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Appendix II: Comments from the Department of State

Appendix II: 5-25-2010 Comments from the Department of State to GAO June 2010 report: PASSPORT ISSUANCE Current Situation Results in Thousands of Passports Issued to Registered Sex Offenders
What follows is the detail of the 3 page 2010 DOS Letter

Thank you for giving the Department of State the opportunity to comment on the draft report to the Senate Committee on Finance concerning the issuance of passports to persons registered as sex offenders.1 Please find our general comments and concerns set forth below. Our technical comments with requested changes to the text are provided separately.

We think the report is very misleading. Starting with the title, “Passports Issued to Thousands of Registered Sex Offenders,” we are concerned that it conveys more “shock value” than factual accuracy. The fact is that the State Department lacks legal authority to deny a passport to a registered sex offender and the title of the report should reflect this. Furthermore, of the over 16 million passport books and cards issued in 2008, less than 0.0003 percent were issued to registered sex offenders according to GAO estimates. Additionally, the title fails to reveal the very low percentage of passports that were issued to registered sex offenders in 2008 and the use of the word “thousands” without a reference point implies otherwise. Moreover, the title fails to convey that GAO found no lawful reasons for the Department to deny or revoke the passports of the case study sex offenders based on their status as sex offenders.

1 The Department provided data to the GAO on over 16 million individuals who were issued passports in calendar year 2008. Due to extremely sensitive personal data contained in our records and our responsibility for protecting American citizens’ privacy, the Department provided an extract of data which included the applicants’ Social Security numbers, the date the passports were issued and the first four letters of the applicants’ last names. The Department specified that this data be used by GAO only to identify (1) the passport recipients that might owe federal taxes and the magnitude of those taxes by comparing the passport data against the IRS tax delinquent data and (2) the passport recipients who might be sex offenders by comparing the passport data against the FBI sex offender data. To the extent that this report includes other information about passport applicants, it was not derived from Department of State records nor was Department data used to perform further analysis of the passport applicants. In agreeing to the provision of its passport data to the GAO, the Department understood that GAO on a limited basis intended to use the results of matching passport data to the IRS and FBI databases to perform further analysis, but would not use Department data to do so.
The title also fails to convey that GAO found no evidence that the offenders used their passports to commit sex offenses abroad. To be accurate and balanced, the title should read: “Existing U.S. Law Allows Passports to Be Issued to Registered Sex Offenders, Although GAO Found No Evidence That Sex Offenders Used Their Passports to Travel Abroad to Commit Sex Offenses.”

The Secretary of State has responsibility for issuing passports to U.S. nationals and may only deny an application for a passport if there is a legal basis for denial. The Department takes this responsibility very seriously. To that end, trained adjudicators review each passport application and supporting documentation extremely carefully to determine if the individual is entitled to a passport. In most cases, U.S. citizens are entitled to receive a passport regardless of the fact that they previously committed or were convicted of a crime.

The Department does have legal authority to deny passports in certain circumstances, including limited authority to deny in cases involving sex offenders. As noted in the draft report, Congress has already provided the Department authority to deny passports to individuals convicted of the crime of sex tourism involving minors and who used their passport or passport card or otherwise crossed an international border in committing an offense. The Department is currently working with the Department of Justice (DOJ) to implement this legislation. The Department also has authority to deny passports to individuals for whom an order of probation or parole as been entered by a court forbidding departure from the United States. When such orders are entered for sex offenders, the Department has authority to deny their passports on that basis.

To be accurate and fair, the draft report should make clear that GAO found no evidence that the Department failed to exercise its authority to deny a passport to any sex offender identified in this study. It should also include data relevant to this issue, such as the number of convictions by DOJ in fiscal year 2008 under the relevant sex tourism statute, and the number of those convicted who already had valid passports at the time they committed these crimes. The case studies themselves could explain whether there is any evidence that the passport could have been denied based on a sex tourism conviction, whether the criminal courts failed to enter orders of probation/parole for the applicants forbidding departure from the United States, or whether such orders had expired prior to passport issuance.2

2 The case studies themselves provide particularly graphic details which we think are irrelevant and tend to sensationalize the report, such as details about the age and sex of the victims.
The report appears to suggest, without any foundation, that the Department’s issuance of passports to certain Americans facilitated their commission of sex offenses abroad. There are no facts in the report which show that any of the thirty individuals included in the case studies used his passport to travel to a foreign country to commit a sex crime. Rather, it appears that most (if not all) the individuals included in the case studies committed sex crimes either within their own state or after traveling to a neighboring state. There also is no evidence connecting the sex offender to sex crimes overseas following their convictions.

Moreover, there is no logical connection between the Department’s issuance of passports and the case studies involving travel to Mexico. First, there is little factual data in the report (beyond mere hearsay) that supports the conclusion that any of the sex offenders in the case studies actually moved to Mexico. But even if they did, the report fails to explain that a passport was (and is) not necessary for U.S. citizens to enter Mexico, and was not required to enter the United States from Mexico via the land border until June 1, 2009.

Ultimately, the Department would want to study any legislative proposal to prohibit issuance of passports to sex offenders beyond our existing authorities. As noted above, we currently have limited authority to deny passports to certain sex offenders. To the extent that this report is prepared for those considering such legislation, the report should provide a more detailed discussion of the FBI’s sex offender data and the limitations that data provides generally and with respect to this study. The Department’s understanding is that such data is derived from individual state reporting and that there may be concerns, even by the Department of Justice, with respect to its accuracy. Each state may choose which offenses to report on, and report on a range of sex offenses. The nature of those offenses, e.g., the elements and penalties, and the reporting requirements differ from state to state. Moreover, as we understand it, the GAO only ran State Department passport data against the social security numbers included in the database and did not attempt to determine which offenses or which range of sex offenses the matched individuals committed. Data on the nature of the offenses committed by the matched individuals could be useful in determining whether legislation is needed.

Including such detail suggests the Department knew or should have known of these details at the time the passport was issued and should have taken some action to prevent issuance of the passport. We are also concerned that the only two case studies highlighted prominently on the first page of the report that describe the sex of both the offender and the victim are descriptions of crimes involving two people of the same sex. The descriptions of the sodomy of a male child and a search for “boy lovers” abroad could be construed to suggest the report has an anti-gay bias. We strongly recommend that GAO revisit its decision to highlight these case studies.

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