[Senate Hearing 111-573]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 111-573
                      NOMINATION OF JOHN T. MORTON



                               before the

                              COMMITTEE ON
                          UNITED STATES SENATE

                                 of the


                             FIRST SESSION


                          OF HOMELAND SECURITY

                             APRIL 22, 2009


       Available via http://www.gpoaccess.gov/congress/index.html

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        Committee on Homeland Security and Governmental Affairs

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               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware           JOHN McCAIN, Arizona
MARK L. PRYOR, Arkansas              GEORGE V. VOINOVICH, Ohio
MARY L. LANDRIEU, Louisiana          JOHN ENSIGN, Nevada
CLAIRE McCASKILL, Missouri           LINDSEY GRAHAM, South Carolina

                  Michael L. Alexander, Staff Director
               Kristine V. Lam, Professional Staff Member
     Brandon L. Milhorn, Minority Staff Director and Chief Counsel
                   Jennifer L. Tarr, Minority Counsel
                  Trina Driessnack Tyrer, Chief Clerk
         Patricia R. Hogan, Publications Clerk and GPO Detailee
                    Laura W. Kilbride, Hearing Clerk

                            C O N T E N T S

Opening statements:
    Senator Lieberman............................................     1
    Senator Collins..............................................     3
    Senator Burris...............................................    10
    Senator Akaka................................................    12
    Senator McCaskill............................................    13
Prepared statements:
    Senator Lieberman............................................    21
    Senator Akaka................................................    23
    Senator Collins..............................................    25

                       Wednesday, April 22, 2009

John T. Morton to be Assistant Secretary, U.S. Department of 
  Homeland Security:
    Testimony....................................................     4
    Prepared statement...........................................    27
    Biographical and financial information.......................    32
    Responses to pre-hearing questions...........................    42
    Letter from the Office of Government Ethics..................    69
    Responses to post-hearing questions for the Record...........    70
    Letters of Support...........................................    82

                      NOMINATION OF JOHN T. MORTON


                       WEDNESDAY, APRIL 22, 2009

                                     U.S. Senate,  
                       Committee on Homeland Security and  
                                      Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to other business, at 11:26 
a.m., in room SD-342, Dirksen Senate Office Building, Hon. 
Joseph I. Lieberman, Chairman of the Committee, presiding.
    Present: Senators Lieberman, Akaka, McCaskill, Burris, and 


    Chairman Lieberman. The Committee is happy to reconvene now 
to consider the nomination of John Morton to be Assistant 
Secretary of Immigration and Customs Enforcement (ICE) at the 
Department of Homeland Security. Mr. Morton, we welcome you. We 
are very happy to have you before us today.
    I am very pleased, I will say personally, that you have 
been nominated to lead ICE, which has wide-ranging 
responsibilities and faces some difficult, immediate, and 
ongoing challenges. Your extensive work experience at the 
Department of Justice, I think, makes you uniquely qualified to 
lead the agency at this pivotal period in its history. You have 
prosecuted civil immigration violations at the old Immigration 
and Naturalization Service (INS) and later participated in 
immigration policy initiatives that addressed detention 
standards, which I am very interested in; the removal process; 
and improving coordination among the immigration components of 
the Department of Justice. Your work as a criminal prosecutor 
also impresses me and includes cases related quite relevantly 
to human smuggling, large immigration frauds, money laundering, 
and human rights violations. In recent years, you have managed 
components of the Department of Justice that prosecute these 
and other offenses related to our national security.
    Your nomination is supported enthusiastically by the 
Fraternal Order of Police, the Major Cities Chiefs Association, 
and the National Sheriffs Association, and the National 
Immigration Forum referred to you as ``a seasoned Federal 
prosecutor who understands the importance of documenting the 
facts and ensuring government transparency.''
    The Immigration and Customs Enforcement agency is the 
Department of Homeland Security's largest investigative agency. 
Its mandate is really vast, and the agency must direct its 
resources wisely by prioritizing the most serious threats to 
our public safety and then pursuing them.
    I will say that, for one, I support the Administration's 
initiative to clamp down on smuggling-related crime and 
violence at the U.S.-Mexican border.
    During a Committee field hearing that we held in Phoenix, 
Arizona, on Monday, April 20, 2009, we heard from a number of 
State and local officials who again reminded us of the enormity 
of the challenge they face here in the United States from the 
Mexican drug cartels and human-smuggling networks as they both 
war against themselves and carry out their criminal conduct 
within the United States.
    ICE has a key role to play in taking down, to the best of 
our ability and yours, these nefarious organizations, and I 
promise you that I will do everything I can to ensure that you 
have the resources and legal authorities you need to 
investigate and disrupt these drug and human-smuggling 
    I want to take this opportunity of your confirmation 
hearing to share with you a concern that I developed with a 
little more intensity based on the field hearing and, frankly, 
work that our staff did in Arizona in the days before the 
hearing; that is, there unfortunately seems to be a need for 
better coordination of the Federal Government activities in the 
border region. The plain fact is that there are unacceptable 
turf wars going on between ICE, the Drug Enforcement 
Administration (DEA), and the Bureau of Alcohol, Tobacco, 
Firearms, and Explosives (ATF). And those simply cannot be 
tolerated given what we have learned about the threat posed by 
these sophisticated and well-armed criminal networks that 
operate not just in the border region but in, as the Federal 
Bureau of Investigation (FBI) has told us, 230 metropolitan 
areas across America.
    So I want to urge you, presuming you come into this job, 
working with Secretary Janet Napolitano, of course, and working 
with Attorney General Eric Holder in this case, to make sure 
that the competition between the agencies of the Federal 
Government that we noted there be brought to a rapid halt.
    I am going to enter most of the rest of my statement in the 
interest of time in the record.\1\ I just want to say, as I 
mentioned to you when you were good enough to come to my 
office, that I have been frustrated over the last few years at 
the Department's failure to improve what I consider to be 
inhuman detention policies and conditions. What I am about to 
say in the next sentence will probably numerically surprise 
anybody listening, but at any given time, the part of the 
Department of Homeland Security that you are going to head--
Immigration and Customs Enforcement--is detaining approximately 
30,000 people or more, most of them non-criminals, many of them 
asylum seekers, which is the group that I have been 
particularly concerned about, people coming here for asylum 
based on religious or political discrimination at home, and 
long-time residents. Many who have come here fleeing oppression 
or seeking a better life for their families are being 
incarcerated in county jails or other such facilities because 
we do not have adequate facilities, and I am particularly 
concerned that medical care for these people under our control 
and in our detention has been deplorable. In fact, too many 
people have died while in custody, it seems to me, at least in 
part, if not in whole, because the physical conditions they had 
went untreated.
    \1\ The prepared statement of Senator Lieberman appears in the 
Appendix on page 21.
    In this session, I am going to again introduce legislation, 
the Secure and Safe Asylum and Detention Act, to address these 
problems. I hope you will take a look at it and hopefully 
support it. The legislation promotes the extension and 
expansion of alternatives to detention programs. It encourages 
the release of detainees who represent no risk of flight or 
threat to public safety and requires improved conditions at 
detention facilities, including improved medical care. I will 
say that I am encouraged by some steps that Secretary 
Napolitano has taken thus far, including directing a review of 
our immigration detention and enforcement policies, and I 
appreciate the commitments that you made to me when we met and 
to the Committee to pursue such reforms.
    But, bottom line and generally, you are an extraordinarily 
well-prepared nominee for this position. I welcome you this 
morning and look forward to your testimony.
    Senator Collins.


    Senator Collins. Thank you, Mr. Chairman.
    Mr. Chairman, you have ably described what an important 
role this is, as well as the impressive background of Mr. 
Morton. I am going to submit my statement for the record,\1\ 
but I just want to focus on two issues that I want to explore 
with Mr. Morton this morning.
    \1\ The prepared statement of Senator Collins appears in the 
Appendix on page 25.
    It is essential if ICE is to accomplish its mission that it 
forge effective partnerships with State and local law 
enforcement, and I know that you saw that in the field hearing 
as well. You have also brought up the conflicts that often 
occur with other Federal agencies, including ATF with ICE, and 
those issues need to be resolved as well. It is vital that 
everyone is working together and that turf battles not impede 
the accomplishment of such an important mission.
    The second issue that I want to explore is the appointment 
of a border czar by Secretary Napolitano and how that is going 
to work with ICE. I must say this new Administration seems to 
have a tendency to appoint special assistants within the White 
House and czars for virtually every problem that comes along. 
And while I understand the need to shine a spotlight on these 
problems, when you do that, it sets up conflict, turf battles, 
and confusing lines of command and control. So I will want to 
question Mr. Morton today on how he would anticipate working 
with the new border czar. I think it would have been preferable 
had the Secretary waited until you were confirmed to see 
whether that position was really necessary.
    Thank you, Mr. Chairman.
    Chairman Lieberman. Thank you, Senator Collins. Those are 
good points.
    Let us proceed. Mr. Morton has filed responses to a 
biographical and financial questionnaire, answered prehearing 
questions submitted by the Committee, and had his financial 
statements reviewed by the Office of Government Ethics. Without 
objection, this information will be made part of the hearing 
record, with the exception of the financial data, which are on 
file and available for public inspection in the Committee 
    Mr. Morton, our Committee rules require that all witnesses 
at nomination hearings give their testimony under oath, so I 
would ask you to please stand and raise your right hand. Do you 
swear that the testimony you are about to give to the Committee 
will be the truth, the whole truth, and nothing but the truth, 
so help you, God?
    Mr. Morton. I do indeed.
    Chairman Lieberman. I thank you. You may now proceed with 
your statement, and I note the presence of what I take to be 
your family. We heard them briefly during the previous hearing 
in the back room. I will say that if anybody has doubts about 
your nomination, the presence of your family members will 
immediately erase the doubts. You have a beautiful family. 
Anyway, welcome and proceed with your statement now, as you 


    Mr. Morton. Thank you Mr. Chairman, thank you, Senator 
Collins. Let me begin by stating how honored I feel to be here 
today. As a career Federal prosecutor, I consider it a great 
privilege to have been nominated by the President to be the 
Assistant Secretary for ICE. I thank the Secretary of Homeland 
Security for placing her confidence in me, and I thank the 
Committee for taking up my nomination.
    \1\ The prepared statement of Mr. Morton appears in the Appendix on 
page 27.
    Let me also introduce to you and thank my two daughters, 
Olivia and the slightly more shy Lucie, who bears a vague 
resemblance to me, and their mother, Laura. I would also like 
to thank my parents, Brown and Margaret. Without their support, 
I would not be in this position today.
    Should I be confirmed, I look forward to working with the 
dedicated men and women of ICE to ensure our Nation's security. 
I promise you that no one will be more committed than I to 
ensuring that ICE is an effective and valued member of the law 
enforcement community.
    I come before you today the product of a lifelong career in 
Federal law enforcement, one that has been marked by a 
particular emphasis in the areas we now associate with homeland 
    I also come before you today the son of an immigrant. As a 
result, I like to think that I reflect two important and 
complementary American qualities: A rich immigration tradition 
and the rule of law.
    I have spent my entire professional career in Federal law 
enforcement, having served in various positions at the 
Immigration and Naturalization Service, main Justice, and the 
U.S. Attorney's Office. As a result, I have a unique blend of 
enforcement, policy, and management experience related to ICE's 
    I have prosecuted criminal cases involving national 
security, immigration crimes, and customs offenses. I have 
worked on relevant policy issues, including immigration reform 
and the extension Federal jurisdiction over international 
    I have managed people and offices directly involved in the 
work of homeland security. I assisted then Attorney General 
Janet Reno and Deputy Attorney General Eric Holder with the 
management of the former INS, and I have supervised several 
offices in the Criminal Division of the Department of Justice 
directly involved in investigations and prosecutions within 
ICE's purview.
    These experiences have led me here, seeking your 
confirmation to be the next leader of ICE. If confirmed, my 
priorities would include: Improving the investigation and 
prosecution of major customs and immigration crimes; securing 
our borders, both North and South; identifying and removing 
criminal aliens from our communities; reforming our immigration 
detention system; improving worksite enforcement with a greater 
focus on employers; and strengthening the work of the Federal 
Protective Service (FPS). If confirmed, I would also seek to 
improve morale and provide for greater accountability and 
transparency at the agency.
    In short, I want to give the agency a greater sense of 
identity and purpose, improve its management, and increase its 
coordination with and support of its Federal, State, and local 
law enforcement partners.
    Let me also say that, if confirmed, I would look forward to 
working with this Committee very closely. The issues and 
challenges facing ICE are considerable, and I want to continue 
the dialogue we have started in the confirmation process.
    In closing, allow me to reiterate what an honor and weighty 
responsibility I feel in coming before you today. If you do 
confirm me, know that I will pursue my duties on the merits, 
with great dedication, and with an eye to innovation and 
    I thank you for your consideration.
    Chairman Lieberman. Thank you for that excellent opening 
statement, Mr. Morton. I am going to start my questioning with 
the standard questions we ask all nominees.
    First, is there anything you are aware of in your 
background that might present a conflict of interest with the 
duties of the office to which you have been nominated?
    Mr. Morton. No, sir.
    Chairman Lieberman. Do you know of anything, personal or 
otherwise, that would in any way prevent you from fully and 
honorably discharging the responsibilities of the office to 
which you have been nominated?
    Mr. Morton. I do not.
    Chairman Lieberman. Do you agree without reservation to 
respond to any reasonable summons to appear and testify before 
any duly constituted committee of Congress if you are 
    Mr. Morton. I do.
    Chairman Lieberman. I appreciate those answers, and we are 
going to start now with the first round of questions limited to 
7 minutes.
    Let me begin with the Southwest border problems that I 
talked about at the beginning, and obviously this is an 
enormous challenge. It represents a real threat in many ways to 
the United States. I was impressed, being there on Monday. We 
tend to react to this, those of us who do not live there, in 
larger policy terms, numbers. But we heard from some of the law 
enforcement personnel and the elected officials about the human 
suffering, the abuse suffered by people who are smuggled into 
the country illegally and then held and abused in various ways, 
the impact on law enforcement, not to mention, of course, the 
billions of dollars of drugs that are sold in the country. So 
let me focus on this.
    Despite the enormity of the challenge that the Federal 
Government is facing and our country is facing from these 
networks, we learned when we were there, but also from a 
Government Accountability Office (GAO) report that was issued 
coincidentally on Monday, that there is a real lack of 
coordination between ICE, ATF, and DEA--three agencies of our 
Federal Government that are charged with stopping the cartels' 
various activities.
    The GAO report particularly noted that ICE was not 
participating in the main organized crime fusion center in our 
country, and Committee staff learned that ATF only participates 
in three of the eight Border Enforcement Security Task Forces 
(BESTs) run by ICE across the Southwest border and none in 
    So I want to ask you generally to speak to the Committee 
about the extent to which you are aware of this lack of 
coordination, which really is intolerable in the midst of the 
common enemy we have here and the Mexican people have in the 
drug cartels, and what specific actions you will take, if 
confirmed, to ensure that ICE is actively coordinating with at 
least, and most particularly, DEA and ATF, which, for the 
record, are both a part of the Justice Department.
    Mr. Morton. Thank you, Senator Lieberman. Let me start by 
saying, as a Federal prosecutor, I am very familiar with the 
issues of turf wars and differences of views of responsibility 
and jurisdiction. I do not think they have a positive place in 
Federal law enforcement as a general matter, and I particularly 
do not think they have a place in the fight along the Southwest 
border, which is a central focus for us right now. It needs to 
have our full attention, not just as an agency but as a 
Department and a broader government.
    I am aware of the turf issues that you describe between DEA 
and ICE and between ICE and ATF. I am familiar with the issue 
at the fusion center. I am familiar with the issue when it 
comes to trafficking in firearms and the participation in the 
various BESTs along the border and the broader question of 
anti-narcotics enforcement.
    What I can say at this point is, first, I do not believe 
that these issues are insurmountable. Indeed, I intend to focus 
on them immediately. I have had some discussions with my 
colleagues at the Department of Justice, where I presently 
serve as the Acting Deputy Assistant Attorney General. And I 
know the new Acting Director of the ATF, Ken Melson. He is a 
long-time colleague, and I can assure you that I intend to, if 
confirmed, sit down with these leaders and try to resolve these 
issues promptly, in good faith, based on our collective shared 
experience as prosecutors knowing that we have to come together 
on these issues.
    Chairman Lieberman. Well, that is a very reassuring answer, 
both in terms of your recognition of the problem and your 
willingness to make it a priority item, if confirmed, and the 
fact that you know the people in the Justice Department who 
will be involved in this. No one gains from this lack of 
coordination except the drug cartels and the human-smuggling 
networks. So we are going to follow that on the Committee and 
look forward to hearing from you as you go on.
    Let me ask one more question. The folks at ICE, as you 
probably know, have repeatedly complained that the Immigration 
and Customs Enforcement operation is hindered in its 
investigations of smuggling organizations because it lacks some 
legal authority. Specifically, ICE lacks Title 21 authority to 
pursue drug-related investigations. In fact, ICE is operating 
under a Memorandum of Understanding (MOU) with the Drug 
Enforcement Administration that only grants this authority to 
1,500 of your agents, which is, I believe, about a quarter of 
the workforce.
    Given the enormous challenge posed by the Mexican cartels, 
it seems to me the Federal Government needs to enhance the 
number of agencies and personnel working to defeat them, not to 
place arbitrary limits on the number of investigators who can 
work drug cases. Obviously, the cartels are fueled by the money 
they launder. Its stored value cards are increasingly being 
used by smugglers to circumvent reporting requirements at the 
border because they are not legally considered financial 
    So let me ask you first, what legal authorities do you 
believe ICE needs to be given in order to better target 
smuggling organizations operating in the United States? And, 
specifically, do you think that your agents at ICE should be 
given Title 21 authority across the board?
    Mr. Morton. I do, Senator. In my view, one of the principal 
responsibilities of the agency is to secure the border, and we 
are facing very sustained, organized threats to the United 
States in terms of trafficking of drugs, money, people, guns, 
and it does not make sense for ICE not to have clear authority 
to deal with all forms of illegal contraband, particularly in 
the context of border enforcement and enforcement at ports of 
    ICE, as you note, does exercise Title 21 authority in very 
limited circumstances now. This is one of the turf issues that 
I intend to address promptly, if confirmed, and the question is 
whether or not we can revise the MOU to make it more of a 
rational arrangement between the agencies to all come together 
and get this job done or whether legislation is needed.
    I do not have a firm opinion on this at this point, but I 
am aware of the issue and intend to address it.
    Chairman Lieberman. Again, an encouraging response. Please 
keep in touch with that because I agree with you that there is 
just no sense, except for turf protection, for your agents not 
to have Title 21 authority.
    As I understand it, you are operating under a series of 
Memoranda of Understanding with both DEA but also Customs and 
Border Protection (CBP) and ATF that were pretty much all 
written prior to the creation of the Department of Homeland 
Security, and in fact, some of them go back to the 1970s. So I 
urge you please to make that a priority as well and keep us 
    Thank you. My time is up. Senator Collins.
    Senator Collins. Thank you, Mr. Chairman.
    Mr. Morton, I mentioned in my opening comments my concern 
about this Administration's proliferation of czars and special 
assistants rather than relying on the people who have the 
statutory authority and responsibility to carry out the 
functions. Secretary Napolitano recently appointed a border 
czar who is going to report directly to the Secretary and 
advise her on border security and cross-border smuggling. 
Obviously, this position is not Senate-confirmed, but does have 
a direct report to the Secretary.
    It seems to me that the roles and responsibility of that 
czar are going to conflict with your responsibilities as well 
as those of the Commissioner of Customs and Border Protection.
    Do you have any concerns about having another individual 
who is a direct report to the Secretary making it more 
complicated as far as your ability to carry out your legal 
    Mr. Morton. Senator, at this point I do not. My 
understanding of Mr. Bersin's role is that, as you say, he is 
an adviser. His principal responsibility is one of facilitation 
and coordination among the many components within the 
Department that have some responsibilities along the border, 
but that it is not an operational one, that the Secretary fully 
intends and expects that whoever is confirmed as the Assistant 
Secretary for Immigration and Customs Enforcement is going to 
lead and direct that agency's day-to-day operations. And if I 
am confirmed, I can tell you that is exactly what I plan to do.
    I know Mr. Bersin from my time at the Department of 
Justice. He has a lot of experience along the border. I look 
forward to getting his perspective and advice. But I do not 
anticipate any difficulties in pursuing my tasks and 
responsibilities under the statute.
    Senator Collins. I am glad to hear that. I would point out 
to you that I would hope that your role is not just as the 
operational manager, but I would hope that you are the primary 
adviser to the Secretary in this area. Do you see yourself as 
having an advisory role to the Secretary as well as strictly an 
operational role?
    Mr. Morton. Absolutely. I consider myself to be the 
principal policy adviser to the Secretary on those matters 
within the jurisdiction of the agency. I would not have 
accepted the nomination if I felt otherwise.
    Senator Collins. Thank you. That is reassuring to hear, and 
I think you could understand from our perspective, we have 
oversight, we confirm you, but if another person is going to be 
developing policy recommendations and giving advice, that also 
creates confusion in terms of our ability to effectively 
exercise our oversight responsibility.
    Let me turn to a different issue. In 2006, the Portland 
Press Herald, a major newspaper in my State, did an 
investigation into the H-1B visa program and discovered that 
there were companies that set up shop in Maine, but really did 
not appear to have any legitimate business operations in Maine. 
And it appeared that they were applying for foreign workers in 
the State of Maine in order to receive a Department of Labor 
certification to pay them at a lower prevailing wage than would 
be the case in a more urban setting. And the evidence suggested 
that the individuals were never working in Maine; once they got 
the certification of the lower rate, the individuals were, in 
fact, working elsewhere, and these companies were really just 
shells that did not have operations in our State.
    I asked for an investigation into this area. Citizenship 
and Immigration Services (CIS) assessed that the amount of 
fraud in the H-1B visa program is almost 21 percent--clearly 
unacceptable, particularly in a time of high unemployment in 
our country.
    In addition, GAO found that ICE accepted only 26 percent of 
the immigration benefit fraud cases that were referred. 
Obviously, there is a joint responsibility where CIS flags the 
potential fraud, but then, as I understand it, it goes to ICE 
for further investigation and enforcement.
    First, are you aware of the problem of fraud in this 
program? This program, by the way, is very important to 
legitimate businesses, particularly those with seasonal labor 
needs that they are unable to meet through American workers. 
But that level of fraud is totally unacceptable. Are you aware 
of this problem?
    Mr. Morton. I am, Senator. Indeed, I have spent many years 
prosecuting widespread fraud in the permanent labor 
certification program, which is a sister program to the H-1B. 
And I have prosecuted a number of cases where the fraudulent 
submissions were literally in the thousands. And I completely 
share your sentiment. Here we have very important programs to 
the interests of the United States where we are allowing people 
to come here to perform specific tasks with specialized skills, 
and it makes no sense for those programs to be marked by a high 
degree of fraud. One, that undermines confidence in those 
programs in the first place. It detracts from the people who 
are trying to play by the rules. And, very importantly, it 
means that a great deal of resources at CIS are being spent--
and at the Department of Labor--on adjudicating claims that are 
fraudulent or false.
    I worked with the Department of Labor for several years to 
help them improve the integrity of their own program in the 
permanent labor certification program, and I look forward to 
working with them in the other areas.
    I also note that the office that you mentioned, Citizenship 
and Immigration Services, the Office of Fraud Detection and 
National Security, they do a number of analyses periodically of 
the various visa categories, and I think there needs to be an 
even closer working relationship between ICE and that office. 
In my view, one of ICE's primary responsibilities is to ensure 
the integrity of the system--this is about keeping the system 
honest. The system brings lots of good people here for good 
reasons, but it needs to be marked by integrity, and my job is 
to work with the leaders at CIS to ensure that happens.
    Senator Collins. Thank you. That answer is very reassuring 
to me, that you will make it a priority. I also think it speaks 
to a real problem within the Department that one agency is 
flagging so much fraud, and yet the agency that has to carry 
out the enforcement is only accepting 26 percent of the cases. 
Now, there is far too much fraud at the threshold level, and 
that involves the Department of Labor's processes as well. But 
then when it is flagged, to not have it pursued is a signal to 
these fraudulent companies to just keep going forward, and we 
cannot have that. One of the problems is we need higher 
monetary penalties so that there is a real price to be paid, 
literally. Thank you. Thank you, Mr. Chairman.
    Chairman Lieberman. Thank you very much, Senator Collins. 
Good questions. Senator Burris, you are next.


    Senator Burris. Thank you, Mr. Chairman. I want to 
congratulate you, Mr. Morton, on your nomination. I understand 
that your record in the Justice Department is outstanding and 
impeccable, and it has been a good decision by the President to 
move such talent into such an important agency. So 
congratulations to you, and I am looking forward to your being 
successful at ICE.
    Let us turn, however, to a major concern in my State. In my 
State, there is a concern with 287(g). Are you familiar with 
that regulation?
    Mr. Morton. I am indeed.
    Senator Burris. And are you familiar with what is happening 
in the area where you have these agreements with local law 
enforcement to help the so-called contraband and other illegal 
products that are coming into the various States and what has 
been taking place with local law enforcement there when there 
are minorities involved? There is now a great deal of racial 
profiling. And when I was Attorney General of my State, one 
thing that I really moved on in two key areas of my State was 
racial profiling by local police officers. For instance, in one 
community from East Saint Louis, if they went over into the 
Belleville community, they were just being stopped because they 
were black. And what I am hearing now in terms of what ICE is 
doing in some of our Hispanic communities, they are just 
stopping individuals on unrelated or just trumped-up charges 
and seeking to determine whether or not they are there 
legitimately or illegitimately, which is not a reason for stop 
and seizure or a reasonable belief by the law enforcement 
officers that a crime has been committed. They are just 
stopping them because of their outward appearance.
    Now, I understand that in your testimony you said you are 
going to certainly continue to support 287(g), but I am 
concerned about the agreement that goes with these local law 
enforcement officers, and what do you plan to do when you are 
in the position to stop the racial profiling?
    Mr. Morton. Senator, a few things. I am not aware of the 
particular concerns in your State, but I am aware generally 
that there have been concerns about the implementation and 
execution of 287(g), which is a statutory authority that 
Congress has provided for.
    Here is what I would say generally in terms of 287(g): As a 
Federal prosecutor, I am very supportive of Federal efforts to 
coordinate and support State and local law enforcement and work 
together to address the challenges in their communities, and I 
think that also applies in the context of the work that ICE 
    That said--and this is where I think some of the specific 
attention needs to be placed with regard to 287(g)--that 
coordination needs to be done with very careful oversight, 
training, and basic integrity. Particularly in the context of 
287(g), you are talking about the delegation of some degree of 
Federal immigration enforcement authority, and we need to make 
sure that it is done under clear guidelines, with appropriate 
training, and when allegations of racial profiling or abuse are 
raised, there are mechanisms in place for a prompt and 
independent investigation of those claims; and if there are any 
problems, they are addressed directly and on the merits.
    Senator Burris. If you are confirmed, would you be willing 
to hold a moratorium until you are sure that all of the local 
law enforcement officers have been properly trained and 
understand what the authority is under 287(g), which is not to 
stop people just based on the color of their skin? I am 
wondering whether or not you would be able to move in that 
    Mr. Morton. Senator, what I think I could say is, if I were 
confirmed, I can commit to you that I will review very 
carefully the program--287(g) operates in two distinct models, 
and one of them is a more sustained model in local, State, and 
county prison facilities where the Federal Government and the 
local authorities are coming together to identify and remove 
    Senator Burris. May I interrupt you there, Mr. Morton?
    Mr. Morton. Yes, sir.
    Senator Burris. Because we see that, when they go into the 
criminal facilities, they are using that entry into criminal 
facilities also for ICE purposes. And so you have to look at 
that section of it very closely, as well as local law 
enforcement officers stopping people on the streets.
    Mr. Morton. Senator, I intend to look at both. I am aware 
now that ICE is in the process of reviewing the memorandum of 
agreements that are issued to make sure that they are uniform, 
that they have the appropriate safeguards in place, and I very 
much want to join that process, if confirmed, and make sure 
that the agreements meet the needs of the Federal Government, 
meet the needs of the State and local governments involved, but 
at the same time do so in a way that civil rights and liberties 
are protected and that there are clear safeguards in place in 
case there are abuses.
    A number of these agreements are ongoing and reflect 
agreements in place, and I think we need to look at those as 
well and see if some of them either need to be modified or, if 
the case might be with particular abuses, restricted or 
    Senator Burris. Well, I am hoping that when you are 
confirmed--and you certainly will have my vote--you will be 
looking at this very closely because, in my few days in the 
U.S. Senate, I have had more complaints about local law 
enforcement officers in the county jails and on the streets 
doing racial profiling. And I am hoping that you would 
certainly be on top of that so that we catch the bad guys, but 
we do not interfere under our democratic system with people 
just because of the color of their skin. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Lieberman. Thank you, Senator Burris, for a very 
important line of questioning.
    Senator Akaka.


    Senator Akaka. Thank you very much, Mr. Chairman. Mr. 
Morton, I want to congratulate you on your nomination.
    \1\ The prepared statement of Senator Akaka appears in the Appendix 
on page 23.
    Mr. Morton. Thank you.
    Senator Akaka. I want to also welcome your lovely family 
and friends here today.
    As we all know, Immigration and Customs Enforcement needs 
strong leadership at this time, and I believe you will be 
someone who can lead that agency. ICE, as we all know, has 
struggled with poor morale and creating a cohesive culture. 
Additionally, ICE has a wide range of responsibilities, making 
it especially important to manage the agency's resources 
efficiently and to appropriately coordinate and prioritize its 
activities. ICE needs your help and your leadership with all of 
these issues.
    But I am pleased that improving immigration detention 
standards, refocusing worksite enforcement on employers, and 
reviewing Federal Protective Service operations are your 
priorities as well. And these are important and challenging 
issues, and I look forward to seeing the changes that you will 
bring forth.
    My concerns with ICE have been many, particularly regarding 
oversight of employees in the field. The standards set at 
headquarters must be communicated to employees in the field and 
effectively implemented. ICE has very few senior executives, I 
discovered, relative to the number of investigators and other 
employees in the field compared to other Federal law 
enforcement agencies.
    What are your plans for reviewing ICE's management 
structures and ensuring that employees receive an appropriate 
amount of oversight and supervision?
    Mr. Morton. Senator, you have hit on a very important point 
for me, which is when we describe what my priorities would be, 
if confirmed, there are a number of them that are specific to 
the enforcement activities of the agency. But there are a 
separate set of very important management priorities for me.
    I think the agency needs to spend more time and attention 
on the management of some of its major programs, some of which 
we have already touched on--detention--and I think that also 
extends to some of its basic work as a large employer: 
Recruiting and training, identifying and promoting the best and 
brightest, setting very clear expectations for the employees, 
the men and women of ICE, of what our priorities are, how we 
are going to go about them, how we expect the agency to carry 
out its duties, and then providing for a much greater degree of 
accountability and transparency at ICE.
    I think the agency in the past has not been able to 
describe its mission and successes as well as it should have to 
the broader public, to the Congress, to the many people who 
have a very vested interest in how it carries out its duties. 
And I would very much like to see the agency improve its 
ability to account for its actions, to explain them, and to be 
as transparent as possible.
    Senator Akaka. As you suggested, Mr. Morton, hiring highly 
qualified people and providing them good training are two of 
the most important ingredients for promoting good performance. 
And this, I feel, has been lacking, and we really need to 
upgrade it.
    What will you do to improve recruitment and training for 
ICE employees?
    Mr. Morton. One of the things I want to do, Senator, if 
confirmed, is to build on some work I believe my predecessor, 
Julie Myers, started and that was to take a look at the hiring, 
recruiting, and promotion practices across the agency. And I 
think the initial work started there identified that many 
different parts of the agency had their own programs and that 
there was not a uniform and unifying theme. And I want to take 
a very hard look at that to make sure that we are working 
together as an agency following the same basic sets of 
principles in recruiting and promoting people.
    I also want to reach out to a number of the stakeholder 
groups within the employee community within ICE to get their 
ideas on, are we going to the right places to ensure vigorous 
recruitment and hiring of the people that we need to make the 
agency a success, to ensure an appropriate level of diversity, 
to provide for the training and experiences and opportunities 
necessary for some of our best and brightest at the lower ranks 
to develop through the years and then become the senior 
managers that are going to lead the agency in the future when, 
I, if confirmed now, will not be there anymore.
    As a lifelong Federal employee, I feel a great duty and 
responsibility to the institutions for which I have worked, and 
if confirmed, I very much want to focus on improving the 
management at ICE, the people that are there, the opportunities 
that are there for them, so that when it comes time for me to 
move on and do something else, I can look at the Members of 
this Committee and others and say, I did a lot to try to 
improve the management of the agency and leave it in a better 
place than when I found it.
    Senator Akaka. Well, I want to thank you for your plans. 
Let me just say that morale has been one of the problems, and I 
am glad to hear that you are thinking of trying to energize the 
workplace and improve morale by helping to reward your people, 
and I certainly look forward to your work there and your 
    Thank you very much, Mr. Chairman.
    Chairman Lieberman. Thanks, Senator Akaka.
    Following up on Senator Akaka's questions, I want to enter 
into the record--they arrived late so I did not get to mention 
them--two letters of support for your nomination: One from 
David Wright, President of American Federation of Government 
Employees (AFGE) Local 918, representing the Federal Protective 
Service nationwide; and the second from Patrick Remigio, 
President of AFGE National Council 118, operating out of 
    \1\ The letters of support appear in the Appendix on page 82.
    I would say that the staff told me, after some time on the 
border areas, that just talking to ICE rank-and-file employees, 
there is a high sense of hopefulness about your arrival. So 
that is good news.
    Senator McCaskill, thanks very much for being here, and we 
call on you now.


    Senator McCaskill. Thank you very much, Mr. Chairman.
    Congratulations on your appointment. I am so pleased that 
you are a prosecutor, you have been in the courtroom, and you 
know what makes a case and what does not make a case. I think 
it is an incredibly important credential for your job, which 
leads me to my theme, which I have been hammering for as long 
as I have been here, and that is, as a prosecutor, you know 
there are two kinds of crimes: The kind you can deter and the 
kind you cannot deter.
    Immigrants crossing the border to try to feed their 
families are coming for jobs. They are not coming for 
vacations. As long as the jobs are here, if it is a choice of 
whether or not they can feed their families or not, they are 
going to come. And, frankly, we can do the best job possible 
and we need to do a much better job on the border, but the most 
effective way to really make a change in illegal immigration in 
this country is, in fact, enforcing the law as it relates to 
that magnet job. And that is a crime we can deter. If business 
people believe there is a true risk associated with hiring 
illegal immigrants, you will see a bold change in hiring 
practices in this country. But under the last Administration, 
there was absolutely no fear that there was ever going to be 
any meaningful enforcement of the law against employers who 
were knowingly hiring illegal immigrants.
    As you are aware, I was shocked when your predecessor could 
not even tell me how many employers had been prosecuted for 
knowingly hiring illegal immigrants, and after a lot of back 
and forth, we finally now are beginning to get some statistics. 
The last year's statistics we have, which is fiscal year 2008, 
there were a little over a thousand worksite enforcement 
actions taken with criminal consequences, and only 135 of those 
were employers.
    You and I both know that is an embarrassingly low number 
based on the amount of criminal activity that is occurring in 
this area.
    What is your commitment in this regard? And, most 
importantly, how are you going to organize it? Are you going to 
have a section of your office that is, in fact, prioritizing 
employers who are knowingly hiring? And you and I both can 
probably sit around a table and come up with some pretty good 
ideas on how we could catch these guys. It would not be hard. 
This, frankly, as undercover operations go, would be a walk in 
the park. All you would have to do is begin to develop 
intelligence about where there are employers who are hiring 
people without any regard to their documentation, and then send 
some people in without documentation, see if they get hired. 
And then, instead of having the cameras rolling for herding up 
all these people and trying to have a big splash that we are 
really doing something about illegal immigrants, you would have 
the kind of headline that would strike fear in the hearts of 
businessmen all over this country who are not playing by the 
rules. And, frankly, it is fair to those businessmen who are 
playing by the rules, and that is the vast majority who are 
trying to do it right. And I would love your take on this whole 
    Mr. Morton. Senator, thank you. As you and I discussed when 
I first met you, this is an area that I intend to bring great 
focus to. When I first went to work as a trial attorney at the 
now abolished Immigration and Naturalization Service, one of my 
duties was worksite enforcement, and we routinely audited and 
brought civil fines against employers. And in 1996, there were, 
I think it was, $25 million worth of fines. That went to zero 
in 2005 and 2006, no fines whatsoever of employers.
    That is something that I want to take a very serious look 
at. That is an important enforcement power provided by 
Congress, and it strikes me as one that should be used. 
Criminal investigation and prosecution are obviously critical. 
We need to do more of that.
    I am concerned that there was an imbalance between the 
number of workers prosecuted and the number of employers 
prosecuted, and it strikes me that if we are going to make 
serious headway on reducing illegal immigration to this 
country, we have to have very serious worksite enforcement, and 
it has to focus on the employer and encourage people to play by 
the rules and punish those who do not.
    There is a lot of existing authority in the statute that 
allows that to be done, both in the criminal context and also 
in the civil context, and I very much would look forward, if 
confirmed, to working with the many Senators who I think care 
about this issue and want to see a different and more robust 
approach. And I can assure you that it is going to be a focus 
for me, and I look forward to talking to you more about it.
    Senator McCaskill. Is there a delineation in the office now 
in terms of investigation between investigations centered on 
employers versus investigations centered on the illegal 
    Mr. Morton. I am not sure if there is a formal delineation. 
I have received some briefings on the past approach, but I am 
not aware of that delineation. I do think from the agency's 
perspective they have undertaken a number of investigations. It 
is a question of whether they need to do more, and I think we 
do. But I am not aware of a formal delineation. There might be 
one; I am just not aware.
    Senator McCaskill. Well, I know this, that we have 
incredible investigative tools in our government, and it would 
not be complicated because, frankly, there are a lot of places 
where you could go and you could watch them take them off the 
worksite in a truck, stuff them all in an apartment, and be 
there on Friday when they pay them all in cash, and check and 
realize that none of those folks has even been put on the 
    There is a huge underground economy here. It really would 
be like shooting fish in a barrel if there was any priority at 
all given to this. So I will be looking forward to seeing some 
of those fish float. And I am confident that you know how to do 
this. I am confident that you realize what the priority is, and 
with very little investment, we could have a huge impact. It is 
a great cost-saving tool in terms of investigative dollars 
because you are going to really shut down a lot of the illegal 
immigration if you can begin to make sure folks understand 
there are consequences when they knowingly hire people who are 
not supposed to be here.
    Thank you. Good luck to you, and I look forward to working 
with you.
    Mr. Morton. Thank you.
    Chairman Lieberman. Thanks, Senator McCaskill. You have 
hammered away at that, but in the public interest. I am not 
prepared to call you ``The Hammer'' yet because we have retired 
that title.
    Senator McCaskill. We have.
    Chairman Lieberman. There was somebody in the House who had 
that title.
    Senator Collins. Tom DeLay, right. [Laughter.]
    Chairman Lieberman. We will leave a period of time, and 
then we will reinstitute it. Anyway, you have done great work 
on this, and we look forward, Mr. Morton, to you helping 
Senator McCaskill in this quest, which we share with her.
    I want to ask one question, and if any other Members of the 
Committee has another one, I will welcome them. I just want to 
ask you generally about the detention policies and to explain 
very briefly. I did not know about this until I read a report 
issued by the U.S. Commission on International Religious 
Freedom in 2005 about our Nation's treatment of asylum seekers, 
and it was deeply troubling because of really deplorable 
conditions that these folks are put under and the fact that 
they do not have the traditional access to immigration judges 
to appeal any of the conditions of their detention.
    And I suppose I was being personal about it because--you 
mentioned you are a child of immigrants--all four of my 
grandparents were immigrants. They came to America in that 
great wave of immigrants that came mostly from Europe at the 
early part of the 20th Century. They came for economic 
opportunity and freedom, including, in their case, the kind of 
religious freedom that they did not have in the places from 
which they came.
    Of course, they came at a time when, generally speaking, 
all you had to do was arrive and not carry one or another 
terrible disease, and you were an American. At least you could 
come into the country. So I found it deplorable that people 
coming here asking for asylum based on political discrimination 
at home, religious discrimination, or other forms are subjected 
to this kind of detention while their cases are being 
    I understand that they probably, in the normal course of 
human events, do not have a justifiable claim to asylum here, 
but we are just treating them in a way that is not only 
inhumane but, based on the words on the base of the Statue of 
Liberty, un-American.
    So I wanted to ask you, generally speaking, what you hope 
to do about it in terms of the detention, beginning with 
exploring a system where we make some rational determinations 
about whether some of these folks are simply not a risk of 
flight or a threat to public safety. We ought to have an 
adjudicative process of some kind to determine that.
    Incidentally, apart from the embarrassment of the way we 
treat them, it costs an enormous amount of money to keep 30,000 
people locked up every day--money we could spend in a lot 
better way. Then the second part of it is the medical facility.
    So I just wanted to get on record your reaction to the 
status quo with regard to detainees.
    Mr. Morton. Senator, as you and I discussed when I first 
met you, this is an area of particular concern and focus for 
me. It is an enormous amount of taxpayer expenditure.
    Chairman Lieberman. Right.
    Mr. Morton. It is roughly 40 percent of the agency's 
resources going into the detention and removal system.
    Chairman Lieberman. What is the dollar estimate, just 
generally? I will not hold you to it.
    Mr. Morton. It is $1.5 billion.
    Chairman Lieberman. Billion, it is astounding, just to 
house these people.
    Mr. Morton. And the necessary employees.
    Chairman Lieberman. Yes, right.
    Mr. Morton. Let me be clear. The power of detention is a 
very important power to carrying out the duties of the agency 
and to securing the border.
    Chairman Lieberman. I agree, right.
    Mr. Morton. The agency does need to detain people who are a 
risk of flight and a danger to the community or where Congress 
has otherwise provided for by law. But I think we need to take 
a hard look and make sure that the people we are detaining are 
being detained for those reasons and they are being detained in 
conditions and facilities that are commensurate with their risk 
of flight or danger.
    Over the decades, we have developed a system that is 
largely dependent on using facilities designed for 
incarceration as opposed to civil detention, and particularly 
when you are talking about non-criminal respondents in the 
immigration system or people who have particular 
vulnerabilities, it does not jump out at you as that being the 
right answer. And so I want to take a hard look at that, and 
are there different conditions in which we can detain people, 
even if they are a risk of flight, or are there alternatives to 
detention that we can explore that assure their appearance and 
compliance without having to go through the expense to the 
taxpayer of detaining people.
    I think, as you alluded to, providing for uniform medical 
care that is consistent with our obligations as the detainer is 
really important. The system, again, has some unevenness. Some 
health care is provided for certain detainees by the Division 
of Immigration Health Services, but for others, different 
providers provide for it, and that needs a lot of attention.
    I think that, as I said earlier, this is not a question of 
whether or not the agency detains people, but it is a question 
of who does it detain, how does it detain them, and are there 
better ways to do this--and I think there are--that are a 
greater sense of innovation, more targeted to the populations 
that we are, in fact, responsible for. It is a very weighty 
exercise of government power, and it needs to be done 
    Chairman Lieberman. Well, thanks for that thoughtful and 
encouraging answer, and, of course, I agree with you that there 
are people who need to be detained. The question is, obviously, 
do they all need to be detained? People who are arrested for 
illegal immigration status probably have a higher risk 
generally of flight than somebody who comes in as an asylum 
seeker, but every case has to be determined on its merits. But 
you are right that regardless of why they are detained, there 
ought to be a uniform standard of medical care for these folks. 
I thank you for that.
    Senator Collins.
    Senator Collins. Thank you, Mr. Chairman. I have a few more 
questions, but I am going to submit them for the record, and I 
do want to say that I intend to support the nominee.
    Chairman Lieberman. Thanks very much. Thank you, Senator 
    Senator Akaka, do you have another question?
    Senator Akaka. Yes, Mr. Chairman. Let me ask one more.
    Mr. Morton, the Federal Protective Service relies very 
heavily on contract security guards to protect Federal 
buildings, and approximately 1,100 FPS employees oversee 15,000 
contract security guards. How do you plan to ensure that 
contract security guards are overseen effectively? And do you 
plan to review this ratio of contractors to Federal employees 
at FPS?
    Mr. Morton. I do, Senator. I think, as I mentioned in my 
remarks, the work of the FPS is one of the priorities that I 
need to attend to, if confirmed. The FPS has such important 
responsibilities that we just have to get it right. And I am 
aware of the statutory requirement to bring the number of full-
time Federal employees up to 1,200, and I very much intend to 
see that is done.
    As you note, the agency is very dependent on contractors, 
and a large number of contractors, and I have a fair amount of 
experience in my present job with contractor oversight issues. 
And there are many instances in which contractors provide a 
very useful and important function to the government. But I 
want to take a very close look at the ratio at FPS. Do we have 
such a large number of contractors because it fits an 
appropriate set of goals that the agency is pursuing? Or is it 
more a question of resources?
    My sense is that it is very important when you are in the 
world of law enforcement to have strong oversight and direction 
from Federal employees. That is not to say that you cannot rely 
on contractors for some portion of the work, but that needs to 
be carefully thought through, and I am inclined, wherever 
possible, to see that direction and leadership is provided by 
Federal employees.
    I am very familiar with that particular issue with regard 
to FPS. I am also familiar with some of the funding issues--it 
is a fee-based arrangement--and whether or not that is 
something that needs more attention. So what I can say to you 
at this point is I intend to focus on FPS. I think it is a very 
important part of what the Department does. And I think you 
will find that I will give it sustained attention, if 
    Senator Akaka. Mr. Chairman, if you would permit just one 
more short question?
    Chairman Lieberman. Go right ahead, Senator.
    Senator Akaka. Yes. I understand, Mr. Morton, that ICE 
started collective bargaining negotiations with its union 
nearly 2 years ago, and there still is no agreement. Will you 
make finalizing those collective bargaining negotiations a 
    Mr. Morton. Yes, in a word. I am aware that the 
negotiations are underway. I want to do the best I can to 
improve and strengthen the labor-management relationships at 
ICE. Obviously, right now I am not privy to what the particular 
issues are that are on the table for negotiations, but I intend 
to learn about them and see it through.
    Senator Akaka. Thank you so much for your responses. Thank 
you, Mr. Chairman.
    Chairman Lieberman. Thank you, Senator Akaka.
    Mr. Morton, thanks for your testimony. You are really a 
superb nominee, and I will give you my full support.
    The record, without objection, is going to be kept open 
until 12 noon tomorrow for the submission of any written 
questions or statements for the record. I hope you will do your 
best to answer them as rapidly as possible. And we are going to 
try our best to get you out of the Committee and confirmed 
hopefully by some time next week. So I thank you for your 
willingness to serve. I miss the fact that your wife made a 
rational decision and left the room with the children who were 
so pleasant to look at. [Laughter.]
    I thank you. We look forward to working with you.
    Mr. Morton. Thank you.
    Chairman Lieberman. The hearing is adjourned.
    [Whereupon, at 12:33 p.m., the Committee was adjourned.]

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