program this morning. we thank all of the people who participated in this edition of "washington journal." but we will be back tomorrow morning with a brand new addition at 7:00 p.m. eastern. we will see you then. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2011] >> here is a look at what we have to come up for you today on at the c-span and networks. at 2:00 eastern, the congressional research center, a nonpartisan agency that provides

policy and legal analysis to members of congress on a range of issues, will analyze the accuracy and relevance of reports and the improvement of public access. it is hosted by the sunlight foundation. the u.s. senate is back today. there will swear in dean heller to fill in the seat of retiring and john ensign. live coverage when they gavel in. coming up at 7:00 this evening, fcc chairman julius genachowski and former chair newton minow on the future of telecommunications. that is at 7:00 p.m. eastern. the release of president obama's

this is that it has not stopped the case challenging the president's citizenship status. the ninth circuit court in pasadena heard oral argument last week. lower court dismissed the case ruling, and that record is not a proper pace -- and that the court is not the proper place to challenge the president postelection -- the president's election. >> i am an attorney with the united states justice foundation, here to represent mr. drake and mr. robertson, and those clients of hundred it is the purpose of our appeal, one of two for a hearing today, to see a demand -- seek a remand so that we can separately pursue a resolution of this issue so that we can have the case heard on

the merits and not dealt with on the various technical issues that and raise or on issues that relate the two plaintiffs not my own. i will only be dealing with parts of the ruling by judge carter that deal with my clients. there is a variety of other issues that i have no stake in. >> could you make it clear right at the outset what relief you are seeking? >> yes, we're seeking to remand back to the trial court -- >> of the middle east? > -- ultimate relief. >> a determination as to whether mr. obama is eligible to serve as president of the united states. >> what remedy flows from that that you are seeking? >> simply a declaration that that is so, if we were to present the evidence the court to prevent -- prove that --

>> what would you expect or what are you asking the federal district court to do, assuming it were to issue and that declaration? what would be the next thing that what happened? >> the next thing that what happened would be, if the federal court system -- because this involves the supreme court, what -- >> well, let's just talk about where we are -- >> if we want to procedures and had a trial on the merits, and found that mr. obama was ineligible to serve in office, it is our expectation that the of this would ultimately not -- necessarily by the court -- the office would be taken and mr. biden would take over as president of the united states. >> your clients are former candidates, is that who they are?

>> mr. drake, pastor drake, was the best potential candidate of the american independent party -- and vice presidential candidate of the american independent party. the other client, markham robinson, was at the time the chair of the american independent party in california. both individuals, mr. robinson on behalf of his party, and mr. drake as a candidate -- >> the case was filed after the election was over. >> i am aware fat. -- aware of that. >> why is it different from any other -- >> first, i cannot speak to why it was filed after the election -- >> i am not saying why. the election is over. what distinguishes them from anybody else? >> first thing --

>> they are not asking the election to be rerun. >> we are not asking that the election be rerun, we're not asking that the government is shut down -- >> you are not saying you want this because you are planning to run next time. >> it is premature to even speculate whether mr. drake will run next time -- >> so why are you different from anybody else? >> first of all, there is a ruling that they can challenge it from federal court. no. 2 -- >> i'm sorry? >> hollander case -- >> they brought the case when there was no action pending? >> yes, your honor, but there was no -- the point is that this could come up again. we could have in 2012 the issue

of mr. obama, who has declared for reelection, and filed with the federal election commission, running for president, and we still have the same issue. >> you would be e-- the other half of it is incapable of review. it is likely to repeat "incapable of review." that would not be incapable of review bid somebody with a standing in the course of the election could presumably raise the issue if they wanted it to. nothing has been done so far here. all you have done is filed a complaint, and the district court has challenged standing to it that is all we are here on today. running in all through is not -- running if it all through is not -- does not seem to be a consideration. the question is understanding. you cannot argue that it is incapable of review. that is the only point i'm

trying to address. >> but i have other grounds of requesting remand by this court, your honor. >> all right. >> your honor, i entered this case on september 8, 2009, 40 days after the government filed a motion to dismiss. in the short amount of time i had to prepare, we filed a motion for a proposed second amended complaint. it is our request that we go back on those issues rather than the other issues. the issue that was foremost, or one of them in issues, foremost in judge carter's mind was the issue of this being a political question. >> isn't standing logically prior? >> i can deal with that first --

>> if you don't have standing, you don't have standing. >> standing involves several issues, which i will discuss here. the department of justice argued -- >> the first question is what is your injury. that is what i need to now. -- to know. >> my clients, mr. robinson, then a share of the american independent party, and mr. drake, a vice presidential candidate, were not given a level playing field so that they could run against a candidate who is eligible -- >> they did not file until the election was completely over and the results were certified and president obama was sworn in. what does it have to do with the election? >> again, your honor, i will have to defer to dr. tate on that. i was brought in for a variety of reasons much later in the

process. i came in at the request of mr. drake and mr. robinson, and we won his appeal on argument before judge carter. >> i don't see why you have standing. i still to see why you have standing -- i still don't see why you have standing. >> as judge carter pointed out in his ruling, your honor, the ruling that the department of justice have a great ramifications. i will present the vice presidential candidate and the chairman of a minor party, and judge carter talked at length in his ruling, and i argued, about how to release such as this -- how or ruling out such as this, for whatever reason, a minor party cannot challenge because they are a minor party, and the ability of a major party to put forward a candidate that is not eligible can in fact deprive the

minor party of all relevance at this. -- all relevant status. >> judge carter was sympathetic to that but still has the concern the judges raising, that that is not the posture of this case. there is a campaign where the minor parties feel they are being unfairly disadvantaged for any number of reasons, have in the past, and there's no reason they could not in the future, raise the challenge you are trying to make. you say you were brought in late and have to deal with the hand you're dealt. we have to deal with the hand that exists, and you did not file a claim at a time when at the kind of relief that you would be talking about might be plausible. anything fort do your candidate now. we don't know whether they would

run again in 2012, and if they do, and they concerns expressed now, there is nothing to prevent them from filing a lawsuit at that time when the the circumstances would be amenable to some kind of evidence as to injury, and we wouldn't have to speculate. that is what i am having trouble with. >> i am objecting to the moody case, which was submitted from north dakota. the state supreme court noted that after the election, after inauguration, after the governor of north dakota had taken office and was acting as a governor signed legislation, etc., the state supreme court removed him from office because he did not qualify -- did not satisfy, i should say -- the residency requirements of the state of

north dakota. that is the most analogous situation i could come up with -- >> the result of that would be vice-president biden becoming president and you are still where you were before -- >> no, your honor -- >> there is no more level playing field than they had before, because this is in about an election. >> this, to me, is about the constitution -- >> what you are really saying is that anybody ought to be able to bring this case, and unfortunately, that is not the law. what i am trying to see is how you are different from anybody else. just some walking down the street does not have standing -- just somebody walking down the street does not have standing. >> i disagree with you, your honor. the people of the united states have a fundamental right -- >> that mate the. -- that may be. >> we have had cases on this issue. you are talking about cases with

the standing to object to tax levies and the like, and i understand, but we have a situation that is unprecedented in laws could we have a man who, whether it is true or not, arguably is not a citizen, a natural born citizen, of the united states and is not eligible to serve. if we say, "the election is over," we say that the people of the united states, by a general vote, plurality or majority, can amend the constitution without pulling the requirements to do so -- without fulfilling the requirements to do so. >> that is not quite true, and this gets into the political question pit is not that people don't have a way to enforce the constitution -- i don't recall what the north dakota constitution provided, but i understand the argument being made is that the constitution addresses the issue. it has various stages at which the kind of challenge you are

making could have been raised or could be raised -- at the electoral college, at that point, at -- under the 25th or 26, amendment. the question is, what is the role of the federal courts, because that is why i asked you, just to be clear, why i asked you at the beginning what your ultimate relief is, because what you want to do is take an action through the federal courts to remove a sitting president, and the constitution has provisions that address how a sitting president can be removed from office. that is the difficulty, as federal judges have limited jurisdiction, we have to abide by. >> first, if mr. obama is not a natural born citizen, then he never was elected president, because he could not qualify to

be president. therefore -- >> that is an issue that would be dealt with or identified by the congress or, arguably, the attorney general. >> once you have a sitting president, you cannot in beecham, number one. no. 2, it was the argument in the department of justice that judge carter seemed to rely on that it was up to the electoral college or congress to deal with this issue. the problem with that is that number one, 26 states and the district of columbia have laws that mandate civil or criminal penalties for electors that the vote in accordance with the plurality of voters and the state or district. they have no discretion to challenge. the doj argued that it provides for challenges to congress for the paperwork, whether they

were properly selected, with the paperwork was properly submitted by the courts -- whether the paper work was properly submitted by the courts. there is no provision for anybody dealing with the electoral college. the only recourse for the people as the courts. otherwise, article two, requirements for the president, are unenforcable and therefore meaningless. that is the result that, to me, shakes the concept of the republican form of government. the people have to have always challenges, one of the powers that be, democrats and republicans, don't care about the libertarians with the natural law barred or whoever it is -- the natural law party or whoever it is. maybe next time it will be a republican who is not eligible.

john mccain was a subject of hearings. they had hearings and with john mccain was a natural born citizen and eligible to -- they had hearings on whether john mccain was a natural born citizen and eligible to run. this ahas all been done in the last couple of years, but nobody is willing to take on mr. obama, nobody is willing to ask questions of him. john mccain is ok, not mr. obama. >> how did the mccain hearings come about? >> people in the democratic party in a heated hearings, a majority party in the senate held hearings -- -- people in the democratic party held hearings, a majority party in the senate held hearings. ted olson and others filed

briefs and it was found that he was a natural but a citizen and eligible rto run. >> the question is -- that i have, then, is have you saw to initiate the kind of process? >> through congress? we don't have the right to do that. only members of congress have the right to do that. >> you don't have the right to petition them? >> we can petition them, but only members of congress -- >> nobody pressed them to do that? >> i don't know, your honor. the ruling by congress was, in essence -- it did not have the weight of any law. i would like to reserve my time for rebuttal, if i may. thank you, your honours.

[unintelligible] >> start the clock again. each side gets 10 minutes. >> no, 20. >> 10 minutes. we have two lawyers. each gets 10 minutes. >> each gets ten mnutes. >> 20 to push a button? i'm sorry. >> it's right below you there. you have it on your podium haven't you? >> one, two, three, go.

>> i am representing ambassador alan keyes who actually has unique spending because he ran against mr. obama twice for the senate in 2004 there were two finalists and i indeed mr. obama as the evidence shows committed frau and the evidence that we have shows doesn't have a valid social security number he's using a number that was never signed and it doesn't have the original birth certificate he was provied to te public and i believe greatly influenced the country as a whole and somehow influenced air the court in the future proceedings publishing this computer image

is of original birth certificate issued in 1961 and issues that it's not, it isn't it true image of the of original birth certificate. it's a very invented computer art where pieces were taken from different documents, put together and the damage was created. he created this psychological map. he called us [inaudible] and the start of mass hysteria in the media saying we need to go away, get out of the country and so forth the investor has perfect standing and if fraud was committed and mr. obama doesn't have the proper paper he could never become president or become

the senator from the state of illinois and investor keyes and president obama were the finalists in that competition in 2004. additionally members of u.s. military. most recently a fellow member s in present to afghanistan and was after his birth certificate he sted why should i show but i would be willing to go if i have a legitimat commander-in-chief and he was denied his right to fair trial, the presiding judge said he cannot bring the issue of eligibility. this high ranking officer is sitting in prison in fort leavenworth. he lost his pension so my

clients, some of them are here and are members of u.s. military are greatly concerned that all the evidence shown mr. obama of of being eligible and of him not having heuvel with service documents or social security number, not having a valid birth certificate or theith educational records sitting in the white house and they are questioning in prison in fort leavenworth just as the gentleman sitting there. lastly, as you know, your honor, there a member of issues being heard in different states and among them are the health care reform. the states have balanced budget amendments and the need to know whether ineed when they are trying to implement different measures or executive order coming from the white house they want to know they are legitimate

when they ar implementing those orders in their states'. additionally this case is different from all together caseand as a matter of fact doesn't even tell why because i try this case on inauguration day and before mr. obama did anything as u.s. president he never filed an answer and we had a an equal earing on july 13th 2009. now if mr. obama were to fie an answer and state will there's a problem with those plaintiffs we would have been arguing spending, however in spite of the fact that he was there for a time during the hearing i had on the issue of default, mr. obama

couldn't be the u.s. attorney on his behalf because then it would have shown he served. so he served assistant u.s. attorney and it was a trait that said well he's here but he's not representing the president, he's representing the united states of america and pressured the judge and me [inaudible] threw him and they refused to do it and judge carter stated on the record well, if you refuse and going to dismiss and it's going to be sitting in the ninth circuit for a year and to allow it to the country to have this case heard on the merit. we are losing due process. you can either give me the judgment or denying. do not pressure me and meet me

serve, mr. obama, for the fifth time for the u.s. attorney's office. and the hearing last i think over two hours and repeatedly pressuring me and he had the new ocess and violation right for [inaudible] because i was pressured again and this particular instance was an instance of the court exceeding the judicial discretion to read additionally, there was no spending to be there to begin with. he wasn't her% and the plaintiff, he wasn't representing the defendant so he had no standing to argue anything for the case to begin with and there was a judicial discretion and judge parker to

go and demand u.s. attorney's whatever part of the case. additionally, as that was done, judge carter made a deal and stated if you surf the government -- i stood correctly for the role of ease, and the u.s. attorney provided the reconstruction of the statute. he stated that i had [inaudible] the government officials being served in regards to something in their duty. i was serving he committed before he became the president. it wasn't done as part of his

duty. it was done for his own benefit. so, and also stating that the reconstruction of the statute there was an era when judge carter that needs to be overturned, the decision needs to be overturned. and the influence of federal judge by the u.s. attorney's office or actually by the white house using the u.s. attorney's office and additionally using his own private attorneys pleased to work as a clerk for the presiding judge. it was an pariality for the attorneys so this judge rating in opinion for the judge. i would expect this in the soviet union during wouldn't expectant here.

additionally, judge carper wrote the letter that came to enter his chambers and in his final rulings he called for the plaintiff's attorney for the consideration and to have access to those letters and have a hearing to provide my part of e story. my livelihood was affected, my provisions of the state bar were affected because the judge included in his order letters sent to him directly to his chamber and had no opportunity to respond to read this of the discussion and for all of those reasons, and i'm running out of time, this has to be the decision has to be overturned and i should get my right for the judgment and the discovery of the documents [inaudible]

more information. >> thank you very much. >> may i please the court? the appearance of my counsel assistant u.s. attorney and of myself representing president obama and the other federal defendant. this is a limit to the matter before the courts -- >> where are you from? the u.s. attorney's office. in los angeles, yes. it is a limit to the matter before the courts and unless the court directs otherwise i wouldn't respond outside of the purview that there was no undue

influence addressed to anyone and the court is standing and as this is already suggested by the question the difficulty of course is that theseplaintiffs didn't have standing at the time, and not prior standing in the meantime to read the problem is the need to show and this court knows the utter stability, and the dover of those elements standing in the district court alone found canbe shwn. >> is there and nobody that brings this case or a case like it, a case challenging the qualifications that the president before or after the election, not before? >> in the obstruct, i think there are certainly if they acquire in the court limited jurisdiction i would hypothetically think of some

instance of a personwho might be able to bring the case. the first person that comes to mind is as the honor suggested a candidate and has also suggested we don't have any candidate in this case. by the time this case was brought, but the election had been run, the president certified as the president-elect and the president had been inaugurated and that is when the case was filed. not here. the time for a challenging somebody on the ballot have launched. >> and first ofll, i gather that if we accept your standing arguments we don't get to political question. >> i think that is the correct timing, your honor, yes. >> and if a case like this were brought before the election would there be a political question problem? >> there could be. i don't believe a case has been

-- >> not sitting president, if you have a challenge to a candidate i assume there wouldn't be a political question at that point. >> somebody running for office declares 23-years-old or what the president has to be 35 commesso 33-years-old nobody disputes that but nobody acts. would you say somebody would have standing to challenge that? >> depends on the tming. during the campaign i think that a candidate would have standing -- >> and it wouldn't be a political questi. >> ready date cadidate can challenge the qualification of another candidate assuming of course that that candidate does so in a timely manner that there is enough time and has the case like that and the court can act promptly and swiftly when it is

necessary assuming that is the employer to the election in the enough time the court [inaudible] with the other candidates try this court. >> not like the chicago mayor's race when the residency f. rahm emanuel was much in dispute so there would be the kind of timing that a candidate could challenge the qualifications of the opponent's? >> that's correct. a series of cases in challenging quifications of the candidates during the course of the election and i would submit others kantrowitz about what and other qualifications that of course didn't happen here and to the other point about vv dress

ability, the effect that they would have visit the district court were to ever get that far to the revisory and to say if the district court doesn't have the power once the president has been declared the winner -- semidey would be nice and difficult question but not decided before the election. estimate and of course the timing as much the longer the you go back in time the crew to the likelihood of the standing might be. >> so there might be is a region which you wouldn't have a decision on the eligibility until after the election and the would be a sort of hard and fficult question but it's not -- >> that's correct on both issues, your honor. it's possible to think for a difficult issues and number two, that is certainly not the issue before the court.

>> the limited's jurisdiction curtis -- the plaintiffs have standing and of course they came in this case and charlatan standing in the district court found lack of injury in fact and the dress of devotee. amid the determination was a political question of termination and doesn't seem necessary. >> i think the court could have reached the issue in fact quite frankly didn't the opinion below never reaches the conclusion that there were candidates involved. is simply stops the analysis and says that according para freezing from the district court opinion that the only one with any potential standing with the political candidates to sort of

stop that. i think another step in the logical process would have been to say but of course thes were not political candidates of the time the complaint was brought. the court later time is that the end and then goes on to talk about redress of devtee as a means of establishing what i think it's fair to say even if the court over the fact that there is still no redress ability. >> if we did need to get near the political question, i was a little concerned about you ried to point to the context will of commitments in the constitution to other branches, but there are a little vague are they not and what provisions of the constitution do you think are permitting the eligibility determinations of an officer of a candidate or an officer?

a natural official to congress coming electoral college or someone else? >> right. will it n't that a general, your honor. it's the sitting president. and it's worth noting because the commitment to the house is that a body as though sold under the constitution to impeach. >> wouldn't it the high crime misdemeanor? we are in the era of no case law but i do know that if the constitution says the the only body that can be moved the sitting president is the congress in both houses -- >> where does it say that? >> you did accurately see impeachment, the house says that

the house has the sole responsibility to impeach, the scent believe kucinich has the sole responsibility to convict, antonakes in case the united states supreme court has cautioned the courts to allow thimpeachment proceedings as a quintessential nonjudicial elephant in a way because of this with the senate has the responsibility to do. >> if someone discovers the candidate for president is under age or not a citizen and they discover three days before the election and they don't get to file the suit because there's no

time. if it filed in had known earlier , then the judicial branch would be the arbiters of the qualification and defining what it means to be a natural born or how you measure the age or whatever. is that correct? >> ion't want to speculate, your honor, but i do acknowledge that courts to know how to act quickly and even three days before the election -- >> dalia understand that they might have been able. i'm just saying assuming they couldn't so the fact of the alleged fact, the disqualification was discovered at a time they were not able to bring it to federal court. if the had earlier, the federal court would have been able to put the operative event becomes

once the president is sworn in and becomes the president-elect, the ability to deal with the situation, the jurisdiction ul and of the costitution shifts to congress and congress not only has the jurisdiction to decide what to do, but also to decide the interpretive issue of what the constitution means by being a natural born or other kind of citizen. that's where the shift occurs from and in the course of deciding whether to impeach or exercising authority under article 25 perhaps or the 25th amendment rather, that interpretive process authority would be in t hands of the congress.

>> i will submit that is very accurate of our understanding of the constitution, your honor. but the opportunities and is the election psp mcginn you're saying they're for -- therefore if the court had -- if they filed as we did hear that after the president was sworn in the court would have no role as a matter of declaratory relief only use it would be in a phrase real opinion. sprigg there woulde no need to enforce because the court would after destruction and the suggestion the declare a prejudgment admitted to the congress i don't think that europe reflects how the system works. there is no means by which the courts would enforce, and at

that point because the election had already passed it then devolves on to congress to establish how to take appropriate action which as we point out in the brief both houses of congress have embraced both as standing committee on eligibility ani will also submit the suggestion about the senate resolution. >> eligibility is -- there's a and amendment that seems to deal directly with the qualification question but there's another worker we ven't talked about which is between the election and the inauguration, and that amendment seems to deal with that. islamic and once again, it supports our view that it devolves responsibility to congress. islamic doesn't say who is on

the qualifications, it says congress can provide the case where neither the president elect or vice president shall qualify but it doesn't say declaring who should act as president but it doesn't say who decides that. >> it doesn't say that. it says if there's a difficulty to decide by law what shall happen if either one shall alifbut it doen't say who decides whether they qualify. >> but congress decides by law. they would pass the mall determining who the correct president was in that even it was determined the president-elect was unfit or ineligible or not qualified. >> these are interesting questions and i don't mean in any way to discourage them, but

i don't will of the answers other than to say that i do know that is not the case before the court. that these individuals were not candidates and these individuals accordingly didn't have standing >> if there is no other question from the support i would submit and i thank the court. >> thank you. >> [inaudible conversations] >> you're out of order right now. we have a gentleman appear ready to speak. he's got two minutes and 41 seconds. you can share a minute or so if you want.

>> i listened with great interest part of the comments is acting as a judicial body making determinations as to who is eligible and who is not whereas in the argument of the court he also talked about the idea of chard to the deciding who is eligible and that is how we get back into the problem of the minor parties. we have the republicans and democrats. we have indendence in congress and they are powerless except in a close vote to make any difference whatsoever. so the courts need to be involved in this and need to take a stand to enforce constitutions. regarding the political question, it is our argument that when eligibility isn't a

judgment and policy decision as is required to the political question. it is a yes or no answer to a question. if someone is eligible to the system or is that person not eligible. so little respect it is't a political question. with regard to the court involvement in the cases such as this it's very limited, but we submitted thecase that went away t the united states supreme court which refused to hear the averment of the california rulings which stated that the secretary of state had the right to move someone from the ballot read by the time this got to be done it was post election nights understand that they formed the right in the state of california in the case -- >> just because the inherent the case doesn't mean anything.

>> [inaudible] >> plenty of work. >> your honor, and the work they do. sitting and thinking while he was making his presentation it occurs to me, and i don't have the experience that you do but if in the constitutional law for 35 years that another reason as lived among other instances premature because we can't reach out to these elections if you reach out to them speak to one of the questions of what the change point is where the key changes and it's that. i would respectfully suggest my time is up and i apologize that, the case resubmitted where there is a discussion of the problem with of the elected bodies making a determination as to who is allowed to run for what in the sense of on going and

political campaigns and i thank your honor for your time. >> thank you very much. >> [inaudible] >> you use your time. >> know why didn't -- [inaudible conversations] >> okay, go ahead. >> just to add -- >> i've got my timekeeper over here. >> [inaudible] >> well, you have 20 minutes to divide between the two of you. >> he didn't speak for 18 minutes. when he started speaking he spoke for ten minutes. anyway, what is important here

is my client investor keyes, was the presidential candidate runng against mr. obama. additionally, we will tell congress and during the hearings in the district court letters from a number of senators specifically i recall the letter from senator sessions stating that the senate cannot decide the issue of fraud whether it was committed for the forces to decide and specifically stated that they want to abstain because they are not a court of law. they can hold these issues and -- >> when did you submit those? is it after the eleion or before? >> well, before -- >> when were dosimeters the firming to the court? was it before or ter the

election? .. members of the military went through article 138, specific article of grievances, and you have it with my pleadings, a letter from the chairman of the joint chiefs of staff of the u.s. military, legal counsel from admiral mullen saying, "we appreciate this is an important issue, but because mr. obama, commander in chief, is not considered to be technically a part of the military, a civilian overseeing the military," there is nothing and they can do. each and every avenue. we exhausted each and every avenue, reaching chairman, we

went to congress, we went to senate, and after it's the courts to decide. the senate cannot value as evidence. we cannot say if the birth certificate or valid or forgery. that's up to the judge to decide. that's why i'm asking to over turn this decision and give me an opportunity to try to escape on merit and obtain proper evidence. and then submit is to congress. >> listen, we have or argument well in hand. okay. >> thank you. >> thank you very much. >> and we will now adjourn until tomorrow morning at 9:00. thank you for your testimony. >> all rise. [inaudible conversations]

[inaudible conversations]ñññ >> here is what we have a for you coming up live on at the c- span networks. at 2:00 eastern, the state of the congressional research service, a nonpartisan agency that provides policy and legal analysis to members of congress on a range of issues. it will examine the expertise of the analysts and the relevancy of its reports and the prospects for improving public access to non confidential publications. it is hosted by the solid foundation, and coverage will get underway at 2:00 eastern this afternoon. the u.s. senate is back today, and and they will swear in dean heller, republican of nevada, it

will replace the retiring and john ensign, and also a hearing on at the nomination of james colt as deputy attorney general. live coverage on the c-span2. tonight at 7:00 eastern, fcc chairman julius genachowski and a former fcc share on the future of telecommunications, live on c-span at 7:00 eastern. >> for me, when sony says, "we are protecting consumers," the consumer might want to know, "i, too, have a right to protect myself." >> california rep mary bono mack on the theft of personal data from the playstation network, tonight on "the communicators," on c-span2.

>> you can access our programming any time on the c- span radio iphone app. listen to our signature interview programs all week, and it is available wherever you are. download it free from the app store. >> homeland security secretary janet napolitano said last week that we should be vigilant after the killing of osama bin laden, but that we do not have any specific or credible intelligence on immediate danger. she made these comments at dataset homeland security and governmental affairs a hearing -- at a senate, and security and governmental affairs hearing. independent connecticut senator joseph lieberman chaired this hearing. it is just over two hours.

>> the hearing will come to order. this is the third in a series of hearings we are doing on board security, focusing of necessity on our southern border. but just as history changed on 9/11/01 and much more positively, history at a turning point on sunday with the killing of osama bin laden, it would be remiss not to say a word of thank you to you, madam

secretary, for all the people who work with you in the department of homeland security, and by extension, to all the people in the security sector of our government, military intelligence, who performed so brilliantly and bravely and together to bring about the extraordinary result that was achieved on sunday in pakistan. that was sok pervasive in the successful assault on that compound in pakistan is precisely what this committee hoped for when we worked so hard 1st to reestablish the department of homeland security in 2002, after 9/11, and then to introduce and

bring forth legislation that created the 9/11 commission, and then to consider in two phases and advance through the committee and ultimately to enact the recommendations of the 9/11 commission, reforming the intelligence community. i think all of us we're grateful and proud of the work that was done. since this is the first opportunity that i have had to see you in public, i wanted to thank you and ask you to thank all those who have worked with you. i hope you will say a few words about that in your opening statement. also, as good as we feel about what happened on a sunday in pakistan and as much as we know that it makes us safer and the world safer, we also know that the war against islamist terrorism is not over.

the enemy is still out there and will continue to try to attack us here at home. and to the extent that you're able in your testimony, in the opening statement or questions, we would like to ask you a bit about the post-bin laden sense of homeland security. that may come back to the topic of the day briefly, the security of our borders in all of its manifestations is very important. the truth is that one of the great achievements since 9/11 is the extent to which we have secured our borders against those who would come in to do us harm. the focus of these hearings, of course, has been on a different kind of border security, which is border security related to illegal immigration, but also a concern about the drug cartel violence in mexico and the

extent to which it may come over the border, our border, into the united states. in this regard, too, i want to thank you for all you have done. i think you have faced a really significant challenges, both in terms of all kinds of border security and of course natural disasters. you have handled your job with real strength and effectiveness and common sense, and i appreciated. witnesses at the two previous hearings on the topic of border security, particularly southern border, largely agree that the situation along that border has improved significantly over the past decade. the best statistics available bear this out. the one that seems to be most commonly used his apprehensions of illegal aliens along the border are down 73% since 2000, which is the lowest level in three decades.

that is, of course, good news. we spent a fair amount of time in the previous hearings on the metrics, on the statistics. and we know that they are just a piece of the picture and can be misleading. at different times, for example, border control has cited increases as apprehensions as proof of progress, and sometimes decreases in apprehensions in the theory that people -- the fewer people that try to get over to the u.s., the fewer the apprehensions. we're trying our best to figure out how many people actually are attempting to come over the border and compare that to the number of those who succeed. i understand the the border patrol has been trying to collect this information through footprints, video footage, and sensors, but its methods are not 100% to the challenge, and it is a difficult

challenge, because we're trying to measure people who we have not apprehended. i hope that you'll be able to find ways to improve the collection of this information and consider making it public so we can more accurately assess the extent of the problem and our progress on it. second point that has come out of these hearings that has struck me is that the focus on the southern border has often overshadowed other vulnerabilities that continue elsewhere in our immigration enforcement system. one statistic, which reveals such a vulnerability, that i would guess it will be and is a very surprising to most americans, is that about 40% of the illegal immigrants in our country, undocumented aliens, people living and working in the united states to date illegally,

came into this country legally. and then overstay the terms of their visas. in terms of the problem of illegal immigration, about 40% of the problem is not people who have come over the border and into our country illegally, but people who have come in legally and stayed over. and this both undercuts the of legitimacy of the law that we have about a temporary visas, for instance, but it also threatens our security. the most illustrative number to me still is the 9/11 commission, which reminded us that it is the fight of the terrorist attack is on 9/11 and entered the u.s. illegal and intentionally overstay their visas. in 2009, one man was arrested in dallas on suspicion of planning

terrorist attacks and there was in the u.s. originally on a student visa and overstay. any g-80 report which just came out concludes that of the roughly four hundred people who have been convicted of any terrorism-related crimes since september 11, 36% had overstayed their visas. almost 10% of the people had been convicted of terrorism related activities and the decade since 9/11 were legal immigrants who overstayed their visas and became illegal. visas and became illegal -- were illegal immigrants -- were legal immigrants that overstayed their visas and became illegal. the reality is the d.h.s. program that is supposed to identify vises overstayed

remains a troubled and ineffective program. officials of your department have told the committee that the u.s. process is of less than half of all potential overstays. g.a.o. found that the program has an overall backlog of 1.6 million potential overstays that have not yet been processed. part of that is you have not been given the support to do that, but it is a real problem. it is a crucial component of securing our borders and making our immigration system incredible and real to the law. to me, it is not acceptable that we are still unable to systematically identify people who overstay, so i hope you'll be able to talk about that and what the department is doing about it. one final point -- i hope we

will be able to discuss this -- as we began a series of hearings on border security, i have set a goal of dealing with the current state of border security. how are we doing? are we keeping our borders secure? it has also become clear again to me -- let me finish that thought -- it is my hope that if we reach the level of finding out what is not working on the border security and fix it, we will not only achieve that good results, but it would be a preface to going back and considering reform of our immigration laws, which just about everybody here in congress agrees need to be fixed.

the perception was border security could lead not only to better border security, but to building a political consensus to deal with the continuing problem of illegal immigration. it seems to me after listening to the testimony that the and inverses also true -- is also true. smart reform could also enhance border security -- it can significantly reduce the flow of illegal immigrants into america to the -- into america. i welcome your thoughts on that connection. thank you for being here. i look forward to your testimony. i am pleased to call on are ranking member, senator collins.

>> thank you, mr. chairman. let me join you in welcoming the secretary back to our committee today. with the welcome news that osama bin laden has been killed, i want to join the chairman in thanking everyone involved, particularly those brave navy seals do so flawlessly executed the mission and the many other members of our military, intelligence, and homeland security forces whose names we may never know. this was, as the chairman has pointed out, exactly the kind of collaboration of our intelligence and operational capability that we envisioned when we reform our intelligence community in the wake of the

attacks of 9/11. this successful operation demonstrates once again the importance of sharing intelligence information across the agency silos, the very opposite of the disjointed, pre- 9/11 experience. i appreciate that the department immediately issued a situational awareness alert to state and local haleh security and law enforcement officials on midnight sunday, sharing intelligence information, and including a call for tightened diligence. the system did not even exist prior to the attacks on our country. today's hearing, as the chairman has pointed out, is the continuation of this committee's focus on the

challenges facing us on the border security. border security is critical not only to prevent individuals from entering the united states illegally for whatever reason, but also to stop at the border and these issuing points, or on inbound u.s. flights, those who are determined to hurt us. and despite the killing of osama bin laden, we must never forget that the battle against islamic extremists is still very much on. the first two hearings in this most recent series emphasized the challenges along the southwest border while earlier the committee was focusing on the northern border. when we consider the southwest region, we should pause to honor and remember the sacrifices of

the border patrol agent who was murdered last december and the agent who was killed by members of the drug cartels in february. these fallen heroes and the terrific news reports of continuing to stream out of mexico rebuilt the brutality of these cartels. recently, nearly 300 bodies were discovered in mass graves just some 90 miles from brownsville, texas. just last month, fbi director robert mahler said, "cartels' transfer kilos of cocaine and marijuana, and gangs kidnap and murder innocent civilians, traffickers smuggle human

cargo, and corrupt public officials lined their pockets by looking the other way." director mahler concluded that taken together these issues constitute a threat not only to the safety of border communities, but to the security of our entire country. this backdrop explains why many of us were perplexed to hear the secretary say in late march that security of the southern u.s. borders is very -- is better now than it has ever been and that violence from neighboring mexico has not aged north -- edged north. the union representing border control agents has countered that crime is indeed spilling over from mexico. they point to the murder of three border patrol agents by the cartel's in the last three

years, the ranchers and other citizens who had been gunned down in border communities, and the phoenix area, which has risen to become a cartel related crime hot spot. the council concluded, "the u.s.-mexico border is unsafe and to say anything else is not true." data one secretary's apprehensions' on the border or certainly useful, there are contributing factors that should not be ignored as we scrutinize the numbers of declining interdiction. for instance, or some of the declining numbers simply reflecting a slow economy -- fewer people tried to cross over into this country?

is the persistent cartel pilots deterring others from crossing? to put it bluntly, individuals will not be arrested at the border or north of its if they are too frightened to run a gauntlet of terror that may end in a mass grave. these and other factors should be considered as we evaluate the effectiveness of the administration's policies in addressing what is a very difficult issue. while the southwest border is much more likely to make the evening news, we must not forget the northern border. the chairman has pointed that out. it has been made on numerous occasions. according to a report released by the gao, the border patrol was aware of all illegal border crossings on only about 25% of

the 4,000 mile northern border. the border patrol was able to make an immediate rest -- arrest on a portion of the border. the gao has observed that the terrorist threat on the northern border is higher than the southern border given the large expanse of area with limited law-enforcement coverage. that is why i believe that the administration's proposals have limited -- proposals are ill advised. i am glad they had been repeatedly rejected by congress. this program should be used to help secure both the northern and the southern borders. it helps find joint operations between the border control and state and local law enforcement that act as a multiplier in the

areas that are likely to be left uncovered. to cite just one example, stone garden was instrumental in the arrest of eight smuggling operation. a police officer, a criminal attempting to smuggle $137,000 across the border. he was patrolling outside of his regular community. this individual would not have been caught by operation stone garden funding. we are not limited to the borders of themselves. the chairman has mentioned a gao report that is of tremendous

concern for me that indicates that ice is only advocating about 3% of its resources to target individuals who are here illegally because they have overstayed their visas. they came legally in the first place, but now they are here illegally. it is an enormous number. it is more than one-third. it is between 33% and 40% of the number of people here illegally. another report by g l which examines the visa security -- by the gao which examines the visa security program -- the u.s. only has offices at 19 of the 57

high risk posts. the gao further found ongoing turf battles between ice and at the state department, which are simply unacceptable when it comes to dealing with the terrorist threat. i look forward to discussing these issues with the secretary today and i thank you for her appearance. >> secretary, napolitano -- secretary napolitano, thank you for being here. >> thank you, chairman lieberman for the opportunity to testify today. i have a more complete statement that i asked to be included in the record. >> without objection. >> i would like to begin with discussing a topic that is on everyone's mind before moving to the principal topic of the hearing. the operation to get osama bin

laden was an extraordinary success not only for the united states, but for the entire world. i want to join you in commending the men and women of the intelligence committee, the armed forces, and are professionals who played an important role in bringing bin laden to justice. this does not and our counter- terrorism efforts. we must remain vigilant regarding dress up to the united states voiced by al qaeda affiliates or al qaeda-like affiliate's as well as the threats posed by homegrown, violent extremists. our security posture, which always includes a number of measures both seen and unseen, will continue to protect the american people from the evolving threats we face. we have taken a number of actions specifically in response to sunday's events.

these include issuing advisories to law-enforcement entities. we have been reviewing all open cases of potential al qaeda operatives possibly in the united states in conjunction with the fbi. we are identifying any new trading rules of the should be instituted based on incoming intelligence. we are continuing to strengthen our recurrent studies for a visa, asylum, and other benefit applicants and recipients in cooperation with the intelligence community. we are putting officers at our airports. we are providing additional

information to all air carriers. as you know, we have recently substituted for the old color code, which was commonly viewed as obsolete -- a new system known as the national terrorism advisory system to more effectively communicate information about terrorist threats. right now, we do not have any specific or credible intelligence that would lead us to issue an alert under this new system. realizing that under the new system the baseline is already elevated. in other words, the baseline assams a continuing and evolving terrorist threat -- a sense a continuing and evolving terrorist threat against the -- assumes an ongoing and continuing terrorist threat against the united states. we will issue an alert if we

get intelligence that wants it under the new advisory system. to move on to the main topic up- to-date's hearing, i am glad to have an opportunity to speak about the southwest border. i gather i will now be speaking also about the northern border. unprecedented resources have been dedicated over the past 2.5 years and that has resulted in significant progress being made. i also want to discuss the metrics used to gauge the success. the administration has dedicated a historic level of resources to securing the southwest border in terms of manpower and in terms of infrastructure. we have increased the size of the border patrol to more than twice the size it was in 2004. i now have a quarter of all the

personnel in the southwest border region -- more than ever. we did all but 3 miles of the pants and called for by congress. for the first time, unmanned aerial aircraft's capability covered the entire southwest border from california to texas providing aerial surveillance to personnel on the ground. they are being supplemented by critical security improvements at the northern border including additional agents, technology, and infrastructure as well as strong, serious, and strategic enforcement of immigration laws in the interior of the united states. as someone who has lived most of her life in border states and has worked with public officials are dealing with water-related

issues since 1993, i can say from personal experience that the steps that have been taken constitute the most comprehensive and dedicated effort to strengthen border security that we have ever deployed. of the past two years, seizures of contraband has risen in all categories -- drugs, illegal weapons, illegal cash. illegal immigration attempts, as measured by apprehension of illegal aliens, has decreased by 36% in two years. they are less than one-third what they were at their peak. fbi crime statistics demonstrate that the crime rates in border communities have their work -- have remained steady or drop in recent years, continuing a decade-long trend. i am not the only one, senator collins, who has stated that the border is safer now than it ever

has been. the border city mayors themselves have said that and are concerned that the misperception on this side of the border is interfering with their ability to attract jobs and economic development to their own regions. i must also say, i am perplexed why the union which represents some of our border patrol agents do not report the success that the border patrol has achieved over the past 2.5 years. i can only say that -- like i say, i am perplex. i will not go into that any further. the significant improvements would not have been possible without the bipartisan support of this congress, particularly, -- particularly the money passed

last summer. i thank you for your continued support. nonetheless, we still face challenges. this is not a victory lap. we must continue to build upon the progress we have made. we remain deeply concerned about the drug cartel violence taking place in mexico. we know these organizations are seeking to undermine the rule of law, especially in northern mexico, and we must guard against any spillover effects in the united states. well our efforts have led to progress in every significant metric we currently have, we must focus on new ways to comprehensively measure results along the border. ultimately the success of our efforts must be measured in terms of overall security and quality of life along the entire border region. i had directed u.s. customs and border protection to develop a new index to comprehensively

measured security along the southwest border and the quality of life in the region. as part of this process, we are convening independent, third party representatives to evaluate any such index. in developing these border metrics, it is important to keep in mind our ultimate goal, which is to make border security more secure and provide a basis for economic prosperity. that is like a new border security index will not only take into account traditional measures such as apprehensions and contraband seizures, but we will also incorporate indicators of the act of illegal cross- border activity on the quality of life in the border regions. these include factors like traffic agents -- traffic

accidents involving illegal immigrants, and passed on property values and other measures of economic activity that can be impacted by illegal immigration. because defining success at the border is critical to how we move forward, our definition of success must meet several guidelines. it must be based on reliable numbers. it must tell the complete, transparent story. it must include the priorities of the border committees themselves. i look forward to working with this committee on this important issue. there are a number of other things i can't say -- i can say in response to the numbers of the gao submitted.

suffice it to say, however, that many of those g l statistics -- g.a.o. statistics are not complete with respect to the efforts that have been undertaken. i will adjust that a little bit in the "q&a". thank you again for the opportunity to testify. thank you again for the opportunity to present the case before the security -- to present the case for border security in the united states. >> i appreciate the comments you made about the state of readiness of the department post bin laden's death. a few quick questions i hope will illustrate the seamless of our counter-terrorism efforts. i presume that, for instance, we know that the navy seals took an

enormous amount of data from the compound in pakistan. i assume that as this material is gone over, anything related to haleh security will be shared immediately with your department. -- homeland security will be shared immediately with your department. >> it is being shared. quite good. a lot to highlight what i believe i heard you say. although you have not raised the national threat advisory system alert -- you are right. it is important to put out that 1 cents these changes put into the system last week have us always at a state of alert. the judgment you make in changing that would -- would be to raise that to an elevated state of alert and then to end

and in that state of alert. >> we have a counter-terrorism advisory board comprised of all the members of the intelligence community to are constantly reviewing intelligence coming in as it relates to the homeland. they analyze it for whether a threat is either elevated or is so specific and credible that it actually reveals an eminent threat. at that point, an advisory would be issued. we would tell people as many facts as we can. it tells them what they can do to protect themselves or their families. it tells them what they can do to help us with regard to the threat. for example, we may be looking for certain types of vehicles or other things. it tells them where they can go to get continuously updated information.

rather than the colors, which did not communicate any information. this is designed to communicate information. >> if you do not have specific or credible evidence and have not read -- have not elevated, does not mean the department has not taken additional steps cents bin laden was killed. you indicated that there was increased security at the airports. i do not know if you mentioned at seaports, but i would imagine that is included. is that correct? >> that is correct. we have also, at airports in particular, we have taken additional efforts at our borders. as i mentioned, we are also going back and reviewing all of the pre-existing intelligence with respect to open files

against the united states. >> i appreciate that. we are reassured to know that some of the materials that were seized at bin laden's compound are already being shared with the department. my impression that bin laden himself continued to be focused on attacks on the united states of america, on our homeland -- it may be that the information gathered by the seals from his compound could hopefully prevent such attacks. let me focus on now on the direct question that we originally were going to handle, which is border security. we are operating in a political context. i mean that in terms of the body politic. we are dealing with how we can form a consensus to both improve the security at our borders -- but as we said, the equation

that people have articulated that our immigration system is broken, but we are never going to have a no support for immigration reform until we can say that our border is secured. i want to deal with that part of it first. the security fence act of 2006 required that the department of haleh security achieve operational control of the border -- department of homeland security achieve operational control of the border. any unlawful entries into the united states -- >> at a recent colloquium, you all agreed that total operational control over our border is effectively an unreachable goal, that we are

never going to be able to fully seal off the border from all illegal activity. if that is correct, and i suspect it is correct, i think we have to ask ourselves, and i am going to ask you now, what is an achievable goal in terms of securing our border? i ask that both because we have a responsibility to secure our border, but also because, hopefully, it will help us decide what level of border security we need to achieve before we can go on to deal with the problem of immigration reform. >> mr. chairman, i think two things. one is that is why we have gone back. operational control is an archaic term. that was testified to by some of the other witnesses you have had in this area. it is a limited term.

it makes for a sound bite, but it does not reflect the reality of what is happening at the border. but the fact of the matter is that we need a more quantitative and qualitative way to reflect what actually is occurring at the border. that is what i have directed someone to prepare. but also, mr. chairman, there is a linkage between immigration reform and the border. they are interrelated. the notion of this kind of sequencing does not reflect the reality that with immigration reform, some of the underlying laws involving visas, temporary workers, those sorts of things -- if you deal with the legal immigration system, that also has an impact on what is in the illegal immigration system. this is a not that we must

untie, looking at all these things together. >> i take it from what you are saying, as an example, we may be able to reduce the flow of illegal immigrants by altering immigration laws. for ss, pervert -- providing for temporary workers visas or raising the temporary cap on visas allow for people coming into the country. >> indeed. an example would be for agricultural worker bees is, but there are many others as well. >> thank you for the announcement you have made this morning. i think it is significant. you have directed customs and at border protection to come up with a new index, a new metric for measuring or security. they will bring in outside

experts to consult with them. i think that will really help to inform the debates and allow us to set some goals that are achievable, and also create a foundation for moving on to the related question of immigration reform. >> thank you, mr. chairman. we are moving as quickly as possible on this. it is a bit of an onion to peel when you actually look at it. one of the things we want to know, for example, how many people have been deterred or prevented from crossing illegally by the measures we are taking? it is very difficult in all areas, but especially here to measure a deterrent number to get the denominator. we have to have other factors we looked at before we can reasonably say and reasonably

extrapolate that we now have a safe and secure border region that also facilitates the flow of legal commerce and trade and tourism. >> thank you, very -- thank you very much. senator collins. >> thank you, mr. chairman. let me start with the border security issue. you made a comment that you were expected to talk about the southwest border, but wanted to talk about the northern border. title of this hearing is securing the borders. our witness letter made very clear we were thinking about the entire border. >> i am ready to do that. >> i do not want you to have a misleading impression. let me just start with the december gao report that looked at a number of issues.

it was in this report that the gao quotes dhs as reporting that the terrorist threat of the northern border is hired giving -- given the broad expanse of area with limited law- enforcement present. the gao also went on to say that dhs reports networks of illicit criminal activity between the two countries. the vast majority of trade and travel between the u.s. and canada obviously is legitimate. we do not want to impede that legitimate travel and trade, but that is one reason i am such a reporter of the operation stone garden. it allows for joint operations that are a multiplier for the federal government as well as

helping state, county, and local law enforcement. i truly do not understand in light of d.h.s. own assessment that the terrorist threat is higher on the northern border and that there is significant criminal activity. why is the administration year after year trying to restrict operation style garden to just the southern border? >> if i might discuss the measures that are ongoing at the northern border that are not captured in the december gao report. the northern border is different from the southwest border in the sense that you have some big urban areas where a lot of traffic goes back and forth and then you have a huge expansion

of farm land as has been testified to. our design for the northern border is different than from the southwest border. our strategy is different as well. it is much more technology dependent. we are adding more systems up there that can detect low flying aircraft. also, our partnership with canada has evolved over the past months so that we have the prime minister and president obama themselves announcing a joint vision for a perimeter involving canada and the united states and greater cooperation with canadian law enforcement on both sides of the border. that is going extraordinarily well. for example, we are looking at being able to integrate their own radar feeds into our system

as well. with respect to stone garden, there are some stone bargain moneys that have been allocated to the northern border. but in terms of looking at where the need is greatest -- i only get so much -- measured by what the local law enforcement is asked to do, the overtime, the maintenance of vehicles, those sorts of things, stone -- i will acknowledge that the priorities have gone to the southwest border and probably will continue to do so. >> i understand the premise that the southwest border is why we have so many more border agents, but this is a program that is

not an expensive program that allows you to do more than you otherwise could. it is d.h.s. own findings that warn about the terrorist threats from the north. in my remaining time, let me switch to a different issue. that is the security program. i've been watching this program for many years. since 2002 when it was first established. the fact is, we are not making much progress. the ice personnel have only been deployed to 19 of the 57 highest risk state department post around the world. this program is an example of one where we can stop people from getting visas in the first place. it is an example of the kind of coordination you have advocated

and it helped advance across department lines and that this committee has always promoted. but, to me, it is very disappointing that the president's budget request is unchanged from last year for this program. are you going to be able to cover more of these high risk post with that budget? >> one of the things we were asked to do is to see if there are current functions that we could continue to perform or even an large if we could figure out another way to do them. the visa security program, as you acknowledge, requires an agreement with the state department. i will acknowledge there have been some issues there. i think we are working our way through them. the other thing i asked i asked

to do is to figure out a way we could do the same double checked service on a visa remotely by using some of the i e-systems we have in place. i believe this year we will be able to do that and expand our visa eyes and ears in that fashion. >> thank you. >> thank you very much, senator collins. the next senator will be senator tester. >> thank you, mr. chairman. it is always good to see you, madam secretary. i also very much appreciate the statement you made earlier today when we were talking about bin laden -- this is not a victory lap, this is about getting a job done and moving forward. it is about some very difficult decisions that were made. you were part of that and you

need to be credited for that and i thank you. the other thing i wanted to talk about real quick -- the ranking member talked about this a lot -- is stone garden. i do not want to dwell on it a lot, but i do want to simply refresh on what you just said. there would be stone garden grants available to the northern border? >> there is still money available, senator, but they are not in the same amount. >> i understand that. when we are talking about stone garden and limited amounts of money, where you able to take into account as the director, as the head honcho, the potential money that the stone garden money could save to expand that program? are you able to do that within

your budget? >> if yes. that is an analysis we are using for all of our funding. i would say, senator, that one of the things we've been doing over the past weeks is looking at the budget agreement for 2011 which cut a lot of the grant funding that we had for anti- terrorism and looking at how we prioritize. how do we make sure money is going to where it can be best used to eliminate risk? we will do the same for stone garden. >> would it be fair to say, or at least can i get your reassurance -- when 2012 comes around, there will be dollars to be able to develop partnerships with local law enforcement agencies of the northern border. >> it is fair to say that there will be dollars available, but the whole universe of grants if

you add them up is less than last year. >> yes. we may not be able to help with that. i was pleased that d.h.s. announced a round of grants in a demonstration program. it is important for people to communicate. as we move forward, is d.h.s. looking to expand upon their program? >> we have a different funding for an opera ability. the answer is yes. i would also say that this is an area where the northern border is a particular issue because of large amounts of world territory that has to be covered. -- rural territory that has

to be covered. we have ways to deal with the urban areas of the country, but the rural areas are more difficult. >> you talked about harper and obama having a meeting and a joint vision -- is there anything being able to dine to share information on visa overstays in that regard? >> that is something we had discussed. there is nothing concrete at this point. i have met with my white house counterpart several times about this. let me get to a point where gm said only 3% goes to the set overstays.

that is only looking at one account. the fact of the matter is, a lot of our programs capture a visa overstays. secure community picks up individuals that had been arrested. the 3% is not really an accurate reflection. >> i understand that. it is difficult, but i will tell you that folds, in illegal -- , in legally and refused to go home. anything we can do to help you in that regard to remind them to head back is incredibly important. i recently called for an investigation against a university that manipulates immigration laws to bring people in. it is a backdoor. are you aware of these schools?

as the president taken any steps to remedy that? >> yes. we have been a initiative on the sham university issue. we have dealt with several of them. absolutely. >> thank you for that. i appreciate the work about allowing planes to land with fewer passengers. the director of the airport is going to be coming to town and meeting with the commissioner and other senior folks, and i hope that will be a productive meeting. i don't ask this as a question, but just appreciate your efforts in working together to solve the problem. i think it is a big problem, from my perspective, and it can

be handled at year-end giving guidance to focus on the ground. >> we will work with the great falls airport authority. if they want to lend additional passengers, they have to do additional things at the facility. >> i think it can be worked out. >> we will try, absolutely. >> you talked about an elevated state of alert, which is what we are on now, correct? >> we are always on that, yes. >> was increased after the events of sunday? >> i know, we did not issue a separate advisory, except that we began immediately putting out intelligence products to state and local law enforcement, transportation authorities, and the like said that if they wanted to take any individual actions, they could do so.

>> i had to fly into minneapolis sunday night to get here earlier than i normally would through montana, and it seemed to me that tsa was in a more elevated state. i saw people walking around in places that i never noticed them before, the lines were much longer. at the thought the job being done with security was more thorough. did they do that on their own, did you give them instruction? >> that is correct, senator, we increased resources for a few days until we could see with the intel outcome was. >> very good. we very much appreciate your leadership and it is good to have you in front of the committee. >> thank you. >> thank you, mr. chairman, madame secretary, welcome back.

i wanted to pick up on the increased threat level. i want to understand why we are not increasing the threat level. that sounds like we will only increase if there is a specific threat? >> if there is a specific credible intelligence of a threat, yes, an advisory will go out. it can be elevated or eminent. the thought behind this, this was the product of a bipartisan committee shoulcommission. there were a number of experts on the commission. the idea is instead of just putting out a color, give people information. an advisory itself, if we elevate it, maybe it restricted to a particular transportation sector or a particular area of the country. they are designed to expire on the road in two weeks so we

cannot continually at advisory upon advisory, with the fact that nobody pays attention and more. >> but if you increase the threat level, that implies certain actions are being taken, correct? >> there would be certain actions taken with increased threat levels, yes. generalizedwas a increase in the threat level, it would be in reaction to the successful capturing, killing of osama bin laden, correct? i don't quite understand why it we would not be increasing the threat level, at least for a short time. >> this is an ongoing evaluation. at the time of the capture of bin laden, as of yesterday, there was no specific credible threat, specific retaliation, other than generalized there may be something that happens.

in that general sense, we already ask people to help if they see something, to say something. we already have police department's looking at suspicious activity, we are have resources deployed at areas that have been of particular interest, historically, like aviation. that already happens. the advisory system is if we need to elevate a particular area, a particular sector of the country, that goes out and we provide as many facts as we can and we provide what we want people to do, how they can help the government, and how they can stay informed. if you go to disasteralerts.gov, there is a template for the advisory system and a briefing on how it works. i think people i