Border Fence Funding Hoax of 2006 and 2007

How Congress And The President Are Working Behind-The-Scenes To Un-Do The Secure Fence Act

As Grassfire.ore has previously reported, despite grandiose claims, our government has built just 5 miles of the the 854 miles of double-layer border fence mandated by the Secure Fence Act of 2006. (Go here for that report.) While this fact is outrageous in and of itself, it begs a question:Why?

If the law mandated a double layer fence covering 854 miles of fencing, then how come such little progress has been made?

Grassfire.org's research staff has uncovered the truth of how Congress and the President are playing games with the American people -- pretending to support a real border fence but then working behind the scenes to ensure that the Secure Fence Act is never really implemented.

Secure Fence Act Hoax of 2006
In the fall of 2006 when Congress passed and the President signed into law the Secure Fence Act, most Americans thought they understood what they were getting. The plain text of the law states that "the Secretary of Homeland Security shall provide for [at] least 2 layers of reinforced fencing, the installation of additional physical barriers, roads, lighting, cameras, and sensors" along a specified range of the U.S.-Mexico border. The Act then stipulated the precise regions of the border, covering a total of 854 miles. [Note: using Google Earth, Grassfire has created a short video showing the precise areas that have been mandated by the Secure Fence Act to have double-layer fencing. View here.]

But the very same day that the Senate passed the Secure Fence Act, Senate leaders had already hatched a plan to, in essence, un-do the Act. More precisely stated, Congress passed another law giving the Department of Homeland Security (DHS)discretion over how and where the fence would actually be built. That night, after the Secure Fence Act was passed, Sen. Kay Bailey Hutchison rose to the floor of the Senate and expressed her concern that the Act was too restrictive and would impose too much of a burden on Texas' border communities. Hutchison then submitted into the record two letters written earlier that day. The first was a letter she had received from Majority Leader Bill Frist earlier in the day addressing Sen. Hutchison's concerns; the second, Frist's letter to House and Senate leaders issuing specific legislative directives related to Hutchison's concerns. The letter made three stipulations:

1. Congress "will work with the Department of Homeland Security" (DHS) to consult with state governments, local governments, and Native American tribes "regarding the exact placement of fencing and other physical infrastructure along the southwest border of the United States."
2. Legislation will give DHS "flexibility to use alternative physical infrastructure" instead of fencing when DHS sees fit.
3. The legislation will "clarify the definition of operational control of the border" to ensure a "workable standard for the Department."

Read Hutchison's comments and Frist's letter from the Congressional Record (.pdf). Thus, we see that a deal had already been struck to basically un-do the Secure Fence Act before the vote was even taken. The whole event was carefully staged to create the impression that Congress was clamping down on illegal immigration. You see, Republicans were just a few weeks away from the '06 elections and were desperately looking for an issue that would save them from defeat. So they passed the Secure Fence Act in hopes that people would overlook G.O.P. corruption when they went to the polls. Interestingly, as the Senate was voting on the Secure Fence Act vote, Democrats correctly criticized the G.O.P. for playing election-year political games. Sen. Patrick Leahy said the G.O.P passed the bill to "pander to the anti-immigration crowd" and give lawmakers "something they can take with them and hold up as a Republican victory for national security." Added Sen. John Kerry: "Knowing they cannot go home without taking some action to address immigration, Republicans in Congress have decided that saving their seats is more important than securing the borders."

Timeline of Events Surrounding Fence Act Hoax
Here is the precise timelime of events surrounding the passage of the Secure Fence Act and the subsequent appropriations bill that undermined the Act:

DHS questions necessity of border fence
It gets worse. The funding bill passed by Congress required that DHS report to Congress on how it would spend the funds prior to most of the funds being release. It is in DHS's report that it becomes clear that neither Congress nor the Administration really ever intended on adhering to the Secure Fence Act. First, DHS's plan -- called SBInet (Secure Borders Initiative) -- does not reference the goals of the Secure Fence Act. Second, DHS's report back to Congress in December 2006 openly questioned whether the border fence was necessary.

Instead, DHS arbitrarily decided there should be 570 miles of total border barriers, of which 370 miles would be actual pedestrian fencing (not double layer). Thus, instead of 854 miles of double-layer fencing, DHS set a goal of 370 miles of "pedestrian" fencing (i.e. not double-layer fencing). It is clear that DHS felt no obligation to fulfill the specific requirements of the Secure Fence Act.

But that's just the beginning....

Border Fence Funding Scam of 2007
Skip ahead to this fall as Congress has been considering a $3 billion funding bill for border security and allegedly the fence. As you may know, that amendment was stripped out of the Department of Defense appropriations bill last week. But even if they had passed the $3 billion funding amendment, DHS will not be required to use any of that money for the border fence! Not ONE DIME!

That's because of another amendment put forward by Sen. Hutchison that said DHS would not have to build the fence. This Amendment (SA 3176) seems, at first glance, to support building a fence. It is entitied "Improvement of Barrier At Border" and states in Subparagraph A:

"(A) REINFORCED FENCING.--In carrying out subsection (a), the Secretary of Homeland Security shall construct reinforced fencing along not less than 700 miles of the southwest border where fencing would be most practical and effective and provide for the installation of additional physical barriers, roads, lighting, cameras, and sensors to gain operational control of the southwest border."

Note the phrase "where fencing would be most practical and effective." Basically, DHS has an opt-out clause built in. But it gets worse. Page Two of the Hutchison amendment then states:

"(D) LIMITATION ON REQUIREMENTS.--Notwithstanding subparagraph (A), nothing in this paragraph shall require the Secretary of Homeland Security to install fencing, physical barriers, roads, lighting, cameras, and sensors in a particular location along an international border of the United States, if the Secretary determines that the use or placement of such resources is not the most appropriate means to achieve and maintain operational control over the international border at such location"

Just in case Subparagraph A was not clear enough, Hutchison added Subparagraph D to leave no room for doubt that this amendment is intended to make sure DHS is under no legal obligation to ever build any fence, never mind the 854 miles of double-layer fencing mandated by the Secure Fence Act of 2006. "Notwithstanding" means "in spite of." Thus, Subparagraph D says that in spite of anything stated in Subparagraph A, DHS is under no mandate to build the fence.

Major Border Fence Funding Battle NOW!
Hutchison's amendment was dropped from the DOD appropriations bill along with the $3 billion border security funding amendment. However, the Hutchinson Amendment was concurrently placed on both the DOD and DHS appropriations bills. Just as the Senate leaders promised, the Hutchinson amendment (S.AMDT 2466) is still kicking and it is alive and well on the DHS appropriations bill (H.R. 2638). Right now, the DHS bill is in Senate-House Conference. This bill must be finalized and signed into law before the end of this Congressional session. That means there is still opportunity for grassroots citizens to impact this issue and insist on a real funding bill that will fund the double-layer fence.

Specifically, Grassfire.org calling for an amendment (or amendments) to be added to the DHS appropriations bill to:
1) Fund the border security needs of our nation and fully fund the 854 miles of double-layer fence
2) Directly tie Border Security funding to the two-layer fence requirement of the Secure Fence Act.

Grassfire is mixing apples and oranges. They are mixing up the appropriations bill for Homeland Security which allocated money for fencing, but was rife with conditions and congressional oversite and required DHS to work with the locals etc with the Secure Fence Act, which after the Houise AND Senate amnedment processes reads EXACTLY like this:

H.R.6061

One Hundred Ninth Congress

of the

United States of America

AT THE SECOND SESSION

Begun and held at the City of Washington on Tuesday,

the third day of January, two thousand and six

An Act

To establish operational control over the international land and maritime borders of the United States.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Secure Fence Act of 2006’.

SEC. 2. ACHIEVING OPERATIONAL CONTROL ON THE BORDER.

(a) In General- Not later than 18 months after the date of the enactment of this Act, the Secretary of Homeland Security shall take all actions the Secretary determines necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States, to include the following—

(1) systematic surveillance of the international land and maritime borders of the United States through more effective use of personnel and technology, such as unmanned aerial vehicles, ground-based sensors, satellites, radar coverage, and cameras; and

(2) physical infrastructure enhancements to prevent unlawful entry by aliens into the United States and facilitate access to the international land and maritime borders by United States Customs and Border Protection, such as additional checkpoints, all weather access roads, and vehicle barriers.

(b) Operational Control Defined- In this section, the term `operational control’ means the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband.

(c) Report- Not later than one year after the date of the enactment of this Act and annually thereafter, the Secretary shall submit to Congress a report on the progress made toward achieving and maintaining operational control over the entire international land and maritime borders of the United States in accordance with this section.

SEC. 3. CONSTRUCTION OF FENCING AND SECURITY IMPROVEMENTS IN BORDER AREA FROM PACIFIC OCEAN TO GULF OF MEXICO.

Section 102(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104-208; 8 U.S.C. 1103 note) is amended—

(1) in the subsection heading by striking `Near San Diego, California’; and

(2) by amending paragraph (1) to read as follows:

`(1) SECURITY FEATURES-

`(A) REINFORCED FENCING- In carrying out subsection (a), the Secretary of Homeland Security shall provide for least 2 layers of reinforced fencing, the installation of additional physical barriers, roads, lighting, cameras, and sensors—

`(i) extending from 10 miles west of the Tecate, California, port of entry to 10 miles east of the Tecate, California, port of entry;

`(ii) extending from 10 miles west of the Calexico, California, port of entry to 5 miles east of the Douglas, Arizona, port of entry;

`(iii) extending from 5 miles west of the Columbus, New Mexico, port of entry to 10 miles east of El Paso, Texas;

`(iv) extending from 5 miles northwest of the Del Rio, Texas, port of entry to 5 miles southeast of the Eagle Pass, Texas, port of entry; and

`(v) extending 15 miles northwest of the Laredo, Texas, port of entry to the Brownsville, Texas, port of entry.

`(B) PRIORITY AREAS- With respect to the border described—

`(i) in subparagraph (A)(ii), the Secretary shall ensure that an interlocking surveillance camera system is installed along such area by May 30, 2007, and that fence construction is completed by May 30, 2008; and

`(ii) in subparagraph (A)(v), the Secretary shall ensure that fence construction from 15 miles northwest of the Laredo, Texas, port of entry to 15 southeast of the Laredo, Texas, port of entry is completed by December 31, 2008.

`(C) EXCEPTION- If the topography of a specific area has an elevation grade that exceeds 10 percent, the Secretary may use other means to secure such area, including the use of surveillance and barrier tools.’.

SEC. 4. NORTHERN BORDER STUDY.

(a) In General- The Secretary of Homeland Security shall conduct a study on the feasibility of a state of-the-art infrastructure security system along the northern international land and maritime border of the United States and shall include in the study—

(1) the necessity of implementing such a system;

(2) the feasibility of implementing such a system; and

(3) the economic impact implementing such a system will have along the northern border.

(b) Report- Not later than one year after the date of the enactment of this Act, the Secretary of Homeland Security shall submit to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a report that contains the results of the study conducted under subsection (a).

SEC. 5. EVALUATION AND REPORT RELATING TO CUSTOMS AUTHORITY TO STOP CERTAIN FLEEING VEHICLES.

(a) Evaluation- Not later than 30 days after the date of the enactment of this Act, the Secretary of Homeland Security shall—

(1) evaluate the authority of personnel of United States Customs and Border Protection to stop vehicles that enter the United States illegally and refuse to stop when ordered to do so by such personnel, compare such Customs authority with the authority of the Coast Guard to stop vessels under section 637 of title 14, United States Code, and make an assessment as to whether such Customs authority should be expanded;

(2) review the equipment and technology available to United States Customs and Border Protection personnel to stop vehicles described in paragraph (1) and make an assessment as to whether or not better equipment or technology is available or should be developed; and

(3) evaluate the training provided to United States Customs and Border Protection personnel to stop vehicles described in paragraph (1).

(b) Report- Not later than 60 days after the date of the enactment of this Act, the Secretary of Homeland Security shall submit to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a report that contains the results of the evaluation conducted under subsection (a).

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.

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