Department Of Homeland Security Appropriations Act, 2008

Floor Speech

DEPARTMENT OF HOMELAND SECURITY APPROPRIATIONS ACT, 2008 -- (Senate - July 25, 2007)

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Mr. CORNYN. Mr. President, I rise to join my colleagues in support of the Graham amendment, of which I am pleased to be a cosponsor, and to provide my colleagues some information I found particularly revealing in the form of a four-part series in my hometown newspaper, the San Antonio Express News, written in May of 2007. The author of the series, a reporter by the name of Todd Bensman, chronicles the movement of an Iraqi individual from Damascus, Syria, to Detroit, MI. It is particularly instructive, as we are contemplating this amendment and the importance of funding border security measures, that this kind of information be brought to the attention of the Senate.

I ask unanimous consent to have the first of the four-part article from MySA.com entitled ``Breaching America: War refugees or threats?'' printed in the Record at the conclusion of my remarks.

The PRESIDING OFFICER. Without objection, it is so ordered.

(See Exhibit 1.)

Mr. CORNYN. Mr. Bensman, in this article, found the following in his investigation, and I will summarize. More than 5,700 illegal immigrants from 43 countries with majority Muslim populations, including state sponsors of terror, have been caught while traveling over the Canadian and Mexican border along well-established underground smuggling routes since 9/11, a traffic that continues today. Mr. Bensman estimates between 20,000 and 60,000 of these so-called special interest aliens, by virtue of their country of origin being countries where terrorism is, unfortunately, alive and well or because they are state sponsors of international terrorism, have gotten through without being caught since 9/11. These migrants, although relatively small in total numbers, are high risk because they hail from countries where American troops are actively battling Islamic insurgents, nations where radical Islamic organizations have bombed U.S. interests or murdered Americans. Unguarded U.S. borders are most certainly in the terrorists' playbooks as a means of entering the country. Since the late 1990s, at least a dozen confirmed terrorists have sneaked over U.S. borders, including operatives from Hezbollah, Hamas, Tamil Tigers, and one al-Qaida terrorist once No. 27 on the FBI's most wanted terrorist list.

On the U.S. side of the border, the FBI is supposed to interrogate and conduct a threat assessment and interrogations on every captured special interest alien, but the process is severely flawed and open to error. Often, the FBI signs off on captured special interest aliens, allowing them access to the political asylum process without conclusively knowing whether they are or are not associated with terrorist organizations. Furthermore, Border Patrol agents are simply using expedited removal processes to kick special interest aliens back over the border into Mexico, where they will certainly try to cross again, with no investigation and no FBI referral whatsoever.

This series of articles published in the San Antonio Express News will be an eye-opener for the people of this country.

Frankly, those of us who are Members of the Senate have the privilege of having classified briefings from time to time. Of course, we cannot talk about that intelligence information on which we are briefed behind closed doors. But here in the public domain are the results of Mr. Bensman's investigation in chilling detail, chronicling the movement of an individual from Damascus, Syria, to Detroit, MI, via Moscow, Havana, into Guatemala, and then up through Mexico's southern border and into the United States.

I have met with Border Patrol agents. Perhaps the current occupant of the chair and others have had the same experience I have. I asked them, out of the 1.1 or the 1.3 million people we actually detain coming across our southern border, for every person we detain, how many people do you think get across? I have heard estimates ranging from detaining maybe one out of every three to one out of every four. The truth is, nobody knows for sure who gets away. We do know that people who are detained and returned across the border likely try again. So it is hard to get good information.

This is not a matter of solely economic migrants coming from Mexico or Central or South America into the United States. The truth is, Central America and Mexico are a land bridge into the United States for anybody anywhere around the world who wants to come here, anybody who has the money to pay the human smugglers to get them here. Obviously, these could be individuals who want to work and who want nothing but a better life--what we all have and want in America--but it can also be very dangerous people who want to do us harm. That is the reason this funding, this emergency funding for border security, is so important.

It is also important that we begin to regain the lost public confidence that the Federal Government can actually deliver on its promises. We have been telling people for a long time how important it is in a post-9/11 world to know who is coming into our country and why people are coming here. Recognizing that if there is a way to separate the economic migrants and to create an immigration system that would give people an opportunity through legal immigration to come to the United States on a controlled basis, it will then allow law enforcement agencies an effort to target those who are common criminals, drug dealers or, indeed, terrorists or special interest aliens from state sponsors of terrorism.

We were reminded again about the dangers from our porous borders when, on Monday, officials with Immigration and Customs Enforcement announced that they had arrested more than 100 gang members in Texas. These 121 suspects represent 27 different gangs, including the notorious Mexican Mafia and MS-13. Of course, MS-13 is the ultraviolent Central American gang that has come into the United States through our broken borders. More than half of these gang members had criminal charges against them, and nearly half of them were arrested on administrative and immigration-related charges. So we see time and time again, as most recently as the daily newspaper, what the threat is. Yet Congress continues to do not nearly enough to fix it.

This amendment gives us an opportunity to fix the problem at the border. It is not just at the border. We need to deal with our broken immigration system because roughly 45 percent of the people who are illegally present in the country today in violation of our immigration laws came in on a legal visa but simply overstayed and melted into the vast American landscape. So we have to, as this amendment does, make sure we find ways to police visa overstayers. We need to make sure we continue to work on document fraud and identity theft that makes it hard for even good faith employers to determine the legal eligibility of prospective employees to work in America. This amendment is the first big step toward regaining the public's confidence again and demonstrating that we are actually serious about delivering on our promises, not engaged in overpromising but underdelivering, as we have in the past.

I will be offering at a later time some amendments myself. Coming from a border State with 1,600 miles of common border with Mexico, this is a personal issue to many of my constituents, particularly. While some, such as the Senator from Alabama, Mr. Sessions, believe strongly in the need for more fencing along the border, it is controversial along the border in south Texas. I have worked with those local officials and property owners. We have two amendments I will be talking more about later. The consultations we have conducted have been useful in coming up with creative ways to accomplish the nonnegotiable goal of border security.

I noticed most of the property abutting the Rio Grande River is private property. I am not sure the Border Patrol or the Department of Homeland Security has really thought through the fencing idea and what it would mean to condemn through eminent domain proceedings private property along the border in Texas. I am informed that in Arizona and other places, much of the property along the border is already owned by the Federal Government, so we don't have that issue. But I have found in Texas, this is a controversial issue.

I have been pleased to work with my colleague, Senator Hutchison, to make sure that in this amendment and in every opportunity, we have insisted upon consultation with local elected officials and property owners to achieve the most effective means of border security, recognizing that result is nonnegotiable but how we get there should be the subject of consultation and negotiation.

Getting back to the private property issue, one of my amendments will ask the Department of Homeland Security to produce a report talking about the impact on border security due to the fact that much of the property, for example, in Texas is private property and asking them to come back and tell Congress so we can make more intelligent decisions about how to effectively use the taxpayers' money to accomplish that nonnegotiable goal of border security, given the fact that a lot of that property is private property and would require, if fencing was going to be built on it, that some sort of eminent domain proceeding would go forward. Obviously, the ranking member of the Appropriations Committee, the Senator from Mississippi, and the chairman of the Appropriations Committee would want to know whether the Federal taxpayer is going to be asked to pay just compensation for eminent domain proceedings if, in fact, those were contemplated.

There is a lot of beneficial discussion going on as we talk about this with local officials and others. For example, on my many visits to the U.S.-Mexico border in Texas, I have heard local law enforcement officials and the Border Patrol talk about the problems caused by an invasive plant commonly called Carrizo cane. Carrizo cane, as it turns out, grows so big and so fast that not even the night-vision technology used by Border Patrol agents can penetrate the Carrizo cane. It serves as a safe haven for human smugglers and common criminals along the border. If the Federal Government could work with local officials and local property owners to eradicate Carrizo cane, this robust perennial grass that can grow to a height of 20 to 30 feet, multistemmed clumps that resemble bamboo and forms large colonies, it would enhance the natural barrier the Rio Grande River already provides in many places along the border.

Thus, it would also assist the local Border Patrol agents by providing a clear line of sight and ready access to areas that are currently not available to them because of the dense growth of this Carrizo cane.

I am pleased to say the Border Patrol has taken the suggestion and is talking to local officials and property owners. This shows some real promise. But it demonstrates what happens when you have local officials and people who live in the community talking to Federal officials trying to come up with a solution to a common problem.

Now, when the Federal Government--folks operating in the Beltway--decide they have a better idea, and they do not care what local and State officials think about it, well, usually that creates a lot of conflict and it also creates a less perfect solution and maybe not a solution at all.

So I will be offering that Carrizo cane amendment as well as another amendment which would require a report by the Department of Homeland Security on the impact of border security measures on private property owners along the Rio Grande River a little later on.

But I close by saying the threat posed by common criminals--as a result of our broken borders--to drug dealers is very real. As Mr. Bensman's article points out, the access through our broken borders to virtually anybody in the world who has enough money to pay the smugglers to get them in is an open door to people whom we prefer not come here; namely, people who come from countries that are state sponsors of international terror and, perhaps, people with the goals of harming innocent Americans, taking advantage of the same broken borders that yield access to economic migrants.

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Mr. CORNYN. Mr. President, I would like to, if I may, turn to one other issue; and that has to do with the nomination of Judge Leslie Southwick.

I heard the distinguished Democratic whip, majority whip, speak to the Southwick nomination earlier, and I wish to make sure, in fairness, there is a complete consideration of the facts.

Of course, Judge Southwick, the nominee to which the majority whip objects, has been given the highest marks by his peers for the qualities of fairness and compassion by both the Mississippi Bar Association and the American Bar Association on two occasions, both when he was nominated to serve as a Federal district judge and now with his nomination to the Fifth Circuit.

Regarding Senator Durbin's concerns, of course, as a member of the Judiciary Committee, he voted to confirm Judge Southwick to a lifetime Federal bench. So I wonder why, now that he has been nominated to the Fifth Circuit, those concerns have arisen when, in fact, there were no such concerns expressed when Judge Southwick was nominated and confirmed unanimously by the Senate Judiciary Committee to the Federal district bench.

I heard Senator Durbin criticize Judge Southwick for his participation in the case of Richmond v. Mississippi Department of Human Services. The fact of it is, Judge Southwick did not write the opinion Senator Durbin is critical of. Of course, as a judge, unlike a legislator, a judge has no choice but to vote. He voted for the result, for the outcome of the case, but I think it is unfair to attribute the writing of the opinion to Judge Southwick, something he did not write.

Of course, we all deplore the racial slur which was the subject of that opinion. The board determined, from the evidence before it, that the racial slur was an isolated comment, was made outside of the target's presence, was followed by an apology--which I think is significant--which was accepted and did not result in significant disruption of the workplace.

Under Mississippi law, the board's ruling could only be reversed if it was ``arbitrary and capricious, accepting in principle the notion that a decision unsupported by any evidence is by definition arbitrary and capricious.''

The court of appeals majority, including Judge Southwick, operating under a highly deferential standard of review--which is applied in the case of agency decisions routinely--upheld the board's decision and found that there was some evidence to support the board's ruling that the isolated comment did not sufficiently disturb the workplace so as to justify the employee's termination.

The majority made clear it did not endorse or excuse the slur. They said:

We do not suggest that a public employee's use of racial slurs ..... is a matter beyond the authority of the employing agency to discipline.

In other words, they said it would be appropriate to discipline a person for using racial slurs.

Of course, Judge Southwick reiterated his disdain for the use of any racial slurs and has repeatedly told the committee that the use of the word at issue is--in his words--``always offensive''--I would hope we would all agree with that--and ``inherently and highly derogatory.'' At the hearing he said: ``There is no worse word.'' He said it was ``unique'' and that he could not imagine anything more offensive.

In response to a written question from Senator Durbin, Judge Southwick wrote:

Use of this word is wrong, improper, and should offend everyone regardless of the speaker's intent.

I agree.

As a legal matter, the Supreme Court of Mississippi explicitly agreed with the appellate court's conclusion that dismissal was unwarranted. That was the appeal from the Court of Appeals to the Supreme Court of Mississippi. The supreme court said:

In this case, we find that the harsh penalty of dismissal of Bonnie Richmond from her employment is not warranted under the circumstances.

We can agree or disagree with the decision made by the board that reviewed that. We can agree or disagree with the decision of the court of appeals. But I do not know why, after the American Bar Association--the professional organization that reviews Federal nominees--after they have reviewed Judge Southwick's record, including his participation in that decision, and found him to be highly qualified, why we would come back and try to besmirch his reputation as a part of trying to defeat this nomination.

I am sure there will be more discussion about Judge Southwick as we go forward. I hope we are not heading down a very dangerous path again, which is to deny this President's nominees--or any President's nominees--an opportunity for an up-or-down vote. Right now, I know the senior Senator from Mississippi, Mr. Cochran, has been talking to the chairman of the Judiciary Committee, and the chairman has offered a vote for Judge Southwick's nomination in the committee.

But right now Judge Southwick is continuing to have consultation with members of the committee, in hopes he can get an up-or-down vote in the committee and then hopefully come to the floor where we can have a debate which will cover the whole range of Judge Southwick's qualifications and his resume and his record so the Members of the Senate can fairly ascertain for themselves whether he should be confirmed and then have an up-or-down vote.

But right now I hate to see Judge Southwick unfairly criticized by attributing to him something he did not even say, by joining an opinion which was ultimately upheld by the Mississippi Supreme Court in compliance with appropriate legal standards. That is what judges do. They do not decide winners and losers and then try to justify the result. They apply the law impartially to everyone who comes before them. From all appearances, Judge Southwick has been true to that requirement and that great tradition of our judiciary.

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Mr. CORNYN. Mr. President, I disagree with the characterization of the
distinguished majority leader. The objection to the proposed unanimous consent was to only a portion of the original Graham amendment of which I was a cosponsor. It completely overlooked and ignored 45 percent of the illegal immigration in this country caused by people who enter with a visa that is legal but then they overstay. My suggestion to the distinguished majority leader and other colleagues is that we not ignore that 45 percent but, rather, include that as an acceptable expenditure under current law for part of the $3 billion.

He has explained to me that there is objection on his side to including that 45 percent of illegal immigration as part of the accepted expenditures for this $3 billion. I am sure he has accurately reported what his conference or caucus has said. But my concern is that we not spend money on the border security component and then pat ourselves on the back and claim success when, indeed, the proposal would have ignored 45 percent of the cause of illegal immigration. We need an approach that will deal both with border security as well as the interior enforcement caused by visa overstays.

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Mr. CORNYN. Mr. President, I disagree with the characterization of the
distinguished majority leader. The objection to the proposed unanimous consent was to only a portion of the original Graham amendment of which I was a cosponsor. It completely overlooked and ignored 45 percent of the illegal immigration in this country caused by people who enter with a visa that is legal but then they overstay. My suggestion to the distinguished majority leader and other colleagues is that we not ignore that 45 percent but, rather, include that as an acceptable expenditure under current law for part of the $3 billion.

He has explained to me that there is objection on his side to including that 45 percent of illegal immigration as part of the accepted expenditures for this $3 billion. I am sure he has accurately reported what his conference or caucus has said. But my concern is that we not spend money on the border security component and then pat ourselves on the back and claim success when, indeed, the proposal would have ignored 45 percent of the cause of illegal immigration. We need an approach that will deal both with border security as well as the interior enforcement caused by visa overstays.

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Mr. CORNYN. I welcome the opportunity always to work with the distinguished majority leader on legislation, including this legislation. But the fact is, the American people have lost confidence in the Federal Government when it comes to broken borders and our lack of enforcement of our immigration system. It is more appropriate that we contain the requirements in the amendment itself and not in letters he and I might write to the Secretary of the Department of Homeland Security. The fact is, the Department is not going to do anything unless we direct them to do so in legislation.

I regret the distinguished majority leader has to object to my request to include, in addition to border security, provisions saying that the money could be spent for interior enforcement as well. If that is the way it is, that is where we are.

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Mr. CORNYN. Mr. President, I thought we were getting along well until that last comment by the majority leader. I want to solve this problem too. I think my record of involvement in the immigration and border security issue has demonstrated that. I am not interested in scoring political points; I am interested in solving the problem. But I am suggesting that the proposal by the majority leader will not solve the problem. It solves 55 percent of the problem, not the remaining 45 percent.

I assure the distinguished majority leader that I am interested in a solution. That is why I proposed that some of this money would be able to be allocated for interior enforcement, including the 632,000 absconders, people under final orders of deportation who have simply gone underground or who have left the country and then reentered illegally, both of which are classified as felons under the Immigration and Naturalization Act. I would have thought that the majority leader would think that an appropriate use for some of this $3 billion in this amendment, to go after those felons, to make sure our laws are enforced according to the letter of the law as written by Congress. I regret he does not see it the way I do. I guess that is where we are.

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