By Lora Ries
The House is experiencing a burst of energy to encourage DHS to implement a biometric exit system. Recently, Rep. Candice Miller (R-MI) introduced a bipartisan entry-exit bill, H.R. 3141, “The Biometric Exit Improvement Act.” Last week, she chaired a Subcommittee on Border and Maritime Security hearing, “Fulfilling a Key 9/11 Commission Recommendation: Implementing Biometric Exit.” This week, the House Subcommittee on Immigration and Border Security is holding a hearing, “Implementation of an Entry-Exit System: Still Waiting After All These Years.”
To refresh our collective memory, the 9/11 Commission recommended that:
The Department of Homeland Security, properly supported by the Congress, should complete, as quickly as possible, a biometric entry-exit screening system, including a single system for speeding qualified travelers. It should be integrated with the system that provides benefits to foreigners seeking to stay in the United States. Linking biometric passports to good data systems and decision making is a fundamental goal.
For the tenth anniversary of 9/11, Tom Kean and Lee Hamilton (the Chair and Vice Chair of the 9/11 Commission, respectively) released “The Tenth Anniversary Report Card: The Status of the 9/11 Commission Recommendations.” In it, Kean and Hamilton noted that although the entry part of the screening system was successfully implemented in US-VISIT, the exit portion was still missing. They wrote:
“As important as it is to know when foreign nationals arrive, it is also important to know when they leave. Full deployment of the biometric exit component of US-VISIT should be a high priority. Such a capability would have assisted law enforcement and intelligence officials in August and September 2001 in conducting a search for two of the 9/11 hijackers that were in the U.S. on expired visas.”
Two years after that report card, we remain without a biometric exit system in sight. The lack of such a system has not been for a lack of legislation. Following 9/11, Congress mandated an exit system in the 2001 USA PATRIOT Act, the 2002 Border Security Enhancement law, the 2004 Intelligence Reform law (stemming from the 9/11 Commission’s Recommendations), and again in the 2007 9/11 Commission Recommendations Act. It has been the leadership of DHS that has declined to implement a biometric exit system.
After Secretary Tom Ridge, the champion of US-VISIT and a biometric entry-exit system, left the Department, Secretary Chertoff had the Secure Border Initiative as his priority and Secretary Napolitano chose to augment the biographic manifest system rather than a biometric exit system, stating biometrics were too expensive for the marginal benefit they would bring. With the proliferation of mobile devices and Apple’s new iPhone that scans fingerprints, it is easy to see that the price tag excuse can no longer be used.
It is both interesting and frightening to note that any progress made regarding an entry-exit system has occurred after a terrorist attack. After the 1993 World Trade Center bombing, Congress first passed legislative language calling for an entry-exit system in a very short provision known as “Section 110” of the 1996 Immigration Reform bill. Not only was it ignored during the Clinton Administration, but there were frequent attempts to repeal the language by various members of Congress and interest groups. The 2000 INS Data Management Improvement Act amended section 110, calling for an integrated entry and exit data system. That bill ended the repeal attempts, but entry-exit still gained no traction in the Administration. Until we were attacked.
After 9/11, President Bush stated that his Administration would implement the entry-exit system. Secretary Ridge created the US-VISIT office, elevated it among the DHS organization, and oversaw the implementation of biometric entry. With his departure, however, the program again lost support, and the biometric exit portion of the system never got off the ground. This year, US-VISIT was broken up, its entry-exit piece going to CBP and its overstay piece going to Immigration and Customs Enforcement (ICE). What remains in NPPD, the biometric matching portion, has been renamed the Office of Biometric Identity Management (OBIM).
What will it take to actually implement biometric exit? Another champion? Another attack? One can’t be blamed for asking the latter question, given the history of entry-exit. It is not difficult to imagine an attack occurring on U.S. soil, the culprits fleeing the country using false names, thereby bypassing our biographic name checks. Americans, including some of the same politicians who have opposed implementing biometric exit, would be up in arms, demanding to know why DHS still hasn’t implemented biometric exit a dozen years after 9/11. We’ve had close calls to give us more than enough warning that this security gap exists and needs to be closed.
After the photos and identities of the Boston Marathon bombers Tamerlan and Dzjokhar Tsarnaev were discovered, but before the brothers were caught, questions arose over whether they had departed the United States to return to their home country. The fact that security agencies do not know whether identified and wanted terrorists have left our country greatly aggravates their search and investigation abilities, and it is a serious security vulnerability. Let us not forget the confusion and enormous pressure our law enforcement and intelligence agents experienced immediately after the 9/11 attacks in trying to determine whether terrorists or their supporters responsible for the attack were still in the United States or had departed.
In May 2010, Faisal Shahzad ignited and left a car filled with explosives in the iconic Times Square. The car bomb failed to explode before it was discovered and disarmed. Two days later, Shahzad attempted to leave the United States. He was arrested by Customs and Border Protection (CBP) after he boarded his plane to fly to Dubai from JFK International Airport. Because he had been placed on the No-Fly List and used his correct name when purchasing his plane ticket, a routine post-boarding check revealed Shahzad’s name on the No-Fly List. He was minutes from take-off. Had he used a false name, he likely would have succeeded in escaping.
This vulnerability exists for cases beyond terrorism as well. Law enforcement would much rather catch serious criminals and would-be international child abductors inside the United States versus pursuing extradition once they are outside of the country. In August 2010, serial stabber suspect Elias Abuelazam was caught at the Atlanta Hartsfield International Airport as he was trying to flee to Israel. He had stabbed 18 men, killing five of them.
Though Congress need not legislate anew regarding biometric exit, due to the numerous laws mentioned above, both the Senate and the House have waded in again in this year’s immigration reform bills. Unfortunately, both bills would roll back current law. Rather than continuing to require a biometric exit system at all air, sea, and land ports, the Senate bill (S. 744) requires a biometric exit system at only the 10 U.S. airports with the highest international travel volume and gives DHS another two years to establish it. By December 2015, the bill calls for a mandatory exit system at air and sea ports, but not a biometric one. Six years from date of enactment, the bill requires biometric exit at the core 30 international airports. All the bill requires with respect to biometric exit at land and sea ports is another plan – and the Secretary has six years to submit the plan this time.
In the House, the Committee on Homeland Security passed H.R. 1417, the “Border Security Results Act.” It too lets DHS punt on biometric exit. Six months from date of enactment, the bill requires the Secretary to submit a plan to immediately implement a biometric exit capability at all port types. If, however, the Secretary determines that development of a biometric exit system is not feasible, the Secretary must submit a plan to implement an alternative program to provide the same level of security in two years. Unfortunately, that is what this Administration has been doing – submitting plans for a substitute, exploitable biographic exit program. So H.R. 1417 does not advance our security.
Apparently, House Border and Maritime Security Subcommittee Chairwoman Candice Miller agrees because leading up to her subcommittee’s biometric exit hearing, she introduced H.R. 3141, the “Biometric Exit Improvement Act.” The bill would require a biometric exit data system:
- At the 10 highest volume U.S. airports and 10 seaports within two years;
- In a six-month pilot program for non-pedestrian outbound traffic at three land ports of entry within 18 months;
- At all land ports of entry for pedestrians within three years; and
- At all air and sea ports within five years.
It is worth noting that the original cosponsors of H.R. 3141 are Reps. Loretta Sanchez (D-CA), Mike McCaul (R-TX), Bennie Thompson (D-MS), Sheila Jackson Lee (D-TX) and Peter King (R-NY). At the Homeland Security hearing last week, Rep. Jackson Lee stated that achieving the exit mandate is long overdue. Without an implemented biometric exit system, she said “we are left with no information, no ability to track, and no way of providing assurance that our homeland is secured.”
Left to its own implementation, DHS currently plans to, for the first time, publish overstay rates by the end of the 2013 calendar year, test biometrics at a facility in 2014 and implement biometric exit at one airport by mid-2015. From the hearing testimony, CBP still does not seem convinced that the benefits from a biometric exit system would outweigh the cost of such a system, despite the advances in mobile biometric technology since CBP’s last cost estimate ($3 billion for just airports) five years ago.
In its conclusion that biographic exit is good enough, DHS has failed to explain to the public just how many USCIS, ICE, CBP, and State Department databases must be manually checked before staff can determine the status of an alien, including whether the alien has departed the country. In 2011, DHS had a backlog of 1.6 million potential overstay records. Secretary Napolitano pulled a considerable number of resources from other tasks to review the backlog cases. This temporary special project led to DHS closing approximately 863,000 cases. Now, two years later and without the extra resources, the backlog has crept back up to more than 1 million unmatched arrival records. Is that good enough? How much time and money is spent doing these inefficient and labor-intensive manual biographic checks?
In contrast, matching a biometric exit to a biometric entry record takes seconds. And time is of the essence when it comes to identifying terrorists and serious criminals before they flee the country. In addition, a biometric exit system would bring significant integrity to our immigration system. Consular officers, CBP inspectors, ICE investigators, and USCIS adjudicators could decide the case in front of them with confidence that they are making the correct decision because they have a complete, up-to-date immigration history of the applicant. How much money is that benefit worth?
Any objective observer would conclude that DHS is far from fulfilling the 9/11 Commission recommendation to implement biometric exit. Both DHS intent and congressional bills continue to call for plans and slow phase-ins of a biometric exit system at limited ports. However, with enough examples of near terrorist and serious criminal escapes, a new call by al Qaeda leader Ayman al-Zawahiri for sustained attacks on U.S. soil, and another backlog of more than 1 million potential overstay records, we should not be kicking the exit can further down the street.
It’s not a matter of if a terrorist or serious criminal will flee the United States by using a false name and getting past our biographic exit; it’s a matter of when. The clock is ticking. Let’s close this known security gap before it is exploited.
Lora Ries is a Senior Principal at CSC, where she works on Immigration Reform Strategy. Previously, Lora was the Director of Immigration Policy at DHS and Immigration Counsel for the House Judiciary Committee.