After Congress approves 700 miles of double border fence, Senate gives administration authority to use the money for whatever it wants

In their last week in Washington before returning home to campaign, Congress authorized construction of a 700-mile fence on the U.S.-Mexico border. Then lawmakers rushed to approve separate legislation that ensures it will never be built, at least not as it is described, say Republican leaders and immigration experts.

GOP lawmakers are pointing to the fence as one of the primary accomplishments of the recently completed session. Many of the lawmakers will highlight the $1.2 billion down payment on construction of the border fence as they campaign for reelection.

Just before they recessed, the House and Senate gave the Bush administration the flexibility to distribute the money to a combination of projects -- not just to the physical barrier along the southern border. The funds may now be spent on roads, technology and "tactical infrastructure" to support the Homeland Security Department's preferred option of a "virtual fence."

The loopholes leave the Bush administration with authority to decide where, when and how long a fence will be built, except for small stretches east of San Diego and in western Arizona. Homeland Security officials have proposed a fence half as long, lawmakers said.

In an last-minute attempt to win over some wavering Republicans, GOP congressional leaders pledged in writing that American Indian tribes, members of Congress, governors and local leaders would get a say in "the exact placement" of any fence structure, and that Homeland Security Secretary Michael Chertoff would have the flexibility to use alternatives "when fencing is ineffective or impractical."

President Bush signed the $34.8 billion homeland security budget bill in early October in Scottsdale, Ariz., without referring to the 700-mile barrier, instead, highlighting the $1.2 billion that Congress provided for an unspecified blend of fencing, vehicle barriers, lighting and technology such as ground-based radar, cameras and sensors. "That's what the people of this country want," the president said. "They want to know that we're modernizing the border so we can better secure the border."

Bush and Chertoff have said repeatedly that enforcement alone will not work and that they want some money spent elsewhere, such as on a temporary-worker program to ease pressure on the border. At an estimated $3 million to $10 million per mile, the double-layered barrier would cost considerably more than $1.2 billion.

Asked whether Homeland Security would build 700 miles of fence, department spokesman Russ Knocke would not say. Instead, he noted that department leaders announced last month that they will spend $67 million to test a remote-sensing "virtual fence" concept on a 28-mile, high-traffic stretch of border south of Tucson over eight months, and then adjust their plans.

"We plan to build a little and test a little. ... Stay tuned," Knocke said.

Rep. Duncan Hunter said "It's fine if . . . Homeland Security defines where that 700 miles is built, but it must be 700 miles," adding “The fence is not a recommendation. It's a mandate by Congress.”

Hunter had been a co-sponsor of the successful Secure Fence Act, which requires double-layered fencing, similar to that erected in the late 1990s along San Diego County's border with Tijuana, to be installed along huge swaths of California, Arizona, New Mexico and Texas.

Addressing the flexibility that Homeland Security will have in carrying out the legislation, Hunter said Congress intended no such wiggle room. “These people in the bureaucracy need to reminded that this is a mandate. It's fine if the secretary of Homeland Security defines where that 700 miles is built, but it must be 700 miles.”

Hunter gave reporters a copy of a letter he sent to Homeland Security chief Michael Chertoff to clarify the intent of the legislation, and said Chertoff would have discretion to leave limited areas, such as Arizona's Tohono O'odham reservation unfenced as long as major smuggling routes were secured.

"We do a lot of talking. We do a lot of legislating," said Sen. Jeff Sessions, the Alabama Republican who offered an amendment to fund the fence. The amendment was killed on a 71-29 vote. "The things we do often sound very good, but we never quite get there," Sessions said.

If his colleagues, he said, are serious about building the fence that they promised, they will find the funding.

"We will rightly be accused of not being serious about the commitments we've made to the American people with regard to actually enforcing the laws of immigration in America, which many Americans already believe we're not serious about," he said. "They don't respect what we've done in the past, and they should not. We have failed, and it's time for us to try to fix it and do better."

To prove his point, Sessions offered another amendment, to appropriate another $85.7 million to enable Homeland Security to hire 800 more full-time investigators to probe immigration-law violations. The amendment failed 66-34.

Sen. Judd Gregg, a New Hampshire Republican who historically has fought to increase border security and enforcement of federal immigration laws, was among those who opposed Session's amendment.

"We should build these walls; there's no question about it," he said. "But the real issue here is the offset that's being used, and the offset creates a Hobson's choice for almost everyone here."

Session's amendment would have required across-the-board cuts to the rest of the Homeland Security appropriations bill, Gregg said, which would mean cutting 750 new border-patrol agents and 1,200 new detention beds for illegal aliens that he included in the bill.

"We've attempted very hard to increase Border Patrol agents in this bill, increase detention beds," he said. "And, yes, we haven't funded the wall specifically as a result of our efforts to do these increases."