[Senate Hearing 111-573]
[From the U.S. Government Publishing Office]
S. Hrg. 111-573
NOMINATION OF JOHN T. MORTON
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HEARING
before the
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
of the
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
NOMINATION OF JOHN T. MORTON TO BE ASSISTANT SECRETARY, U.S. DEPARTMENT
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
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
JON TESTER, Montana
ROLAND W. BURRIS, Illinois
MICHAEL F. BENNET, Colorado
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
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Opening statements:
Page
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
WITNESS
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
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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
Collins.
OPENING STATEMENT OF CHAIRMAN LIEBERMAN
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
organizations.
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.
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\1\ The prepared statement of Senator Lieberman appears in the
Appendix on page 21.
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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.
OPENING STATEMENT OF 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.
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\1\ The prepared statement of Senator Collins appears in the
Appendix on page 25.
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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
offices.
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
will.
TESTIMONY OF JOHN T. MORTON \1\ TO BE ASSISTANT SECRETARY, U.S.
DEPARTMENT OF HOMELAND SECURITY
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.
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\1\ The prepared statement of Mr. Morton appears in the Appendix on
page 27.
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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
security.
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
mission.
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
crime.
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
excellence.
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
confirmed?
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
Arizona.
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
instruments.
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
entry.
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
posted.
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
responsibilities?
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.
OPENING STATEMENT OF SENATOR BURRIS
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
does.
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
direction.
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
criminal----
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
terminated.
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.
OPENING STATEMENT OF SENATOR AKAKA\1\
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.
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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
confirmation.
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
Tucson.\1\
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\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.
OPENING STATEMENT OF SENATOR MCCASKILL
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
issue.
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
immigrant?
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
books.
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
determined.
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
carefully.
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
Collins.
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
confirmed.
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
priority?
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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