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Homeland Security Secretary Michael Chertoff updates on immigration and court interference

Thursday, October 11, 2007
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HH: Joined now by Secretary of Homeland Security Michael Chertoff. Secretary Chertoff, always a pleasure to have you, welcome back, good to have you on the Hugh Hewitt Show.

MC: It’s good for me to be on, Hugh.

HH: Secretary, I always start with fence facts that are fun to know and tell. Where are we on the Border fence?

MC: Well, we’re at a little over 151 miles of pedestrian fencing, and about 115 miles of vehicle fencing. But we have a federal judge who has now ordered us to stop building about a mile and a half of fence in one area based on a lawsuit filed by a bunch of environmentalists.

HH: I saw that. That was just entered yesterday, and it’s probably an ESA challenge. But of the 151 miles, Mr. Secretary, how many are double fenced, and how many are single?

MC: Some of it’s double, a lot of it’s single. It just depends on where we are on the Border, what the lay of the land it, and what the geography is.

HH: And for the balance of the year, or for the…where are we going to be by the time the election of 2008 comes around?

MC: Well, I can tell you by the end of calendar 2008, which is what our deadline is, we will have 370 miles of pedestrian fence, and two to three hundred miles of vehicle fence, depending on whether Congress gives us the money to build it. And that is still hung up in Congress in the appropriations process. So I’ve got to get the money. But if we have the money, our plan gets us to really almost 700 miles of vehicle and pedestrian fencing by the end of next year.

HH: Of those 370 miles, Mr. Secretary, how many will be double fenced?

MC: Again, it’s going to depend, Hugh, on what the exact lay of the land is, what the topography is, are we building, for example, where the Rio Grande River is, are we building in mountainous areas, are we building deserts. So it’s all going to depend on the topography.

HH: I understand that, but has the study been done already as to calibrate where the topography would set a single and where it would do a double?

MC: It has been. There are parts that are doubled, there are parts where think single is appropriate, and it is all laid out.

HH: And so what…given that it’s all laid out, what are the breakdowns between single and double?

MC: I can’t tell you off the top of my head what the double versus single is. I can just tell you what the total mileage is.

HH: All right, switching over…it would be useful sometime to get that. I’d love to know that, because I think a lot of people are skeptical of the single fence, and view it as not the full expression of what the Congressional intent was. But I know that’s not what you gentlemen consider, right?

MC: That’s right. We’re looking at what actually works in the real world.

HH: And so…but it would be useful to have the numbers. Next time around, maybe we can get them. Mr. Secretary, I also want to go to the arrest in South Carolina of a couple of University of South Florida students. You’re familiar with that case, obviously. Do you consider them to be terrorists operating with organizations abroad?

MC: You know, I have to be careful, because it is a pending case, they have been charged federally, and I can’t really comment about a pending case. What I can say, obviously, is that the police who apprehended these two individuals, and then immediately communicated with federal authorities, did exactly the right thing. This is exactly the kind of technique we need if we’re going to make sure that we have a close connection between the front line law enforcers and the people who are the analysts and the intelligence folks back in Washington.

HH: To the extent that you can say, is this a serious case? Or are people paying too much attention to it?

MC: Well you know, I view any case where you have federal charges brought against somebody based on a claim that they…or an accusation that they are either planning to commit terrorist acts, or otherwise involved in supporting terrorism, those are all serious cases. A lot of times, the media dismisses these cases, because they say the individuals involved are not, they don’t look they’re criminal masterminds, or terrorist masterminds, or the plot wasn’t very well developed. But the truth is, Hugh, we can’t afford to wait until somebody’s lighting the fuse to the bomb to intervene and arrest them. We have to act at the earliest possible moment, and that’s what we do.

HH: Your counterpart in Great Britain, the head of MI5, has said 5,000 active jihadi plotters at any given time in the United Kingdom. What’s the comparable number in the United States, Mr. Secretary?

MC: Well, I don’t think we’re in quite the same league in terms of the number of plotters here in the United States. But I do think we have identified sleeper cells or people who are sympathetic to terrorists and potentially operatives. We’ve had a number of cases brought over the past several years, cases up in the Pacific Northwest. We’ve obviously got charges pending involving the Fort Dix case and the JFK plot. So we have looked at plots or alleged plots in a lot of parts of the country, and it’s something we actively monitor.

HH: Do the surveillance authorities that you have under the Patriot Act, even those that have partially enjoined in the notice letters, et cetera, for the New Jersey judge, I believe it was, are they sufficient to the task at hand?

MC: Well, if we are allowed to keep the authorities that we have been given, they will be sufficient. But if the Congress or the courts take back those authorities, then we are putting ourselves at risk. And I would hate to be around and see a circumstance where we missed the plot because we lost the ability to do the kind of surveillance that we are currently doing.

HH: Are you running into great difficulty in persuading Democratically-controlled committees of that necessity, Mr. Secretary?

MC: Well, I think one of the struggles now in the FISA law is whether we are going to be allowed to keep the kind of approach to surveillance that the head of National Intelligence, Mike McConnell, has said is critical if we’re going to be able to move quickly to intercept plots before they come to fruition, and recognizing, of course, that we think that what we’re doing is compatible with civil liberties. We’re not looking to circumvent people’s rights. But we do have to recognize in the 21st Century, technology has given an advantage to the terrorists, and we have to keep pace with that.

HH: Now Iran has often sponsored terrorism abroad through the Quds forces. There’s a debate within the administration whether or not they ought to be classified as a terrorist organization. Do you believe that Iran has agents inside of the United States that operate pursuant to their direct orders?

MC: Well you know, again, we have traditionally tracked agents of all kinds of foreign powers, whether they are from states like countries, or whether they are acting on behalf of terrorist organizations, or whether they’re acting on behalf of state-sponsored terrorist organizations. And without revealing classified information on the radio, I would say that we are certainly alert to the possibility that agents acting on behalf of a state-sponsored terrorism are operating in this country.

HH: Well, that’s the general. We understand that. But specifically about Iran, without obviously releasing classified information, is there a particular concern that it operates as it has in Europe, the sorts of cells that throughout the 80’s and 90’s assassinated people?

MC: Let me say this, that we know, and I think we’ve actually said this publicly and put it in court papers, that Hezbollah, which is certainly a grade one terrorist organization, has very strong affiliations with Iran. We have from time to time actually made cases against Hezbollah members or affiliates here in the United States. So we are certainly concerned and actively monitoring Hezbollah, which as you know, operates worldwide as a terrorist organization.

HH: Does the appropriation you’re getting for Homeland Security provide you with the tools necessary to effectively pursue counterterrorism in the United States at the level you want, Michael Chertoff?

MC: Hugh, if we get what we’ve asked for, and it’s still pending in Congress, that will give us what we need to do the job for this coming job. But right now, as I say, it’s kind of stalled in Congress. I’m working with members of Congress, and I think I’m optimistic we’re going to get what we need, but we want to get this resolved as soon as possible.

– – – –

HH: Mr. Secretary, I want to talk about this lawsuit. One quick question, are you staying to the end of the administration? Are you going to be there when they turn out the lights on the Bush administration?

MC: You know, God willing and the President willing, I’m staying to the end.

HH: Excellent. Thanks for your service. Now we’ve got these judges in California. You know the 9th Circuit.

MC: I do.

HH: You used to be a circuit court judge yourself, and I’m sure at the judicial conferences, you’d look askance over at the 9th Circuit judges. But Judge Maxine Chesney has restrained you folks from matching up Social Security numbers with no-match employees. What’s the response of the Department? What’s your assessment of her argument in her opinion?

MC: Well, first to be fair, it was Judge Charles Breyer, not Judge Chesney.

HH: Oh, I’m sorry, I’ve got Chesney on my notes here.

MC: And so I want to be fair about that. Our reaction is that obviously, we’re disappointed the judge has put a roadblock in our implementation of the regulation. The good news is we actually had favorable rulings on most of the main legal arguments, and I think that we can address the remaining concerns. But I am disappointed that we have a lawsuit where you have a number of labor and business groups that are working together to continue to throw obstacles up to our efforts to enforce the law.

HH: Now Mr. Secretary, I litigate a bit in the 9th Circuit. There are emergency processes by which you can take a district court TRO up to the 9th Circuit. Why hasn’t the Department done that yet?

MC: Here’s what we’re doing. We’re analyzing the decision, we’re trying to determine are there some things we can do quickly on an administrative basis that will address the problems the judge raised. We’re also considering whether we’re more likely to get a good result in the district court if we continue to litigate or if we take it up to the 9th Circuit. Obviously, as you know, Hugh, it depends on which judges you get on the circuit. So this is something I’m letting the lawyers analyze over the next few days. The point that I have tried to make, though, to the public and the business community is this is not an enforcement holiday from the law. We are going to continue to make cases, including criminal cases against employers who knowingly violate the law.

HH: Now I realize we like to defer to lawyers, but again, you’re the circuit judge. So I’m just curious, doesn’t it make sense to get it to the 9th Circuit, get that most unusual collection of jurists to opine, and then take it either to Congress or the Supreme Court if necessary, rather than screwing around with a district court judge at that level?

MC: It might, Hugh, but we also have to look at the possibility that given the areas of concern, we may be able to cure the judge’s problem simply by making a couple of adjustments in the administrative process. So what I’m interested in is what is going to give us the quickest resolution for this issue, and what is going to give us that resolution that is most likely to withstand an appeal by the other side. And that’s what we’re focused on now.

HH: Okay, last couple of questions about immigration reform. I opposed the bill that was out last year, but I do believe in regularization following the Border security coming along. Do you see a possibility of getting the fence to the point that it persuades people like me that it makes sense, changing it, the draft law to the point that it doesn’t treat Mexicans and Central Americans the same way it treats Middle Easterners, and then trying to get something done in 2008 that is comprehensive, but maybe not as ambitious as last year’s bill?

MC: I do see a possibility off that, Hugh. I think that we need to obviously establish our credibility with the public, and we need to continue to move forward on the enforcement piece. And one of the reasons I’ve been out very aggressively banging the drum on moving forward with all these elements of enforcement, and frankly kind of putting a spotlight on the efforts being made to prevent us from enforcing is because I think if we can get the enforcement piece right, then we can come back with a plan that’s comprehensive. It may be a little less ambitious than this year’s plan, but at least it would give us a good down payment on getting where we need to get to cure this problem once and for all.

HH: As a matter of constructive criticism, would you understand how not knowing the number of double miles of fencing might lead people to conclude that it’s going to be another bump and run in the night, and that we really can’t trust the administration to give us the facts?

MC: Well, I think we can certainly provide numbers like that. What I want to say to you, though, is I want to look at fencing not as if it a kind of a symbolic icon that has a value in and of itself. It’s a very useful tool, but it’s part of a package of tools. So we may very well decide that the right way to spend the money that we have is to put more single fencing along more border, as opposed to building double fencing where we don’t think we need it.

HH: Oh, I agree with that, but the transparency, I think, has been what has been lacking, the sort of easy access to the government’s thinking process, and then stories like the virtual fence not working in Lockheed, or is it Boeing running around being very upset with their implementation. Is that getting fixed, Mr. Secretary?

MC: Well, we are, and I’ll tell you my attitude to Boeing is, and I told the CEO straight out. I said look, I know the individual pieces work, but your obligation is to give us a system that works as an integrated whole, in the demanding operational environment of the desert. And I’m going to be a tough consumer here on behalf of the taxpayer. So until I’m satisfied that this works properly, I’m not accepting it. And we’re going to begin that acceptance testing in the next week or so. We’re going to give it 20-30 days, make sure we’re really happy with it, and if and only if we are happy are we going to accept it.

HH: Homeland Security Secretary Michael Chertoff, always a pleasure, thank you, Mr. Secretary.

End of interview.

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