonzalez a full set of these documents, but on each occasion he declined my offer.
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OSI's mandate from former USCIS Director Eduardo Aguirre was to regain the public's trust in the Immigration Service. Between May and December 2004, with the support of Director Aguirre, I began to recruit top-notch security and law enforcement experts. By May 2005, I had been authorized a staffing level of 130 full-time employees and contract workers, including 23 criminal investigators.
In the end, however, that authorization was never realized by OSI, as I would find out later that the Human Resources Department at USCIS had arbitrarily stopped all hiring of criminal investigators once Director Aguirre left for his tour of duty as U.S. Ambassador to Spain and Andorra. With this level of continuous internal obstruction preventing OSI's meaningful progress, by August 2005, my staffing matrix was reduced from 130 to fewer than 50 personnel.
USCIS senior leadership blatantly disregarded the written orders of Director Aguirre, and unilaterally decided that OSI should not be adequately staffed. By the time of my resignation in February 2006, Human Resources had not posted one additional vacancy for investigative positions within OSI, nor have they to this day.
In fact, OSI's authorized staffing level was reset so low that not only were we unable to open investigations into new allegations of employee corruption, our ongoing national security investigations involving allegations of espionage and those with links to terrorism were jeopardized.
Under the authority of Acting Deputy Director Divine and Chief of Staff Paar, OSI's investigative staffing level was frozen. OSI was authorized no more than six criminal investigators in the field, initially responsible for managing a backlog of 2,771 internal affairs complaints, including 528 criminal allegations.
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A number of these cases involved allegations of employees being influenced by foreign governments or providing material support to terrorists.
As law requires, OSI refers all national security cases to the FBI when they reach a certain investigative threshold. While I cannot discuss these ongoing investigations in an open forum, I can tell you about some investigations OSI closed, and those we were unable to investigate due to lack of resources.
As you know, the USCIS employees who process applications for immigration benefits are supposed to ensure that the applicant is not a terrorist or a criminal. The database they use to do this is called the Enforcement Communications System, or TECS. TECS is essentially a gateway into the criminal and terrorist database of some two dozen law enforcement and intelligence agencies, including the FBI, the Drug Enforcement Administration, Immigration and Customs Enforcement, Customs and Border Protection, and others.
USCIS employees are granted different levels of access to TECS, depending on how in-depth of a background investigation they have undergone. Those who have undergone a full background investigation are likely to be granted access to level-three TECS records. Due to the sensitivity of data in TECS level three, USCIS employees are required to log in and out of the system so their access can be tracked.
OSI has seen too many allegations recently where it appears a Federal employee or a contract worker may have entered TECS or permitted someone else to enter TECS illegally in order to provide information to someone not authorized to view or use that sensitive law enforcement material. In fact, OSI recently got its first criminal conviction in a case involving a USCIS employee who accessed TECS in order to warn the target of a DEA narcotics investigation about the investigation itself.
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In a second case, it is alleged that an individual who works for USCIS permitted a relative to access TECS, print law enforcement records from the database, and then leave the building with those records. We do not know what records this person accessed or why, despite the fact that there are indicators that raised foreign intelligence concerns. This allegation is not being investigated, because OSI's six, and soon to be five, criminal investigators are already stretched to their limit.
Consider for a moment the damage that can be done to national security by just one USCIS employee co-opted by a foreign intelligence agency with the ability to grant the immigration benefit of their choosing, to the person of their choosing, at the time of their choosing. Now imagine if that employee were being influenced by a highly capable foreign intelligence agency known to partner, train, or provide material support to terrorist organizations.
Consider the ramifications of one co-opted asylum officer granting asylum to individuals from countries of concern with impunity, safe in the knowledge that OSI lacks the resources to proactively watch for indicators or investigate allegations. There simply is no deterrent effect whatsoever at USCIS that might make an employee believe that the cost of wrongdoing may be greater than the benefits.
Additional documents attached to my statement show that USCIS leaders are deceiving investigators and Congress with regard to information-sharing and the ability, or should I say the inability, of immigration officers to obtain negative national security information before they grant immigration benefits.
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They know our system, and are using it against us. Those are the words of a senior executive from USCIS as we flew home from Iraq in October 2004, while discussing his imminent retirement, his concerns about the immigration system, and his reference to known terrorists applying for immigration benefits.
On no less than nine occasions in the past year, the DHS Office of the Inspector General and Government Accountability Office have reported major failures in the immigration system. They have raised the national security red flags with regard to cyber-security, terrorist attacks, criminal fraud, and penetration by foreign intelligence agents posing as temporary workers, all while the bad guys are patiently working within the framework of our legal immigration system, at times with the explicit help of USCIS employees.
What the reports reveal is an immigration system designed not to aggressively deter or detect fraud, but, first and foremost, an immigration system that, when in doubt, will grant the immigration benefits. Ours is a system that rewards criminals, facilitates the movement of terrorists, supports foreign agents, and with each will come their tools of the trade.
Let me cite just an example or two. Currently the immigration headquarters asylum division has a backlog of almost 1,000 asylum cases that is not reported to you as Members of Congress, to the Inspector General, or the American people. This backlog includes two kinds of asylum claimants: Individuals who claim they have been falsely accused by their home government of terrorist activity, and individuals who have provided material support to a terrorist or a terrorist organization.
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These asylum claimants, most of whom fall into the second category, are in the United States right now. Some have been awaiting a decision on asylum since late 2004 on whether the Secretary of Homeland Security will grant them a waiver of inadmissability for providing material support to terrorists. In other words, they are here now, and short of a policy from headquarters stating otherwise, following a credible fear interview, these individuals are presumably released into the general population with employment documents.
As of September 2005, the USCIS headquarters fraud detection national security unit has an unreported backlog of 13,815 immigration benefits cases, including national security cases. This backlog of national security cases is particularly disturbing when put in the context of USCIS's definition of how to resolve a national security case.
According to an FDNS policy dated March 29, 2005, and included as an attachment to my written statement, USCIS can now resolve ''a national security case simply by requesting the derogatory national security information from the law enforcement or intelligence agency that has it.'' The actual delivery of the requested information is completely irrelevant to the process. Immigration officers, by policy, are not permitted to deny an application based solely upon the knowledge that a law enforcement agency is holding negative national security information about an applicant.
If the adjudicator cannot identify a statutory ground for a denial—that is, they can't get their hands on the information—he or she must grant the benefits. Again, documentation will show this exact scenario has played itself out on more than one occasion.
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While the statements I have made today may shock the conscience of some, they cannot come as a surprise to USCIS senior leadership, leadership that has been warned repeatedly of national security vulnerabilities in the asylum, refugee, citizenship, information technology, and green card renewal systems by me personally, by the GAO, and by the Inspector General. Time and again they have ignored warnings of systemic weaknesses wide open to exploitation by criminals, terrorists, and foreign agents.
When faced with irrefutable proof of new vulnerabilities, they, themselves, in writing, referred to longstanding or ''rampant fraud,'' and vulnerabilities that had gone unaddressed for more than a year. They knowingly misled Congress, the Inspector General's Office, the GAO, and perhaps most disheartening, the American public.
The immigration process itself is flawed. And without a major paradigm shift in leadership, management, and organization, the process will continue to fail the American citizenry, and the immigrant population deserving the opportunity to obtain status here, like both of my parents.
In closing, Mr. Chairman, I sit before this Committee, my faith that someone, somewhere, will do the right thing within DHS shaken. I know there are more good men and women in the Agency who would like nothing more than to do their part in fixing this broken system. Until just weeks ago, I wanted to be part of the solution myself.
I have run this issue to ground, and kept my word to those who matter most, the American public. I have upheld my oath to the Constitution and provided information to the FBI, the GAO, the Inspector General, and to Congress.
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I am no longer employed by DHS, and I hope the retaliation will end. For even though I am no longer employed there, I am told by concerned employees at USCIS that senior management has now taken to attacking my credibility in private meetings behind the walls of headquarters.
However, based on the response I have seen this far by USCIS and ICE employees, I am hopeful that people will continue to come forward, preferably to the OIG or GAO, to report legitimate concerns. And that with your help, someone will finally be able to force serious change on an agency that has needed it desperately for years.
I will close my statements, and be happy to take your questions.
[The testimony of Mr. Maxwell follows:]
PREPARED STATEMENT OF MR. MICHAEL J. MAXWELL, FORMER DIRECTOR, OFFICE OF SECURITY AND INVESTIGATIONS, U.S. CITIZENSHIP AND IMMIGRATION SERVICES
Good morning Chairman Royce, Ranking Member Sherman, and distinguished Members of the Subcommittee. Thank you for the opportunity to appear before you today to discuss immigration-related national security vulnerabilities facing the United States.
My name is Michael Maxwell and, until February 17 of this year, I was Director of the Office of Security and Investigations (OSI) at US Citizenship and Immigration Services (USCIS). I would like to begin by expressing my thanks to the men and women of OSI who stayed the course from day one, despite extraordinary pressure to take the easier path, and who remained loyal to the ideals of national security, integrity, and sacrifice. You would be hard-pressed to find a more dedicated group of professionals in either the public or the private sector, and I am proud to have served with them.
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THE USCIS OFFICE OF SECURITY AND INVESTIGATIONS
U.S. Citizenship and Immigration Services (USCIS) is the component of the Department of Homeland Security (DHS) that processes all applications for immigration status and documents—known as ''immigration benefits''—including lawful permanent residence (the beneficiaries of which are issued ''green cards''), U.S. citizenship, employment authorization, extensions of temporary permission to be in the United States, and asylum, that are filed by aliens who are already present in the United States. USCIS also processes the petitions filed by U.S. citizens, lawful permanent residents, and employers who seek to bring an alien to the United States, either permanently or on a temporary basis.
The Office of Security and Investigations was created by former USCIS Director Eduardo Aguirre to handle all the security needs of the agency, including:
The physical security of the more than 200 USCIS facilities worldwide;
Information security and the handling and designation of sensitive and classified documents;
Operations security, for both domestic and international operations;
Resolution of all USCIS employee background investigations;
Protective services for the Director of USCIS and visiting dignitaries; and
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Internal affairs, among other duties.(see footnote 29)
OSI's mandate from Director Aguirre was to ''regain the public trust in the immigration service'' by identifying, reporting, and resolving any security vulnerabilities that would permit the successful manipulation of the immigration system by either external or internal agents.
Between May and December of 2004, with the support of Director Aguirre, I began to recruit top-notch security experts, mostly from other Federal agencies. By September of 2004, OSI had in place a small team of professionals who would plan and successfully execute the first ever naturalization ceremonies to be conducted in a war zone overseas for members of the United States Armed Forces.(see footnote 30) Following an agency-wide initiative I led in early 2005 to evaluate the few existing USCIS security systems and resources, Director Aguirre authorized, in writing, the immediate hiring of 45 new personnel for OSI, including 23 criminal investigators to investigate allegations of employee corruption and wrongdoing.(see footnote 31) By May of 2005, I had been authorized a staffing level of 130 full-time employees and contract workers.(see footnote 32) My only option for bringing staff on board, however, was to transfer them laterally from other DHS components, because the Human Capital Office of Administration refused to post any new vacancy announcements, apparently because they did not approve of a law enforcement component within USCIS.
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In August of 2005, not long after the departure of Director Aguirre, my staffing matrix was effectively cut from 130 to fewer than 50 personnel worldwide. USCIS Senior Leadership, as represented on the Senior Review Board (SRB),(see footnote 33) which must approve all significant expenditures, as well as the Human Capital Office of Administration, blatantly disregarded the written orders of former Director Aguirre and unilaterally decided that OSI should not be adequately staffed.(see footnote 34)
In fact, with the approval of Acting Deputy Director Robert Divine, originally appointed by President Bush as Chief Counsel and the highest-ranking political appointee at USCIS following the departure of Aguirre's Deputy Director, Michael Petrucelli, OSI's authorized staffing level was set so low that, not only were we unable to open investigations into new allegations of employee corruption with clear national security implications, our on-going national security investigations involving allegations of espionage and links to terrorism were jeopardized. OSI staff consisted primarily of:
Six criminal investigators—one or two of whom were detailed to the DHS Office of Internal Security at any given time because of their expertise in national security investigations—to handle a backlog of 2,771 internal affairs complaints, including 528 that were criminal on their face and ranged from bribery and extortion to espionage and undue foreign influence;
Six personnel security specialists to handle a backlog of 11,000 employee background investigations that had developed before OSI was created, plus the background investigations of all the new employees being hired to help eliminate the application backlog;
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Nine physical security specialists to secure over 200 USCIS facilities worldwide; and
One supervisory security specialist to ensure the continuity of operations (COOP) in the event of an attack or other crisis that impacts USCIS personnel or processes.
The same senior leaders who absolutely refused to allow OSI to obtain the necessary resources to fulfill its mission also refused, time and time again, to act when confronted with major national security vulnerabilities my team and I identified in the immigration process. Each of the security breaches described below was brought immediately to the attention of top-level officials at USCIS. These breaches compromise virtually every part of the immigration system, leaving vulnerabilities that have been and likely are being exploited by enemies of the United States. Despite the fact that each identified threat has significant national security implications, USCIS leadership consistently failed—or refused—to correct them. Instead, top officials chose to cover them up, to dismiss them, and/or to target the employees who identified them, even when the solution was both obvious and feasible.
As a former police chief and national security specialist, I do not make these charges lightly. Over the past eight months, I have provided, through my attorney, thousands of pages of unclassified documents, including most of those attached to this statement, to Members of this Subcommittee and other Members of Congress. More recently, I have provided the same documents to the FBI, the GAO, and the DHS Office of Inspector General. On three separate occasions, I offered to provide Director Gonzalez a full set of these documents, but on each occasion, he declined my offer.
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These documents, and others of which I have personal knowledge but am not at liberty to release or to discuss in an open forum, prove not only the existence of the national security vulnerabilities I will discuss today, but also the fact that senior government officials are aware of the vulnerabilities and have chosen to ignore them. More troubling is the fact that these same officials actually ordered me to ignore national security vulnerabilities I identified, even though my job was to address them. When I refused these orders, I was subjected to retaliation—some of which was as blatant as revoking my eligibility for Administratively Uncontrollable Overtime (AUO), which totaled 25 percent of my salary, on the very day that I was scheduled to brief the Immigration Reform Caucus;(see footnote 35) and some of which was more nefarious, like the challenge to my authority to authorize access to Sensitive Compartmented Information (SCI), in a move that I have no doubt would have led to the revocation of my own Top Secret/SCI clearance, had I not resigned when I did.
INTERNAL AFFAIRS
Mr. Chairman, written allegations set forth by USCIS employees, interviews conducted as recently as yesterday with USCIS line employees and high level managers, internal USCIS communications, and external investigative documents prepared by independent third agencies, compiled and delivered to this Congress over the last eight months, make clear that the integrity of the United States immigration system has been corrupted and the system is incapable of ensuring the security of our Homeland.
As the office responsible for internal affairs, OSI received 2,771 complaints about employees between August 2004 and October 2005. Over 1800 of these were originally declined for investigation by the DHS Office of the Inspector General and referred to OSI. Most of the remaining complaints were delivered to OSI by the ICE Office of Professional Responsibility once they gave up jurisdiction over USCIS complaints. The majority of all complaints received by OSI are service complaints (e.g., an alien complaining that he did not receive his immigration status in a timely way) or administrative issues (e.g., allegations of nepotism).
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However, almost 20 percent of them—528 of the 2,771—allege criminal activities. Alleged crimes include bribery, harboring illegal aliens, money laundering, structuring, sale of documents, marriage fraud, extortion, undue foreign influence, and making false statements, among other things. Also included among these complaints are national security cases; for example, allegations of USCIS employees providing material support to known terrorists or being influenced by foreign intelligence services.(see footnote 36) Complaints with clear national security implications represent a small share of the total, but in cases such as these, even one is too many.
OSI is required to refer such cases to the FBI when they reach a certain threshold, since the Bureau has primary jurisdiction over all terrorism and counterintelligence investigations. In virtually all the cases we refer to the FBI, though, OSI is an active investigative partner. In fact, OSI agents have led or facilitated remote and sometimes classified national security operations; we have led national security interviews; we have participated in national security polygraph interviews; and we have developed behavioral analyses as investigative tools.
OSI also details its agents to the DHS-Headquarters Office of Security when the latter lacks sufficient resources to investigate these types of national security allegations, as we have criminal investigators with training and experience in both counterterrorism and counterintelligence operations. In fact, one of our investigators is currently detailed to the DHS Office of Security.(see footnote 37) For operational security reasons, these investigations had to be compartmentalized from all USCIS management except the Director, Deputy Director, or Chief of Staff. At times, we reported directly to Admiral Loy, when he was Deputy Secretary, and later to Deputy Secretary Jackson.
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As you would expect, we always prioritize complaints that appear to implicate national security. One of the most frustrating parts of my job, though, was the fact that we simply did not have the resources to open investigations into even the relatively small number of national security cases. While I cannot discuss on-going investigations in this open forum, I can tell you about some of the allegations OSI did