Prepared Testimony of Michael W. Cutler, Senior Special Agent, INS (Ret.) for the hearing to be conducted on April 8, 2011 by the New York State Senate Committee on Veterans, Homeland Security and Military Affairs Committee on the topic:
“To consider opportunities to improved New York State’s Homeland Security Operations and how far we have some since September 11th 2001”
Chairman Ball, members of the committee, distinguished members of the panel, ladies and gentlemen; It is a privilege to be provided with this opportunity to provide testimony at a hearing of such extreme importance given our nation’s ongoing wars on terrorism and transnational criminal organizations.
Being appointed as a chairman of a committee is the result of a political decision. Being a true leader, however, takes personal commitment and I certainly appreciate the leadership that Chairman Ball has consistently demonstrated in addressing the vulnerabilities that impact the people he represents. Today as Chairman of the New York State Senate Committee on Veterans, Homeland Security and Military Affairs all of us who live and work in the State of New York are being effectively represented where some of the most important issues are concerned.
While the Capitol of the State of New York is in Albany, it is extremely appropriate that today’s hearing is being conducted in lower Manhattan, just a few blocks away from what has come to be known, around the world, as “Ground Zero.”
It is also appropriate and greatly appreciated, that Representative Peter King, the Chairman of the House Subcommittee on Homeland Security is here today. The responsibility of securing our nation and protecting our citizens must be seen as an obligation of our government on all levels. The federal government must have the close cooperation of the local and state governments if our nation and our citizens are to be protected from the threats posed by terrorists as well as transnational criminal organizations.
Former Speaker of the House, “Tip” O’neil is famously remembered for his statement that all politics is local. When you come down to it, nearly all law enforcement is also local because when people become the victims of crime and terrorism, those attacks certainly occur within the United States- but in point of fact, they are, in reality, being attacked in cities and towns to be found throughout our great nation.
This is why local, state and federal law enforcement agencies must all work cooperatively in order to develop a synergistic relationship.
As a citizen of the United States and as a New Yorker I cannot and will not ever forget the horrific events of September 11, 2001 when our nation, our state and our city were attacked on that day nearly ten years ago. Of course the attack also visited violence upon the Pentagon and the field in Shanksville, Pennsylvania.
I worked for the former INS (Immigration and Naturalization Service) for approximately 30 years. When I applied for my job with the INS I was interviewed at the Immigration Service’s New York District Office that was, at that time located at 20 West Broadway, just one block from the World Trade Center Complex. In fact, I still recall sitting in an office as I waited to be interviewed. I was able to peer out the windows and watch as construction workers were working on those magnificent towers.
I could never have imagined how those incredible buildings would be turned to rubble approximately 30 years later, in part, because of a series of failures of our government and in particular, because of a series of failings of the agency I would spend so many years of my adult life working for.
The attacks of September 11, 2001 which resulted in the destruction of what had been one of the crown jewels of the New York City Skyline, the World Trade Center complex, was not the first attack on those iconic buildings. As you know, on February 26, 1993 a bomb that was planted in the subterranean garage located below the World Trade Center was detonated by another group of radical Islamist terrorists. That attack resulted in the death of six innocent victims and inflicted injury on hundreds, if not thousands of people. One tower nearly toppled sideways and the damage to the complex was estimated at one half billion dollars. The terrorists who carried at that attack in 1993, like those who attacked our nation on 9/11, first needed to gain entry into our country in order to carry out their malevolent plans. They also needed to find a way to hide in plain sight while they went about their preparations for those attacks. In the parlance of the 9/11 Commission, they needed to find a way to “embed” themselves in our country and therefore, in communities across our nation.
When our nation’s leaders failed to learn the lessons that the first attack on the World Trade Center in 1993 should have taught us, the door was left open to the horrific attacks of September 11, 2001.
In my judgement, many of the very same vulnerabilities are still not being addressed today. To me, this is incomprehensible. My dad used to say that there are no mistakes only lessons provided that we learn from what goes wrong and make appropriate changes in how we do things.
Our nation’s borders are as porous as a sieve and there are unknown millions of illegal aliens living in cities from coast to coast and border to border.
While there have been all sorts of accusations made about those of us who believe that our nation’s borders must be secured and our immigration laws must be enforced, it is vital to note that the immigration laws make absolutely no distinction as to the ethnicity, religion or race of people only citizenship. The only distinction the immigration laws make is between those people who are aliens and those who are citizens. Our immigration laws are intended to protect our nation and our citizens, as well as others who are to be found within the borders of our nation, from those aliens whose presence would be harmful or even dangerous to our well being.
Mr. Chairman, you no doubt noticed that I used the word “alien.” Contrary to what some folks may say about that word, the word alien is not a pejorative. It is a legal term that according to the Immigration and Nationality Act defines an alien simply being any person who is not a citizen or national of the United States. Virtually every other country on this planet uses the term alien, or a comparable term, to describe foreign nationals who are present on their soil.
I ask that you consider the grounds under which aliens are, according the Immigration and Nationality Act, supposed to be prevented from entering our country. Among the grounds for exclusion include aliens with dangerous communicable diseases, aliens who suffer extreme mental illness and are prone to violence, aliens who are convicted felons, aliens who have committed war crimes or human rights violations. Aliens who are human traffickers and drug smugglers, aliens who belong to violent gangs and aliens who are involved with terrorist organizations or are engaged in espionage.
When an alien circumvents the inspections process and runs our nation’s borders, it must be presumed that he (she) would be excludible for one or more grounds and therefore seeks to avoid the scrutiny of the inspections process. By evading the inspections process, aliens who surreptitiously enter our country also leave no record of their entry.
This is why I have often made the point that the difference between an immigrant and an illegal alien is comparable to the difference between a houseguest and a burglar. Virtually every front door on our houses and apartments are equipped with peepholes and door bells so that a stranger seeking entry can notify the homeowner as to their presence and request permission to enter. A stranger seeking to enter into someone’s home is required to first seek the permission of the homeowner. Similarly an alien seeking to enter a country of which he is not a citizen must first secure the permission of the government of that country. That is the responsibility of the CBP at ports of entry.
Because nothing is known as to the identity and intentions of illegal aliens who entered our country by running our nation’s borders, their presence in our country represents a violation of law and must be presumed to be potentially harmful. This is why it is of extreme importance that when police officers encounter illegal aliens during the course of routine police duties, especially when they are making arrests, they must take immigration status into account. This is not about racial profiling but about effectively identifying those individuals with whom they come into contact without regard to race or ethnicity. This is simply about commonsense and seeking to enhance community safety and national security while also providing for the safety of the police officers who are involved in such encounters.
Having mentioned how immigration is a factor where police work is concerned, I want you to know that as an INS Special Agent I spent many years working closely with a number of local police departments as well as with the state police of several states. I had the privilege of working closely with many members of the NYPD throughout my career and especially when I was assigned to the Unified Intelligence Division of the New York Office of the DEA and when I was assigned to the Organized Crime Drug Enforcement Task Force when I was promoted to the position of Senior Special Agent. I know that Police Commissioner Ray Kelly will understand why I refer to my having worked in close cooperation with the NYPD as a privilege. New York’s finest does an unparalleled job of keeping the residents of New York City safe.
Another claim made by those who advocate for sanctuary cities and appear to be determined to create an amnesty program for illegal aliens, and all but declare that unlawful entry into our country should be a prerequisite for naturalization, is that if police officers were to take immigration status into account would harm community policing. They claim that if police officers worked with ICE special agents that members of the immigrant communities would not trust the police and would fail to report crimes, even if they themselves were the victims of those crimes.
In my judgement, borne of having spent so many years working in close cooperation with local police departments, is that quite the contrary is true. There are visas that can be provided to illegal aliens who fall victim to crime and cooperate with law enforcement authorities. These visas can not only ultimately provide such aliens with lawful status in our country but can enable these aliens to even bring their spouses and children into the United States legally. Similarly there are other visas that can be provided to informants and those who are willing to work cooperatively with law enforcement officers. This provides a much stronger incentive than the cash rewards for information and cooperation that is traditionally used by law enforcement to encourage witnesses and others with important information to come forward.
Effective use of immigration laws can greatly enhance community policing and provide police officers with important weapons they can bring to bear in combatting criminal aliens. There are specific federal crimes that focus on aliens who engage in criminal activities. For example, there is a specific crime known as re-entry after deportation which, if it involves an alien who had been deported because of convictions for felonies, carry a maximum penalty of 20 years in prison. I am particularly pleased with this statute because back in the early 1980’s I worked with then New York Senator Alphonse D’Amato to enact that law.
Two additional examples of laws that focus on criminal aliens is a law that deems possession of a firearm by an illegal alien to be a felony with a maximum penalty of ten years in jail and another law that deems visa fraud to be a crime with a 25 year maximum incarceration if the alien who lied on his visa application or application for an immigration benefit in conjunction with terrorism.
These crimes can only be prosecuted if ICE becomes involved in the investigation.
Additionally, involving ICE in these investigations can also help make certain that criminal aliens will be removed from the United States when they complete their jail sentences, presuming that they are successfully prosecuted- provided, of course, that ICE takes the appropriate measures to seek the removal of these criminal aliens.
In my experience the enforcement of these laws furthers the goals of community policing and provides the additional benefit of removing criminal aliens from the immigrant communities in which these transnational criminals operate. It is important to understand that often the immigrants in these immigrant communities are facing the greatest danger of becoming the victims of crimes committed by these transnational gang members who come to our country from the four corners of our world.
There are a number of reasons I am opposed to any massive amnesty program under the guise of “Comprehensive Immigration Reform” as I am opposed to providing driver’s licenses to illegal aliens.
At the top of that list are my concerns about the inability to properly identify illegal aliens and determine their true citizenship, backgrounds, potential affiliation with criminal or terrorist organizations. I am adamantly opposed to any blanket amnesty program that would require our federal government to provide millions of such illegal aliens with lawful status in our country signified by official identity documents that they would, of necessity, be issued. The names on those documents would reflect the identities that these illegal aliens would claim related to them. The problem is, as I know Police Commissioner Ray Kelly would confirm, is that criminals and terrorists use multiple false aliases as a means of camouflage. Those who possess malevolent intentions use changes in identity the way a chameleon uses changes in coloration- in order to hide in plain sight among his intended victims.
This is why I have come to refer to Comprehensive Immigration Reform by a different, but I believe far more descriptive and accurate term- I refer to it as the Terrorist Assistance and Facilitation Act.
There are those who advocate for amnesty programs and the issuance of drivers licenses for illegal aliens claiming that all of these aliens would have to undergo a “security check.” All that a security check entails is the running of fingerprints through computerized databases and the running of the name of the individual through similar databases. An alien who has run our borders and who has managed to keep a low profile and not been arrested by law enforcement would have a clean fingerprint record. If that alien provides a fictitious name, the name will also come back as a “No hit.” As a result, a terrorist whose true name is listed on “No Fly” and terrorist watch lists could easily game the system and develop a brand new clean identity for himself (herself) and acquire a completely new identity that would enable him to get a Social Security card, driver’s license, credit cards, library cards and be able to gain access to airplanes, government buildings, office buildings and get a job anywhere he wants. This would enable him to travel freely around our country.
This is not simply conjecture on my part but is how the terrorists who attacked our nation on September 11, 2001 made use of multiple false identities and officially issued documents such as drivers licenses that provided them with the ability to embed themselves in our country. This is how they were able to attack our country.
Other terrorists who have been identified as operating in our country also made similar use of multiple false identities substantiated by official identity documents.
While our nation does not require its citizens to carry a national identity document, driver’s licenses are, in fact, America’s de facto national identity documents. They are used for more than just providing evidence that the bearer of the license is authorized to drive a car. Driver’s licenses provide credible evidence of a person’s identity and enable those who have driver’s licenses to board airliners, enter government and corporate office buildings, conduct business and seek employment. That is why I am concerned about any program that would provide driver’s licenses to illegal aliens whose presence in our country represents a violation of law and whose true identities are unknown and unknowable. Driver’s licenses provide illegal aliens with a level of credibility and an appearance of normalcy that represents a threat to our nation and our communities.
It has been said that the only thing worse than no security is false security. A program that provides official identity documents and/or lawful immigration status to illegal aliens, after a cursory security check is performed, would represent false security.
There is another category of aliens whose presence also represents a violation of law and these are the aliens who are admitted into the United States and then, in one way or another, violate the terms of their admission into the United States and thus our immigration laws. Because a program known as US-VISIT has never been fully implemented, even though the 9/11 Commission strongly recommended that this program be made to work effectively, there is no accurate estimate as to how many aliens in our country are visa violators. Estimates range from a low of about 5 million to as high as 10 million.
Five of the 9/11 terrorists were, in fact, visa violators. According to published reports, four of the 9/11 terrorists had been stopped by police officers for speeding but were issued summonses and permitted to go on their way. By remaining at large they were able to participate in the attacks of September 11, 2001.
According to recently published reports, ICE has assigned fewer than 300 special agents of that beleaguered agency to attempt to locate and apprehend those millions of visa violators.
It has been estimated that there are approximately 6,000 special agents employed by ICE to enforce not only the immigration laws but customs laws as well, for the entire United States of America. It believed that only half of those agents are routinely engaged in enforcing the immigration laws for the entire interior of the United States. This means that there are about 3,000 special agents of ICE tasked with enforcing the immigration laws for our entire nation. To put this in perspective, there are as I understand it, about 35,000 police officers working for the NYPD just to protect the City of New York and its residents and visitors. This means that the federal government has fewer than 10% as many ICE agents for the entire United States of America as there are police officers employed by the NYPD.
Today, any alien who can ultimately get past the Border Patrol or be admitted into the country via the inspections process and then violate the terms of his admission, has little to fear from where the immigration laws are concerned. Having local police back up the beleaguered and greatly outnumbered personnel of ICE would create a greater deterrence against illegal immigration. Any law enforcement professional will tell you that it is far better to deter a crime then to try to investigate a crime after it has been committed.
Police offices need to take immigration issues into account for a number of important reasons that not only deal with terrorism- important as that mission is, there is also the issue of criminal aliens and transnational gang members.
Dead is dead. A person killed by a criminal is no less dead than is a person who is killed in a terrorist attack.
When a police officer arrests an individual for allegedly committing a crime, the next order of business is to determine the true identity of the person and to seek to determine if that individual is the subject of a warrant from the local police or other law enforcement agency.
Next the arrested suspect is brought before a judge or magistrate who will determine the appropriate bail that is to set. A bail hearing consists of two issues- danger to the community and risk of flight. While the apparent danger to the community may be relatively easy to articulate in court- the suspect was found with a weapon, a quantity of narcotics or was, perhaps being charged with assault of some sort, the issue of risk of flight can be far more nebulous.
Immigration records can be instrumental in providing evidence of flight risk. So much so that a number of the federal prosecutors I worked with during my career often called upon me to help present a bail argument in court. An illegal alien who has, in the past, used multiple false names and has provided false and especially nonexistent addresses certainly demonstrates how untrustworthy his information may well be. This picture of flight risk comes into sharper focus when an alien has failed to show up for immigration hearings even after posting appearance bonds and has been ordered deported on a number of occasions and then unlawfully reentered the United States. Certainly this sort of information would be of extreme value to enable the judge to set appropriate bail or, perhaps, determine that risk of flight is so great that the suspect should be remanded without bail.
The bottom line is that the effective enforcement and administration of the immigration laws of our country are essential for national security as well as community safety.
I look forward to your questions.