[Senate Hearing 106-848]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 106-848




                               before the

                       AND GOVERNMENT INFORMATION

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             SECOND SESSION




                             JUNE 28, 2000


                          Serial No. J-106-95


         Printed for the use of the Committee on the Judiciary


69-488                     WASHINGTON : 2001

                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina       PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania          JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona                     HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri              RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan            ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama               CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire

             Manus Cooney, Chief Counsel and Staff Director

                 Bruce A. Cohen, Minority Chief Counsel


   Subcommittee on Technology, Terrorism, and Government Information

                       JON KYL, Arizona, Chairman

ORRIN G. HATCH, Utah                 DIANNE FEINSTEIN, California
CHARLES E. GRASSLEY, Iowa            JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin

                     Stephen Higgins, Chief Counsel

        Neil Quinter, Minority Chief Counsel and Staff Director


                            C O N T E N T S




Kyl, Hon. Jon, U.S. Senator from the State of Arizona............     1
Feinstein, Hon. Dianne, U.S. Senator from the State of California     3


Statement of L. Paul Bremer III, chairman, National Commission on 
  Terrorism, New York, NY; accompanied by R. James Woolsey, Shea 
  and Gardner, Washington, DC, and member, National Commission on 
  Terrorism; Jane Harman, Harman International, Los Angeles, CA, 
  and member, National Commission on Terrorism; John F. Lewis, 
  Jr., director, Global Security, Goldman, Sachs and Company, New 
  York, NY, and member, National Commission on Terrorism; and 
  Juliette N. Kayyem, associate, Belfer Center for Science and 
  International Affairs, John F. Kennedy School of Government, 
  Harvard University, Cambridge, MA, and member, National 
  Commission on Terrorism........................................     5


Bremer III, L. Paul:
    Testimony....................................................     5
    Prepared statement...........................................    29

                 Additional Submissions for the Record

Prepared statement of Alexander Philon...........................    35
Letter from Juliette Kayyem, Harvard University, John F. Kennedy 
  School of Government to Senator Kyl, dated June 27, 2000.......    36



                        WEDNESDAY, JUNE 28, 2000

                               U.S. Senate,
             Subcommittee on Technology, Terrorism,
                        and Government Information,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2:11 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Jon Kyl 
(chairman of the subcommittee) presiding.
    Also present: Senators Grassley and Feinstein.

                        STATE OF ARIZONA

    Senator Kyl. The subcommittee will please come to order. 
Let me first welcome everyone to this hearing of the 
Subcommittee on Technology, Terrorism, and Government 
Information. Today, we are going to be discussing the report 
entitled ``Countering the Changing Threat of International 
Terrorism,'' recently published by the congressionally-mandated 
National Commission on Terrorism.
    America is entering a new national security era. During the 
cold war, we faced the threat of a massive nuclear attack and 
massive conventional attack across Europe from the Soviet 
Union. Since the end of the cold war, however, the threats 
facing the United States have become much more complex. Perhaps 
the most problematic is the threat of terrorist attack against 
our homeland and our citizens abroad.
    And the face of terrorism itself has changed significantly 
over the last quarter of a century. The Soviet bloc, which once 
supported terrorist groups, no longer exists. While some states 
like Iran continue to support terrorist groups, other groups 
like the terrorists financed and led by Saudi millionaire Osama 
bin Laden are not state-sponsored. These groups have varying 
motives and are more difficult to track and deter.
    These new terrorist groups have demonstrated the desire and 
capability to reach large portions of the globe. Bin Laden was 
responsible for the bombing of two U.S. embassies in Africa, 
and according to press reports, U.S. intelligence agencies 
discovered and thwarted his plans to attack other U.S. 
embassies and a military base in Saudi Arabia.
    Furthermore, a growing share of terrorist attacks are 
intended to kill as many people as possible. As the Commission 
pointed out in its report, the World Trade Center bombing 
killed 6 and injured about 1,000 people. But the terrorists' 
goal was to topple the twin towers, killing tens of thousands 
of people.
    More recently, terrorists have expressed growing interest 
in more lethal means, including chemical, biological, and 
nuclear weapons. For example, the Japanese cult Aum Shinrikyo, 
which carried out a sarin nerve gas attack in the Tokyo subway, 
could have killed thousands.
    Also, according to another congressionally-mandated 
advisory panel on weapons of mass destruction terrorism, 
chaired by Virginia Governor Gilmore, the cult also attempted, 
and failed on at least nine occasions, to disseminate 
biological agents such as anthrax.
    So the threat is real. In the fact of this threat, Congress 
mandated this National Commission on Terrorism to address 
America's capacity to prevent and respond to the threat. To 
their credit, the bipartisan Commission was not shy about 
delving into the thorny issues surrounding counterterrorism 
    For example, should our intelligence agencies recruit 
unsavory people to gather information on terrorists in order to 
thwart their attacks? Should information currently collected on 
foreign students in the United States be consolidated into a 
national data bank? Should we revise the guidelines for 
monitoring Americans under statutes like the Foreign 
Intelligence Surveillance Act? Should we include allies like 
Greece on a list of nations seen as not fully cooperating with 
counterterrorism efforts? And should we empower the Defense 
Department to lead response efforts to extraordinary terrorist 
incidents, like a biological weapons attack in the United 
    We have 5 of the 10 members of the Commission here today to 
present the group's findings, expound on their discussions, 
clarify any misunderstandings, and recommend legislative action 
to increase our ability to protect the American people from 
terrorist attack.
    We are pleased to be joined by the chairman of the 
Commission, Ambassador Paul Bremer, who served 23 years in the 
diplomatic service, including 3 years as Ambassador at Large 
for counter-
terrorism. The vice chairman of the Commission was Maurice 
Sonnenberg, a member of the President's Foreign Intelligence 
Advisory Board. He was invited to testify here today, but was 
unable to attend.
    In addition to the chair, we are joined today by four other 
distinguished Commission members: former Congresswoman Jane 
Harman, who served on the House Intelligence and Armed Services 
Committees; John Lewis, former Assistant Director of the 
National Security Division of the FBI; James Woolsey, former 
Director of the Central Intelligence Agency; and Juliette 
Kayyem, who previously served as a legal adviser to the U.S. 
Attorney General at the Department of Justice.
    Before we hear from our witnesses, I would like to turn to 
Senator Feinstein for her opening remarks.

                      STATE OF CALIFORNIA

    Senator Feinstein. Thanks very much, Mr. Chairman. I don't 
want to be redundant. I thought your opening statement was 
excellent and has really outlined much of the concern.
    I would like to congratulate the people that worked on this 
report. I think the report rightly emphasizes that terrorists 
today are a different breed than they were 20 or 30 years ago. 
In the 1970's and 1980's, they wanted attention. Today, they 
simply want to kill as many people as possible. In the 1970's 
and 1980's, terrorists often had concrete political goals. 
Today, they operate out of religious belief or apocalyptic 
vision, out of hate for certain groups, the United States or 
the West. They are often without fear of losing their own life.
    In the 1970's and 1980's, much terrorism was state-
sponsored. Today, terrorists are often transnationalist, and 
even self-funded. You mentioned Osama bin Laden. He has moved 
between several adopted countries, and has a fortune estimated 
in the hundreds of millions of dollars. Aum Shinrikyo, the 
Japanese group you mentioned, Mr. Chairman, has spent tens of 
millions of dollars preparing chemical and biological attacks. 
In addition, terrorists disperse themselves even further, 
hiding in cells in multiple jurisdictions, stockpiling their 
supplies and waiting to strike. We know that we have many such 
cells in our own country.
    The film ``The Battle of Algiers'' nicely encapsulates just 
how much things have changed. As that movie shows, the French 
were able to break the FLN terrorist network in Algiers in the 
1950's because the paratroopers could literally diagram it on a 
blackboard. But, today, some countries, and Greece is one that 
comes to mind, cannot diagram their terrorist groups on a 
blackboard. Since 1975, only 1 of 146 terrorist attacks against 
Americans or American interests in Greece has been solved. And 
just this past weekend, we read about Jihad in the New York 
Times which really described how states-sponsored schools can 
begin the training that a youngster would need to become part 
of this kind of movement.
    The result of all of this is that now more than ever we 
need to take what actions we can to combat terrorism. In fact, 
as the number of world states increase, ethnic, religious, 
political, and economic discord will heighten, and terrorism 
will only become more noteworthy.
    We have taken a number of steps already. For example, the 
1994 Crime bill increased sentences for international 
terrorism, extended the statute of limitations for terrorist 
offenses, extended criminal jurisdiction to attacks against 
citizens on foreign vessels, attacked foreign counterfeiting of 
U.S. currency, and prohibited the provision of material support 
to terrorists.
    Nowadays, many terrorists penetrate nongovernmental 
organizations or companies to gain access to money, logistical 
networks, and cover. So we need to make better use of the 
Office of Foreign Assets Control at Treasury, the IRS, and 
Customs to track and analyze data regarding terrorist 
fundraising, and to stop funding and logistical support for 
terrorists. As we well know, many terrorist groups have a 
charitable arm and a terrorist arm, and they raise money under 
the charitable arm and then they transfer that money into the 
terrorist arm.
    The Antiterrorism and Effective Death Penalty Act of 1996 
required the addition of chemical taggants to plastic 
explosives to make them more traceable, strengthened controls 
of and enforcement against biological agents and pathogens, 
facilitated the removal of alien terrorists, expanded the 
Government's ability to exclude from the U.S. aliens who were 
involved in terrorist activities, and denied asylum to alien 
terrorists and streamlined the deportation process for criminal 
    I authored legislation in 1996 that would prohibit military 
sales to countries that do not cooperate with U.S. 
antiterrorism efforts. Thus, I was quite interested in the 
Commission's recommendation that the President should make more 
use of his power to punish states that are not cooperating 
fully by embargoing defense sales to these countries or 
imposing other sanctions. A weaker version of my amendment was 
sponsored by Senator McCain and passed as part of the 1997 
Foreign Operations Appropriations bill.
    I think we have got a great deal left to do. I also think 
that this is very difficult because it is an atraditional 
battle. As some of the more controversial recommendations of 
the Commission suggest, you have got to counter atraditional 
actions with atraditional reactions, and that is where, for a 
democratic society, things become very dicey.
    So I look forward to hearing from the Commission and then 
being able to ask questions about some of their 
    Senator Kyl. Thank you, Senator Feinstein.
    Senator Grassley, we are delighted to have you join us. I 
know of your interest in this subject and appreciate your being 
here with us today.
    Senator Grassley. I don't have any opening statement. I was 
just wondering, would I be able to ask questions by 3 o'clock, 
or won't that be possible?
    Senator Kyl. I think the witnesses are going to try to be 
as quick as they can because I think Senator Harman has to 
leave roughly in that timeframe, too, and we would like to give 
her an opportunity to both speak and answer any questions.
    Senator Feinstein. You promoted her to the Senate.
    Ms. Harman. Thank you very much for that.
    Senator Kyl. Did I say ``Senator Harman?''
    Senator Feinstein. Both seats from her State are already 
filled. [Laughter.]
    Senator Kyl. Well, I am really torn, Madam Vice Chairman, 
because what you say is certainly true, but I wouldn't want 
that to be considered as a Freudian slip. But I did serve with 
Representative Harman and we worked on a lot of things 
together, and I have one question in particular that relates to 
something we worked on. We will get that later.
    Mr. Bremer.



    Mr. Bremer. Mr. Chairman, thank you for the opportunity to 
be with you today. If I may, I would like to ask that my full 
statement be entered for the record.
    Senator Kyl. All statements will be entered into the 
record, and might I also enter into the record, without 
objection, a statement by Alexander Philon, the Ambassador of 
Greece, who wished to have his country's policy with regard to 
terrorism recorded in the record of the hearing, and another 
statement which was submitted on June 27 by Juliette Kayyem, 
Commissioner of the National Commission on Terrorism, a copy of 
which I believe you also have, Senator Feinstein.
    Senator Feinstein. Thank you.
    Senator Kyl. Without objection, they will be entered in the 
    [The prepared statement of Mr. Philon and the letter of Ms. 
Kayyem are located in the appendix.]
    Mr. Bremer. I will try to briefly summarize our findings, 
Mr. Chairman, in the interests of time. Both of you have 
rightly pointed out the key finding, which is that the threat 
of terrorism is changing. It really is the theme of our entire 
report. The threat is changing.
    We have seen the World Trade Center attack. We saw the 
attacks on our embassies in East Africa. These are conventional 
attacks. The thing that concerned many of us on the Commission 
is what if terrorists escalate to nonconventional attacks using 
biological, chemical, or nuclear radiological weapons. And that 
could cause casualties not in the hundreds or the thousands, 
but even in the tens of thousands.
    A lot of our concern, Mr. Chairman, flowed from the view 
that this was not unimaginable. Five of the seven states which 
the State Department designates as states sponsoring terrorism 
are, we know, already developing their own programs in those 
areas, and so this is a real concern.
    The first major finding concerned the critical importance 
of intelligence to this fight. We have made a number of 
recommendations in that field. I will just briefly summarize a 
couple of them and, of course, we are prepared to answer 
    We found that in many areas the Federal Government is 
stymied by bureaucratic and cultural obstacles to the quick and 
broad collection of important intelligence. In the area of the 
CIA, we felt that some guidelines that have been in place for 
the last 5 years, whatever their intention, have had the effect 
of making it less likely that we will get the right kind of 
people providing the right kind of information about 
    What do I mean by that? Well, if you are going to prevent a 
terrorist attack, you have to know what their plans are, and to 
know what their plans are you essentially have to have somebody 
inside the group talking to you. In other words, you have to 
have a spy who is also a terrorist. And we believe that the CIA 
agents in the field ought to be able to use the same kind of 
discretion which municipal police departments and law 
enforcement departments all over this country do to use 
informants to get prosecutions, in effect, but in this case to 
get prevention of terrorist attacks.
    We looked at the guidelines under which the FBI field 
agents operate in the United States, and there is a difference, 
Mr. Chairman. We thought the guidelines are adequate in their 
scope, but they are unclear in how they are written, and we 
recommended that they be made clearer. We have all looked at 
them. There are more than 40 pages worth of guidelines there, 
and I must say I was as confused reading them as some of the 
agents whose testimony we heard.
    Another problem that you touched on briefly and directly is 
the overly cautious approach by the Office of Intelligence 
Policy and Review in the Department of Justice in considering 
applications for wiretaps against domestically-based 
international terrorists. The Commission came to the same 
conclusion that the Department of Justice's own internal 
investigation came to in the Wen Ho Lee case, which is that the 
Office of Intelligence Policy and Review takes a too-
conservative approach, asking for more information than is, in 
fact, required by the statute, the Foreign Intelligence 
Surveillance Act.
    Mr. Chairman, one question you raised in your opening 
statement leads me to make a clarification. We did not in our 
report anywhere call for changing the guidelines on the FISA 
applications. I just want to be sure that that is clear. There 
was an implication in one of the sentences you read as a 
question that some people might think that is something we 
recommended. That is not what we recommended. We recommended 
that the Attorney General instruct the OIPR office to ask for 
nothing more than the probable cause standard that is already 
in the existing statute. We do not recommend a change in the 
    We believe there are important resource needs in the 
collection of intelligence. The FBI is trying to establish a 
technical support center, which we would encourage members of 
the subcommittee to give favorable consideration to. It is 
particularly important as terrorists now use advanced means of 
encryption and communication that we not be behind. We also 
recommended more resources for CIA and NSA.
    As Senator Feinstein pointed out, as the decline of state 
support for terrorism occurs, terrorists are looking elsewhere 
for funding, and we made recommendations that the Government 
should take a much broader approach to attacking terrorist 
fundraising, in particular using offices such as the one she 
mentioned, the Office of Foreign Asset Control at Treasury and 
the IRS, and take basically a broad view.
    Finally, Mr. Chairman, we made some recommendations 
relating to the possibility of catastrophic terrorism. Some 
people have been critical of us for not defining catastrophic 
terrorism. I have said in testimony we are talking about not 
hundreds or thousands, but tens of thousands of casualties. In 
our view--and I would say this is an important conclusion based 
on our discussions--we have to worry about the possibility that 
this could happen in the United States.
    Indeed, I was interested to read yesterday that the FBI has 
reported a dramatic increase in the number of threats of using 
such agents in the United States in the last 4 years. In 1996, 
there were 37 such threats. Last year, there were over 250. 
Fortunately, these were basically hoaxes, most of them about 
the use of anthrax. But the fact of the matter is we can't 
ignore the possibility.
    We therefore thought it was important for several things to 
happen. First, the Government should be clear--and this is a 
responsibility of the executive branch--what authorities it has 
and what authorities it lacks in the event of dealing with a 
catastrophic terrorist attack, and we suggested the President 
should make such an inventory.
    Second--and this is a point that has been much 
misunderstood--we believe that if you had a catastrophic 
attack, it is possible that under extraordinary circumstances 
that catastrophe could go beyond the capabilities of local, 
State, and Federal agencies, or it might even be part of an 
armed conflict, an ongoing armed conflict. And in such cases, 
the President of the United States might want to consider 
designating the Department of Defense as the lead agency for 
responding to such a catastrophe.
    We are not recommending marshal law, we are not 
recommending that this happen automatically. What we are saying 
is, particularly if you are concerned about preserving civil 
liberties--and every one of the people sitting in front of you 
is--it is very important to think through that kind of 
catastrophe beforehand rather than trying to figure out what to 
do in the hysterical aftermath.
    The example I give, Mr. Chairman, is what happened after 
Pearl Harbor, when two great American liberals, Franklin Delano 
Roosevelt and Earl Warren, locked up Japanese Americans in the 
hysteria following that catastrophic military attack. And we 
don't want that to happen again and we think the best way to 
avoid having civil liberties trampled on is to have thought 
through what would have to happen in the wake of a catastrophic 
terrorist attack.
    We also recommended in this area, Mr. Chairman, that 
controls should be tightened on biological agents and equipment 
that would be needed to turn biological agents into real 
weapons. This is an area where Congress would have to take the 
lead because it would require some legislation. We have made 
specific recommendations in our report which I won't go into in 
    Mr. Chairman, I think you have before you the report of 10 
Americans from both parties, from different backgrounds. We 
think it is a balanced report. We think that we have made 
prudent suggestions. We didn't mince words, as you pointed out. 
We let the facts drive us to our conclusions. We reached in all 
cases but one a complete consensus on these recommendations, 
and we think if these recommendations are followed by Congress 
and the executive branch, Americans will be safer, and that is 
the bottom line of what we were after.
    Thank you.
    Senator Kyl. Well, thank you very much. I know the other 
Commission members have been willing to let the chairman speak 
initially on behalf of the entire Commission. Is there anything 
that any of you would like to add at this point, recognizing 
that since the initial release of the report and the flurry of 
testimony and news conferences--incidentally, your first news 
conference I thought was one of the best news conferences I 
have ever seen in explanation of something like this.
    There has also been response from a variety of quarters, 
and I see this hearing today at least potentially as an 
opportunity for you all to reply to some of that response, as 
well. I would also note that I specifically sought out a couple 
of organizations that I knew had expressed some concerns--the 
ACLU, which I had also asked to testify before and they had 
declined to testify at our hearing before on privacy 
implications of the national plan for protection against cyber 
attack, but I invited them again in any event.
    Also, the American Arab Anti-Discrimination Committee. I 
asked them if they would be willing to submit some questions 
which I would ask on their behalf. They did, and I will. I 
offer that same opportunity to others if they have specific 
concerns. But I see to some extent today's hearing as an 
opportunity for you all to clarify, and also to then help us 
understand where you think we go from here.
    Because Senator Grassley has asked for the opportunity to 
be sure to be able to ask some questions, let me yield, Senator 
Grassley, to you at this point if you are ready.
    Senator Grassley. Do you want Congresswoman Harman----
    Senator Kyl. Well, I think any questions that we want to 
pose to her, we should do fairly early on, and I do intend to 
do that.
    Senator Grassley. I didn't have specific questions of her, 
but I do have--the first instance I want to bring up would be a 
request for some information to back up a position you have 
    On page 8 of the report, you argue that the 1995 process 
for recruiting informants is too strict. And you say this: 
``Recruiting informants is not tantamount to condoning prior 
crimes, nor does it imply support for crimes they may yet 
commit.'' To me, this is getting a little bit into dangerous 
territory. Let me explain.
    We have had too many cases where law enforcement not only 
condoned crimes of informants, but actually facilitated them. 
So this sounds a little bit like we are going back to the 
Whitey Bolger era of informants. I would like to see what 
concrete evidence your Commission has on which to base your 
statement that because of the stricter enforcement process, 
agent morale is down and a significant number of officers have 
retired or resigned. I hope you could provide that material to 
the committee. Could you, please?
    Mr. Bremer. I can answer it right now. We took testimony 
from a large number of serving and retired field agents, both 
in Washington and in the field. I think it is fair to say I 
certainly never heard among all of those witnesses anything but 
the view that these guidelines had restricted and had reduced 
the recruitment of terrorist informants. I never heard a 
contrary view, and I don't think anybody else on the Commission 
did. I mean, the testimony was absolutely clear, convincing, 
and consistent.
    Senator Grassley. Well, these were taped and recorded 
    Mr. Bremer. No, they weren't.
    Senator Grassley. Notes taken?
    Mr. Bremer. In some cases, notes were taken. In most cases, 
they were not.
    Senator Grassley. Then I guess I would want to see the 
    Mr. Bremer. I would have to consider that question, 
    Senator Grassley. OK.
    Mr. Bremer. Most of the people who spoke to us, because of 
the sensitive nature of this issue, spoke to us on the 
understanding that they would not be cited.
    Senator Kyl. Might I just interpose, would it be possible 
perhaps to have a private conversation with the chairman to 
describe in more detail the type of individual, the number, and 
perhaps some further identification, just for the benefit of--
    Senator Grassley. Well, I want to follow up some way.
    Mr. Bremer. I would be happy to do that. I would be happy 
to do that, Senator.
    Senator Kyl. It is a good question.
    Mr. Bremer. We are in a very difficult situation in terms 
of the--you can appreciate, I think, Senator, with your long 
experience in this town that this is not an easy subject to 
talk to serving officers about, or for them to talk to us 
about. I should put it that way.
    Mr. Woolsey. Senator Grassley, could I perhaps add one 
point on this?
    Senator Grassley. Yes, please do.
    Mr. Woolsey. It doesn't appear in the report, but it is 
something that I have long felt and I think is important in 
this context.
    Throughout the cold war, the United States recruited 
successfully a large number of what I would call good people 
working inside bad governments. A substantial share, for 
example, of the Soviet agents that the CIA was able to recruit 
over the years were genuine Russian democrats, anticommunists, 
people who, even though they were GRU colonels or KGB generals, 
hated their system and worked for us because they were decent 
    That happens with some frequency inside bad governments. It 
is one of the great strengths of American intelligence around 
the world that we are--we and the British and one or two other 
countries tend to be places where a good person trapped inside 
a bad government will go in order to try to help defeat 
communism or fascism or whatever his government's 
characteristics are.
    And I think one can have a reasonable point of view that 
because of that phenomenon, when one is dealing with spying on 
governments, one may well want to consider balancing and not 
necessarily recruiting or using readily, let's say, as an 
informant some of the types of individuals, for example, that 
in the Guatemalan military gave rise to the concerns which 
Senator, then Congressman, Torricelli articulated and which in 
turn gave rise to my successor, John Deutch, implementing these 
1995 guidelines.
    But when one is talking about spying on terrorist 
organizations, if you are inside Hizbollah, it is because you 
want to be a terrorist. You don't have for all practical 
purposes this phenomenon of good people inside bad 
organizations. If you want to get information about what a 
Hizbollah is doing, you have to recruit a terrorist, the same 
way that if the FBI wants to recruit someone inside the Mafia 
to inform on John Gotti, they are going to end up with someone 
like Sammy ``the bull'' Gravano, who killed 19 people and still 
was given his freedom in exchange for testifying against Gotti.
    Working against terrorist organizations is much more like 
the FBI working against criminal organizations than it is like 
working against other governments. So this Commission's 
responsibility was solely in the area of terrorism, and I 
believe that in that area it is quite reasonable to suggest, as 
we did, that the Government not use these 1995 guidelines which 
require a balancing between the nature of the act that the 
individual may have committed before and the information he 
might provide, but rather go back to the CIA's traditional 
method of so-called vetting of agents and to require its 
officers, and in appropriate cases with scrutiny from Langley, 
an assessment of the likelihood that the individual is going to 
give real intelligence, real information.
    Is he credible? Does he have access? Even if he is a bad 
person in some other ways, is he likely to be telling you the 
truth? That is the balancing that we thought ought to occur in 
the context of terrorist organizations. So this should not be 
read as a general rejection of the 1995 guidelines. Different 
ones of us have different views on those. But with respect to 
terrorism only, which is all the further our writ ran, we felt, 
all of us, that it required a recognition really up front that 
working against a terrorist organization routinely requires the 
recruitment of people who have done some very bad things as 
    Ms. Harman. Senator, could I just add one more word to 
that? This was probably the most contentious among us of the 
recommendations in the report. We spent many, many hours, and 
there was a range of views in our own Commission. On the one 
hand, some wanted to rescind the guidelines. On the other hand, 
some wanted just to clarify the guidelines. We came out in the 
    We do not rescind the guidelines, and we make very clear 
also on page 8 that the balancing test, as Jim Woolsey has just 
described it, will apply to the recruitment of any terrorist 
assets. We are not talking about eliminating a balance, and we 
are very, very well aware of how complicated it is to do this 
well. But we felt we had no alternative if the goal is to find 
out in advance about the activities of these very dangerous 
terrorist groups around the world.
    Senator Grassley. Before I ask Ms. Kayyem another question, 
I think I would accept the chairman's suggestion, particularly 
if the chairman and/or Senator Feinstein would be interested in 
following up with me. I think I would like to have your 
interest as well.
    But also my reaction to Mr. Woolsey is that it sounds a 
little Machiavellian, what you tell me is the goal. And maybe 
in this world it has to be, I don't know. I guess I don't know 
because I wouldn't draw the conclusion that you are right, but 
I accept your statement with sincerity, in a sense, that the 
end justifies the means in this instance.
    But let's just assume that if you do have to hire bad 
people because you are involved with bad organizations, I don't 
know whether that goes so far as in the one instance I referred 
to that our Government would help, or at least know about their 
commission of crimes as well; that we would go that far and be 
that far involved with them.
    Mr. Woolsey. Senator, if it is a crime under American law--
and killing an American in an act of terrorism overseas is a 
violation of American law--there is a separate set of rules 
that also comes into play and which we did not address and made 
no recommendation on. That set of rules deals with something 
called crimes reporting.
    What that says is that if someone who is to be recruited as 
a spy by the CIA overseas may have violated a U.S. Federal law, 
then prior to that individual being recruited, there has to be 
a notification of the Department of Justice and the Justice 
Department has to give a declination letter to decline to 
prosecute before that person may be recruited.
    Now, there is criticism of this also among case officers 
overseas. This would mean, for example, if there is a Swiss 
businessman who knows a good deal about smuggling precursor 
chemicals to the Mideast that might be used in chemical 
weapons, and 20 years before there is some evidence that he may 
have been involved in insider trading when he was in the United 
States, before the CIA officer could recruit that businessman 
as a source regarding proliferation of chemical weapons, he 
would have to go to the Justice Department or have the CIA go 
to the Justice Department and get a declination letter saying 
we are not going to prosecute this fellow for insider trading 
20 years ago.
    So, that check which some people believe is excessive 
nonetheless exists, and that is an independent check on what 
case officers may do. What we are talking about in our 
recommendation is not crimes under American law, but rather 
acts by an individual in a foreign country that may violate 
that foreign country's law and may be a very bad thing, robbing 
someone, killing them. It is the acts of an individual that 
don't violate U.S. law that are the subject of this 
    Senator Grassley. I will go to Ms. Kayyem on another point, 
and this comes from my Subcommittee on Administrative Oversight 
and the Courts and the Wen Ho Lee investigation we have, and 
then Senator Specter proposing legislation to amend the Foreign 
Intelligence Surveillance Act. And if Senator Biden were here, 
I would be glad to compliment him on his authorship of that 
legislation in the first instance and the bipartisan support 
for the amendment that Senator Specter has proposed.
    On page 10 of your report the Commission states, ``The 
Department of Justice applies the statute governing electronic 
surveillance and physical searches of international terrorists 
in a cumbersome and overly cautious manner.'' One of the 
recommendations of your panel stated, ``The Attorney General 
should substantially expand the Office of Intelligence Policy 
and Review staff and direct it to cooperate with the FBI.''
    I notice that you did not concur with the content of this 
section, and since this is a current issue before the Senate 
and we are considering this legislation regarding FISA, I would 
like to have you elaborate why you did not concur with the 
Commission's recommendations.
    Ms. Kayyem. I submitted a letter to the committee, as well, 
that elaborates further. But let me first state where we do 
agree, where all the commissioners agree. Everyone agrees that 
at least the constitutional standard of reasonableness applies 
in FISA, and certainly the statutory probable cause standard 
applies. So we are not questioning that. I actually agree in 
the first recommendation that you quoted. If necessary, the 
OIPR attorneys--there may need to be more, and there should be 
greater cooperation between the FBI and OIPR.
    My concern with the Commission's recommendation had less to 
do with the specific language of the recommendation--certainly, 
no one wants Government to work in a cumbersome manner, 
especially regarding terrorism--but the suggestion in the 
write-up to the recommendations, and I lay this out in the 
letter, regarding what would constitute membership in a foreign 
terrorist organization.
    As I lay out in the letter, membership is a very difficult 
thing with terrorist organizations. Most of them don't keep 
membership lists. We all know that, and when we are talking 
about foreign intelligence surveillance, we are talking about 
one of the more invasive types of surveillance--secret wiretaps 
against Americans--but in the case the Commission was talking 
about, non-Americans as well.
    It was my concern in the write-up leading to the 
recommendations that the standard regarding what would 
constitute membership or mere membership was, at least by the 
Commission--the suggestion that a mere showing by the FBI of 
membership, I thought, probably wouldn't satisfy either the 
statutory or the constitutional standards.
    The OIPR was created by Congress to ask the tough questions 
of the FBI. Do you have probable cause to go forward in this 
case? And it is going to have to ask tough questions about what 
does membership mean. Was someone at a meeting? Were they 
reading literature? Were they giving money? I think that those 
questions have to be made.
    If the process is cumbersome, it may be cumbersome because 
we need more people in OIPR, but I don't think it is cumbersome 
because OIPR is asking the wrong questions. I think the 
evidence in terms of the numbers before the FISA court and the 
great confidence that the FISA court has in the OIPR attorneys 
that they are bringing forward cases that are legitimate is 
proof that there is good cooperation. And if there is sort of a 
turf battle between the FBI and OIPR, maybe the way to solve 
that is through more people.
    Finally, on the Wen Ho Lee case and the Department of 
Justice recommendation, I have been reading letters, Senator 
Grassley, that you sent to Senator Specter. There are a lot of 
lessons to learn from the Wen Ho Lee case, as we know, and one 
of them was not only that possibly the OIPR were cautious, but 
also at the initial stages before things heated up, the FBI 
admitted to at least itself in internal documents that it 
probably didn't have the case. And until all the evidence comes 
out on Wen Ho Lee, I think that we should reserve judgment 
specifically on that case.
    Senator Grassley. Just quickly, I was going to read a long 
quote from your report, Ambassador Bremer. It is on page 12, 
but the bottom line of it is when it comes to offering to buy 
insurance for agents, why should the FBI and the CIA be singled 
out for this benefit when there are a lot of other men and 
women in Federal law enforcement putting their lives on the 
line everyday investigating not only terrorists but other 
criminals? And I am particularly concerned about the State 
Department Diplomatic Security Service not being recommended 
for the same thing.
    Mr. Bremer. Well, I am sure we would all agree with you, 
Senator. I don't think there is any argument. We just happened 
to focus on the two which were brought to our attention because 
they are the two mostly on the front line. I think any public 
servant who puts his or her life on the line certainly in the 
fight against terrorism ought to have this benefit. I speak for 
myself, but I am sure I speak for the whole Commission.
    Senator Grassley. Thank you.
    Senator Kyl. Thank you very much, Senator Grassley, and we 
will pursue the other matters.
    Senator Grassley. I appreciate your letting me go first.
    Senator Kyl. You are very welcome, and I ordinarily would 
call on Senator Feinstein next, but she has kindly allowed me 
to ask one quick question of Jane Harman before you have to 
    As you may know, Senator Mack and Senator Lautenberg have 
introduced the frozen terrorists asset bill, which I 
cosponsored. The bill would allow victims of terrorism to be 
compensated from assets of the state-sponsors of terrorism that 
are frozen in the United States that have won court cases 
against sponsors of terrorism.
    For example, Steve Flato's 20-year-old daughter Alissa was 
killed when a Palestinian suicide bomber attacked a bus in the 
Gaza Strip in 1995. Mr. Flato won a court judgment against 
Iran, but the administration has not allowed him to receive the 
    Do you believe that this legislation would aid ultimately 
in our efforts to fight terrorism?
    Ms. Harman. You bet, and our chairman just commented to me 
that a frozen terrorist is the best kind of terrorist. 
    Senator Kyl. One whose assets are frozen and can be 
obtained is certainly the right kind.
    Ms. Harman. Mr. Chairman, could I just say a few things 
    Senator Kyl. Absolutely.
    Ms. Harman. First of all, I want to observe that over the 
many years I have known you, it has been an absolute pleasure 
to work with you, first, in the House and then between the 
House and the Senate--work with you and your staff on issues 
like this and on technology transfer. It is always impressive 
to see how thoroughly prepared you are and the way you work in 
a bipartisan fashion with people like my senior Senator, 
Senator Feinstein, who I think sets the gold standard for 
Senators. So I really want to say for the record, as somebody 
who has perhaps more knowledge than most of how this thing 
works, what a great asset you are.
    Senator Kyl. Thank you.
    Ms. Harman. On the subject of frozen assets, not frozen 
terrorists, you and I worked together a great deal on ways to 
stop the flow of technology and people from places that may be 
questionable to places that are truly dangerous, where they 
work on or become part of the arms race against us and our 
allies or missiles targeted at our ally, Israel, or in this 
case part of the reach of some of these terrorist 
organizations. We have to use the tools available to us. We 
have to enforce legislation on the books, and there is good 
legislation. Obviously, we need to do more to make more happen.
    But in this report--as I think you know, Senator, it was 
one of the things the chairman did not highlight today--we call 
for no further concessions to Iran. The reason we do that is 
that we believe that Iran continues to have a hardline foreign 
policy. Its domestic leadership may be improving, and that is 
wonderful for the Iranian people. But we saw no evidence, and I 
don't believe there is any evidence that its missile 
production, its harboring of terrorists, and its threat to us 
and our allies is decreasing. So for that reason, we continue 
to call for a hardline policy against Iran in the interest of 
protecting Americans.
    A final point on bipartisanship. Another thing that is in 
our report at the end is a call for bipartisanship by Congress 
in dealing with this issue of terrorism. We call for additional 
staff on the appropriations committees--I know Senator 
Feinstein is a member of the Senate Appropriations Committee--
so that we could review as a whole--you are, too, Senator Kyl--
we could review as a whole the counterterrorism budget and make 
sure that things like better technology for our surveillance 
agencies are fully funded.
    I thank you for giving me the opportunity to speak early, 
and I just want to tell you again what an honor it has been to 
serve with this excellent Commission under the chairmanship of 
Jerry Bremer. Thank you.
    Senator Kyl. Thank you very, very much. Clearly, this is a 
nonpartisan issue. There is nobody who is better at it than my 
vice chairman, Senator Feinstein, as you noted, and we have 
worked very closely together.
    I would also note before you leave that Senator Schumer and 
I are going to be sending a letter around which specifically 
recommends against granting any additional concessions, for 
example, on food sales or things of that sort to Iran until we 
see definite evidence of Iranian foreswearing of terrorism. 
Thank you very much.
    If I could, before I call on Senator Feinstein, did the 
Commission make any specific recommendations for dealing with 
Iran? I know that the report notes that despite the election of 
Katami, on page 20 the report says there are indications of 
Iranian involvement in the 1996 Khobar Towers bombing in Saudi 
Arabia, et cetera. In October 1999, President Clinton 
officially requested cooperation from Iran in the 
investigation. Thus far, Iran has not responded. I just 
wondered if there were any recommendations specifically with 
respect to Iran.
    Mr. Bremer. There are really two; a general one, which is 
that the U.S. Government should make no further concessions 
toward Iran until it actually does stop supporting terrorism, 
and then a rather specific one relating to Khobar.
    We have a disagreement with a lot of our allies about how 
to approach Iran. They have different objectives than we do. 
They see the thing differently than we do, but we ought to be 
able to persuade them that on the question of criminal acts 
like the attack which killed 19 American soldiers in Khobar, 
everybody ought to be able to say to the guilty party--and 
there is some evidence that it is some people in Iran--you have 
to cooperate on a legal basis. Put aside the politics of it.
    This doesn't affect the position the U.S. Government took 
on Pan Am 103 vis-a-vis Libya, where we had the same 
disagreements with our allies, but where we were able to 
persuade the allies, even if they didn't like the politics of 
it, that on a legal basis it was important to insist on Libyan 
cooperation with the investigation into Pan Am 103.
    Our recommendation is the administration should take the 
same approach vis-a-vis the Khobar Towers. They should say to 
the allies, even though you may not agree with the politics of 
our approach toward Iran, you should be willing to say this is 
a criminal act and Iran should be forced to comply with the 
request to cooperate in the investigation.
    We think the Administration took the first correct step, 
which was the President to write a letter directly confronting 
the Iranians. The Iranians have never answered the letter. We 
think the Administration should push further now both directly 
on the Iranians, but more importantly through our friendly 
countries to say this is a legal question. Those are the two 
recommendations on Iran, Mr. Chairman.
    Senator Kyl. Thank you.
    Let me call on Senator Feinstein.
    Senator Feinstein. Thank you, Mr. Chairman.
    Jim Reynolds, the Chief of the Terrorism and Violent Crime 
Unit at the Department of Justice, recently testified on your 
DOD recommendation, which he thought was unnecessary. He noted 
that a number of statutes exist permitting the use of the 
military under extreme situations, including statutes that 
permit the military to be used for consequence management and 
technical assistance. In all cases, though, the military would 
be under the leadership of the FBI and FEMA.
    Did the Commission examine these statutes before making 
your recommendation?
    Mr. Bremer. Yes, we did, Senator. We started with the Posse 
Comitatus Act of 1874, went down through--I have got a whole 
list of them here--the Insurrection and Civil Disturbances Act, 
et cetera, et cetera.
    Senator Feinstein. Talk a little bit about how you came to 
that recommendation?
    Mr. Bremer. Well, first of all, we are not, as I said in my 
opening statement, making any general recommendation as to what 
should happen. We are saying it is possible to conceive of--and 
certainly all of us could conceive of it, and if you can't 
conceive of it, it seems to me people are not using their 
imagination--an attack where you have tens of thousands of 
casualties which quickly go past the capability of State and 
local and Federal agencies to cope with--the FBI, FEMA, or 
whoever is trying to cope.
    In circumstances like that, there will be enormous public 
pressure for the President to take action and to use what is at 
hand. And the tool which is at hand with the best 
communications, logistics, and command and control is the U.S. 
military. It could be under Federalized National Guard; there 
could be a lot of ways. The Federalized National Guard has been 
used for a lot of things in the last 40 years, including 
patrolling the borders. I mean, there are lots of uses of the 
military that, in fact, are not consistent with Posse 
    Posse Comitatus doesn't say it is not allowed. It simply 
says, ``except in cases and under circumstances authorized by 
the Constitution or by Act of Congress.'' And a number of Acts 
of Congress have, in fact, allowed the military to be used. 
Even in law enforcement, there are a number of Acts of 
Congress. That wasn't what we were after.
    What we were after was how do you protect civil liberties. 
How do you assure that in the aftermath of a biological attack 
at Chicago O'Hare Airport, where you have tens of thousands of 
people down, many of them dead, people getting on planes to go 
somewhere else, hysteria beginning, attention in the press, 
huge pressures on whoever is in the White House to do something 
now--how do you assure that what he or she does is consistent 
with civil liberties and also saves lives? So our starting 
point was to say this is the kind of thing which is not 
unimaginable and which ought to be thought through ahead of 
    I do not agree with Mr. Reynolds. I respect him greatly. He 
testified several times before our Commission. I just think he 
is wrong. I think he is not being very imaginative.
    Ms. Kayyem. Senator Feinstein, could I----
    Senator Feinstein. Please.
    Ms. Kayyem. Certainly, as a legal matter, at least the 
insurrection statutes as part of the Constitution--if the 
pressure is on the President to do something, I don't think 
there is any question as a legal matter that the Department of 
Defense could take the lead role.
    Given that that is the case, my concern certainly is the 
last thing you want to do is to, for want of a better verb, 
unleash the Department of Defense and the military in civilian 
society and not have any idea what that is going to look like.
    Even after the most recent Posse Comitatus exceptions in 
the late 1990's were put in place for nuclear and biological, 
the Department of Defense was told to plan and prepare for the 
possibility during a nuclear attack. From what we know, or at 
least testimony that we heard, that still has not happened or 
it is stuck somewhere in the Department of Defense or the 
Department of Justice.
    The last thing that anyone would want is to have the law 
applied and permit the Department of Defense to be utilized in 
a lead agency role--I mean, certainly there would still be 
civilian leadership; no one is talking about marshal law--and 
now know what that is going to look like. Let people see what 
that is going to look like.
    My concern certainly is bad things that can happen. I will 
be honest with you. Imagine if the attack is a foreign 
terrorist attack and imagine that it came from a place with an 
ethnic identity. I think the pressures would be extremely 
strong to maybe possibly violate people's rights just based on 
where they are. We saw it happen after Pearl Harbor. If the 
event occurred from a terrorist from Latin America or the 
Middle East, I think the pressures would be exceptionally 
strong. I think we need to think about it now and know that 
actions like that are unlawful.
    Senator Feinstein. I think you have both raised a very good 
point. If you think of an attack on that broad scale, you 
wonder who else, besides the Department of Defense, would 
actually be equipped to handle it.
    I would like to ask a question of Mr. Woolsey, if I might. 
I want to just talk for a minute about the 1995 Deutch 
guidelines. Apparently, the CIA responded to your report that 
the 1995 guidelines work fine and that CIA headquarters has 
never turned down a case officer who has ever wanted to recruit 
a terrorist.
    Is that true?
    Mr. Woolsey. I believe that is, in essence, what they said, 
yes, Senator Feinstein. Although I have a high regard for the 
current Director and for the organization that I used to head, 
I don't think the response was on point. We are quite willing 
to accept their statement that they haven't turned down any 
requests, but that is not the issue. The issue is how many 
requests get made.
    What these guidelines do with respect to terrorist 
organizations is, as the chairman said, and the Commission was 
also told by a number of current and past intelligence 
officers--what they do is add a deterrent to submitting the 
request in the first place because of the time that is required 
and because one, in a sense, as a young case officer out in the 
field, has to be saying, ``Well, I think this person that I am 
about to recruit or that I want to recruit''--the information 
outweighs this terrible thing they may have been involved in 10 
years ago.
    And so there is a deterrent that operates in such a way as 
to get people not wanting to seem to stand behind prior bad 
acts by their potential recruit or not to want to be criticized 
or not want to have to become an object of special attention by 
their bosses. All of those sort of subtle incentives in the 
bureaucracy can, and we heard that they do keep people from 
submitting requests.
    So the issue is not, of the 5 or 10 or whatever it is 
requests that have been submitted, have all of them been 
approved. We are quite willing to recognize that that is the 
case, assuming that that is what the CIA's records indicate. 
The question is how many requests get made. Are we deterring 
case officers from making these requests?
    And I think if the FBI had similar guidelines to these in 
terms of recruiting informants inside the Mafia, we would not 
have seen the very extraordinary progress that we have seen 
over the course of the last decade or two in undermining the 
power of many of the organized crime families in the United 
    I think you have to give your people out in the field some 
authority and responsibility, and this seemed to us to be too 
great a deterrent. It implicitly says that what we really want 
you folks to do out there is, as much as you can, when you are 
spying on terrorist groups, recruit nice people as spies. And 
if you recruit mainly nice people as spies in, say, Beirut, you 
will have a pretty good idea of what is going on in the 
churches and the chamber of commerce, and so forth. But you 
don't want to know that. You want to know what is going on 
inside Hizbollah.
    Senator Feinstein. If I can, let me just follow this up for 
a second. It is my understanding that Mr. Deutch adopted these 
guidelines in part because the House and Senate Intelligence 
Committees were never informed of the recruitment of 
individuals who had murdered Americans or engaged in torture 
before or after they were on the CIA payroll. So that raises 
the question, I think, of whether the United States should go 
back to that kind of situation.
    Mr. Woolsey. Well, there are two separate issues here. One 
is if someone in many circumstances kills an American 
overseas--this is not true of all, but in the case such as the 
one that was described--that is also a violation of American 
law. And as I mentioned in response to Senator Grassley's 
question, if there is evidence of some violation of American 
law, that request to recruit that individual that may have so 
violated American law has to go to the Justice Department as a 
crimes report, quite apart from anything we talked about. We 
didn't deal with this issue. The Justice Department has to give 
a declination letter, a waiver, essentially, that it is all 
right to recruit that individual.
    And as I also mentioned in response to Senator Grassley, I 
think a reasonable case can be made, and reasonable people can 
be on both sides of this argument, that one ought to be very 
cautious about recruiting people inside governments that have 
committed, let's say, human rights violations in the past, as 
was allegedly the case with the Guatemalan military officer 
involved, because one has other alternatives in getting 
information from governments.
    You can recruit spies, as I mentioned, good people trapped 
inside bad governments, and you can have intelligence liaison 
relationships in which you exchange information and you learn 
things. It may not be necessary to recruit brutal people and 
pay them money inside foreign governments in order to obtain 
    The problem is that inside terrorist organizations, there 
isn't anybody there unless they want to be a terrorist. So if 
you are going to get inside information, it is going to 
virtually always have to be from somebody who has participated 
in or been involved in some type of terrorist activity in the 
past. And so in dealing with terrorist organizations, we felt 
that those guidelines should not be observed. And we took no 
position on the guidelines with respect to the types of 
recruitments that had given rise to the business about Colonel 
Alpirez and Jennifer Harberry and Bamako and all of that back 
in 1995 which led to John Deutch issuing the guidelines.
    Senator Feinstein. Thank you.
    Senator Kyl. You have mentioned the John Gotti case, and I 
think Sammy ``the bull'' was out in Arizona. They spent a lot 
of money putting him up.
    Mr. Woolsey. He went bad again.
    Senator Kyl. But other people wouldn't have been put away.
    Senator Feinstein. That is right.
    Senator Kyl. And he allegedly killed people, so you have 
that kind of a situation. And I was going to ask Mr. Lewis to 
respond to that, but I have another question for him, too.
    Let me ask some of the questions that were submitted by the 
American Arab Anti-Discrimination Committee because, again, I 
would like for this hearing to be, among other things, an 
opportunity to reply to some criticism. And I think there have 
been some good questions raised.
    One of the questions that I was asked to ask, and I am 
happy to do so, has to do with recommendation on tracking of 
foreign students. The question is how would tracking foreign 
students according to a student's field of study or change of 
major help the United States anticipate and thwart a potential 
terrorist attack? What is the significance of a student 
changing a major from, for example, English literature to 
nuclear physics, and how is a student's area of academic 
interest relevant to efforts to combat international terrorism?
    I might ask that, first of all, of Mr. Lewis, but anybody 
else who has expertise.
    Mr. Bremer. Let me answer that first because I am probably 
the only person at the table who spent quite a bit of his life 
issuing student visas, so I have seen this from the front to 
the back.
    Senator Kyl. OK.
    Mr. Bremer. Let me first of all say that any student who 
applies for a visa to the United States has for 3\1/2\ decades 
had to specify his or her major in the application form.
    If you are a student applying for a visa from a state which 
is designated as a state-sponsor, of which there are currently 
seven, there are special visa waiver procedures which are in 
placed called SAO's, special advisory opinions, which must be 
sought by the consular officer before he can issue the visa.
    In the case of some of those countries, if the major is a 
major on something which the INS calls a critical subjects 
list--and things on a critical subjects list are things like 
nuclear physics, biochemistry, and so forth, things like that--
you may not issue the visa; that is to say, it is in the law as 
it stands now.
    Since that is well known, a person coming from one of those 
states--and, incidentally, very often people coming from those 
states are sponsored by their government. The only case is 
Libya, where for many years by law the Libyan government has 
not been allowed to send money for students.
    Somebody coming from those states could therefore apply for 
a visa using a different major, and when he or she switched 
majors after coming here, they would be in violation of their 
visa status. In fact, that is a violation of the law to change 
your major in some cases. So the precise, specific answer is 
that it would be a violation of their visa status for some 
students to change their major.
    So that is a very precise answer, but I am going to let Mr. 
Lewis give you a more general answer.
    Senator Kyl. And one of the recommendations was that this 
information be computerized so that it would be easier to 
    Mr. Bremer. Well, of all of the things this Commission has 
said, this has been the most comprehensively misreported and 
misunderstood recommendation of all. Let me first of all say it 
is, in our view, not a very important recommendation among our 
mendations. It doesn't even deal in any important sense with 
the problem of border security.
    Every single day, Mr. Chairman, 1.5 million people legally 
cross American borders--1.5 million people, many of them in the 
Senator's State, legally. So we are talking here about 
something on the order of 250,000 student visas issued every 
year. It is a very minor number compared to 1.5 million 
everyday, something like 500 million a year.
    The Commission felt that we have a major border security 
problem in this country. It goes way beyond terrorism; it has a 
lot of other implications. It was such a big issue, with only 6 
months for us to study terrorism, we basically said we can't 
solve this problem in 6 months. And we recommended Congress or 
another commission or somebody take a real look at this.
    We did come across this one program that is in place, and 
has been in place since 1965. And it is in response to a law 
which you passed in 1996 that the INS has set up this pilot 
project to monitor students, and what they are monitoring is 
essentially the same things that have been monitored since 1965 
when I started issuing student visas, nothing more, nothing 
less, except we are doing it on a computer now instead of in 
shoe boxes. But if I could ever get anybody to understand that, 
I would consider that I had achieved my goal.
    Senator Kyl. This hearing hopefully will help to do that.
    Mr. Bremer. I hope so, Senator.
    Senator Kyl. I think that your answer helps to put it in 
    Mr. Lewis. Well, quite frankly, the chairman has stated it 
very well. The only thing that I might add is from the FBI's 
standpoint, we cite as an example in the report the issue of 
the student that dropped out and was involved in the World 
Trade Center bombing.
    What we are looking for is just some information of what is 
the status of particular students, and we are going back to 
this 1996 pilot program. That is all we are asking for. Again, 
this has been widely misunderstood.
    Ms. Kayyem. If I could follow up, right before this hearing 
I actually met with a group of Muslim leaders and I asked them, 
what is the problem here, why is it this one--and Ambassador 
Bremer is right--of all the recommendations, because certainly 
the law has been there for a long time. I think that there is a 
concern, and probably a legitimate concern, that it is not so 
much this law, but how it is going to be applied in practice.
    Certainly, you have all heard from the Arab and Muslim 
community that objective laws can be applied in a 
discriminatory fashion. Speeding laws can be applied in a 
discriminatory fashion if the only people pulled over are 
African-Americans. We know that. And I think that those 
concerns are legitimate. I think that they should be heard as 
the INS and this Senate vote on extending it nationwide. I 
think the INS has to be forever vigilant on that.
    Terrorism has an identity in America and it tends to be 
Muslim or Middle Eastern, and I think it is important that we 
hear those concerns and complaints and that we respect that 
that is actually the concern at hand. It is not so much the 
law; it is the potential of this law. This is not a law that 
the INS is going to collect information and then give it to 
anyone who asks, so that every student--you know, we are going 
to know what they ate or if they are on a home study program. 
It is an immigration law, but I think that those concerns we 
need to respect and are valid if we learn that this law is 
being applied in a discriminatory fashion.
    Senator Kyl. Let me just ask this question. Does somebody 
then ostensibly monitor the information not only to determine 
whether the technical immigration law might have been violated 
when, let's say--and let's take a hypothetical country so that 
we are not stepping on any toes, but an individual sponsored by 
that country changes from dance and music to nuclear physics, 
maybe doesn't even report it, but information comes to the 
attention of Immigration which validates that change.
    Now, somebody in INS may decide that that is a technical 
violation of the law and therefore we are going to revoke the 
student visa, if that is the appropriate remedy. But is it 
anticipated here that there would be an additional step because 
of the potential, at least the idea here being that that could 
be an activity involving espionage or terrorism of some kind, 
and that that information would be turned over to a law 
enforcement agency like the FBI?
    Mr. Lewis.
    Mr. Lewis. No, to answer it shortly. It is INS' call on 
something like that, and if there is any indication on the part 
of the INS official involved that a possibility of some 
clandestine activity or something that goes beyond just the 
change of status, then, yes, very well it could be, or the FBI 
would be alerted. Now, that doesn't happen in all instances and 
that is a judgment call on the part of the INS.
    Senator Kyl. So there would have to be something in 
    Mr. Lewis. Something dire, something really different and 
noticeable, but this is not routinely done.
    Senator Kyl. OK.
    Mr. Lewis. We would like to have known about the World 
Trade Center. See, he changed his status. He was no longer a 
student, but just stayed here. Now, that should be reported.
    Senator Kyl. But even that fact would not ordinarily alert 
a law enforcement agency to a potential problem, would it?
    Mr. Lewis. No, not necessarily.
    Senator Kyl. It would be a violation. I mean, there are a 
lot of people who get here on a visa of one kind or another and 
then just end up staying illegally.
    Mr. Lewis. Right, yes, Senator.
    Mr. Bremer. That is why we make no pretenses that this is a 
very important recommendation to deal with the much broader 
problem of border security.
    Senator Kyl. But it does deal in one way with security, and 
that is whether or not the individual may have some involvement 
in terrorism. At least there is a remedy for removal from the 
country for the technical violation of law.
    Mr. Bremer. Right, that is right.
    Senator Kyl. Might I ask just one more of these questions 
and then I will turn back to you, Senator Feinstein?
    I think this is a good one to clarify as well. On February 
4, 1999, FBI Director Louis Freeh testified before the Senate 
Appropriations Subcommittee on Commerce, State and Justice, and 
told the subcommittee that since the World Trade Center bombing 
of 1993, ``no single act of foreign-directed terrorism has 
occurred on American soil.''
    The Commission report states that, ``Today, international 
terrorists attack us on our own soil,'' and cites the arrest of 
Ahmed Ressam at the Canadian border in December 1999 as 
evidence. The citation I have for that is page 1. I am not 
certain of that.
    However, given that Director Freeh confirms that there have 
been no incidents of international terrorism in U.S. territory 
in many years, and that Mr. Ressam was arrested at the border, 
the question asks, isn't it reasonable to conclude that current 
security measures are proving effective in protecting Americans 
on American soil?
    Mr. Bremer. What is left out of that, by necessity, is 
testimony from the Director of the number of attempts which 
have been thwarted, and we heard testimony that that number is 
in the several dozen just in the last 5 years alone, including 
some where there was the possibility of the use of weapons of 
mass destruction.
    What is enough security? How do you find the balance 
between respect for civil liberties, which we all feel very 
strongly about, and providing security for Americans? You can 
always say, since it didn't happen, it won't happen, and 
therefore we don't have to do anything. I think the burden of 
our report is that the threat is changing enough that we need 
to take further prudential steps to meet it, including steps 
involving, for example, resources for the FBI. And I think all 
of us stand by that. We are not comforted by the fact that the 
FBI has been effective in the past in thwarting these attacks. 
We want them to continue to be effective.
    Senator Kyl. I might say that, before this subcommittee, 
the FBI Director, Louis Freeh, has said that each year for the 
last several years--he hasn't been specific--that about roughly 
a dozen terrorist attacks are thwarted.
    Mr. Bremer. Right.
    Senator Kyl. And I think he may have even qualified that 
saying ``major terrorist attacks.'' I don't remember.
    Mr. Bremer. We certainly heard numbers in the several 
    Senator Kyl. OK.
    Mr. Bremer. And it is the case that the Ressam arrest was 
largely luck and very good instincts on the part of a very 
smart border guard who spooked the guy.
    Senator Kyl. So the statement in the report--and I have not 
compared this question to the report itself, but the quotation 
is, ``Today, international terrorists attack us on our own 
soil.'' Do you remember writing that, and would you want to 
qualify that in any way?
    Mr. Bremer. No; you could say ``attempt to attack us,'' but 
they did attack us. They attacked us at the World Trade Center.
    Senator Kyl. OK; well, he was saying since then.
    Mr. Bremer. And they tried to attack us at the Millennium. 
That was thwarted.
    Senator Kyl. OK, great.
    Senator Feinstein.
    Senator Feinstein. I don't know whether it was Mr. Bremer 
or Mr. Woolsey, but the comments on probable cause for a 
wiretap under FISA--I didn't quite understand what you were 
saying. You said that the Department demands evidence beyond 
what was required in the law. Could you be more explicit?
    Mr. Woolsey. Just a couple of points, one that Ms. Kayyem 
spoke to. We noted that, for example, OIPR sometimes requires 
specific knowledge of a terrorist practice rather than merely 
being a member of a terrorist organization. And I think this is 
a legitimate argument which the Commission took one view on and 
Ms. Kayyem stated her view. I think that is a reasonable 
disagreement between reasonable people.
    The one that stuck most in my mind was the fact that, 
typically, OIPR doesn't generally consider past activities of a 
surveillance target in determining whether a FISA probable 
cause test is met. And it strikes me that in an area such as 
terrorism, past behavior is something that is quite reasonably 
considered. And, again, in none of these cases were we 
recommending that the FISA statute be changed, nor were we 
recommending that the judges exercise different standards than 
what they do.
    What seems to have occurred from time to time is that OIPR 
has not let through requests that might well have been 
successful before the FISA court. The fact that in all of the 
FISA court's existence it has only--and you can get two 
different views of this--it has either never turned down a 
request or perhaps has turned down one, suggests that the prior 
screening that is going on at the OIPR may be a bit too 
    My wife says that if you don't miss an airplane once in a 
while, you are spending too much time in airports, and people 
differ on that, but the point is a reasonable one. It is that 
if you always show up 2 hours ahead of every flight, you are 
never going to miss a flight, but most people try to make 
judgments a bit more balanced than that.
    In these cases, I think what one should read between the 
lines of this portion of the report is that most of the 
commissioners felt that OIPR was not permitting some requests 
to get to the court which would meet the statutory standards 
and would normally be approved by the court.
    Senator Feinstein. Are you saying, under present practice, 
let's say if Osama bin Laden were in the United States, there 
would not be just de facto probable cause to wiretap him?
    Mr. Woolsey. Well, he is sufficiently famous; he might get 
through most any screen.
    Senator Feinstein. He is a known terrorist. I just used 
that because it was extreme.
    Mr. Woolsey. If one could not consider membership in an 
organization and if one could not consider past behavior, then 
at least I suppose theoretically he might not get through the 
OIPR screen. As a practical matter, I am sure OIPR would 
approve a request to wiretap Osama bin Laden.
    Mr. Bremer. Commissioner Lewis has the most experience of 
any of us in this area.
    Senator Feinstein. Right.
    Mr. Lewis. Senator, obviously this is one of those issues 
that I feel very strongly about, and I have to state right up 
front that I strongly disagree with my esteemed colleague here 
on my right. The FISA statute clearly sets out the standard for 
probable cause. Membership alone is spelled out if you are a 
non-U.S. person.
    What the OIPR attorneys do--and I have the utmost respect 
for them--they are always doing what they think is correct and 
I believe is wrong, is the simple fact that they always are 
looking for quantity. They are substituting their judgment for 
the judgment that the Congress has set out in the statute. 
That, in effect, is what happens. The statute requires A and B. 
OIPR wants A, B, C, and D.
    Now, we say maybe one has been turned down. Well, the fact 
of the matter is most of them never get there. Much like the 
request to become an asset of the CIA abroad, you are not going 
to get the request because they are stymied down below, and 
that is what happens on a routine basis.
    Senator Feinstein. Thank you. That is helpful.
    Mr. Bremer. I just want to underline one point, Senator. 
Commissioner Woolsey said it, but I want to say it again. We in 
no way are suggesting a change in the probable cause standard 
that is in the statute. That is not our recommendation.
    Senator Feinstein. You are just saying observe the statute.
    Mr. Bremer. And Ms. Kayyem understands that.
    Ms. Kayyem. Yes.
    Mr. Bremer. There is no disagreement. We are not doing 
    Ms. Kayyem. And on the past acts issue, we didn't raise it 
as a Commission. I mean, we know that there is legislation that 
you all are addressing, and I actually think it would be 
relevant. I think if Osama bin Laden shows up, although we 
didn't address it as a Commission, I think that that would be 
in some instances very legitimate. This really just came down 
to a basic question, as Mr. Woolsey said, about membership in 
organizations that it is very hard to find out about 
    Mr. Woolsey. I think that is a reasonable point.
    Senator Feinstein. That concludes my questions. Thank you, 
Mr. Chairman.
    Senator Kyl. We may have a whole series of votes here in a 
minute, and so as soon as that starts, we will probably have to 
conclude the hearing. There may be some other questions that 
occur to us that we would want to submit to you and I would 
like to have the opportunity to do that, but we have just a 
couple more minutes, if I could take some additional time.
    One of the things that I have become persuaded of since I 
have been active in the Federal Government here is that the 
United States generally, and our allies, place a lot of 
reliance on international agreements. And then after the press 
conferences and signing ceremonies and hoopla and reading the 
next morning's headlines, the international agreements are 
essentially forgotten because they are very difficult to 
enforce, usually.
    Frequently, there are overriding concerns. Our allies have 
certainly made this clear with respect to some of these 
terrorist countries. They have got trade, for heaven's sake. 
Why would they want to enforce an agreement? We have got to 
make a buck.
    Now, in view of that, one of your recommendations endorsed 
the International Convention for the Suppression of the 
Financing of Terrorism as a tool to internationally affect the 
fundraising of terrorist groups, certainly a laudable goal. The 
Convention calls for each signing party to enact domestic 
legislation to criminalize fundraising for terrorism and 
provide for the seizure and forfeiture of funds intended to 
support terrorism. I think it was Senator Feinstein a moment 
ago who noted the fact that a lot of organizations, under the 
guise of charitable purposes, raise a lot of money. And who 
knows where that money eventually goes?
    Given the failure of the international community to enforce 
other multilateral agreements, why do you think that this would 
be such an effective tool in affecting the financing of 
terrorist organizations?
    Mr. Bremer. Well, Senator, I don't think we think this is 
the greatest thing since smoked bacon in terms of fighting 
fundraising. I think, in the end, most of the fight against 
terrorism is not going to be multilateral; it is going to be 
unilateral and bilateral. Most of it is going to take place 
behind closed doors in liaison with law enforcement agencies, 
treasury departments in this case, people who have 
organizations like the Office of Foreign Asset Control.
    We by no means, want to suggest that just putting this 
Convention into effect will be a silver bullet. It won't be. It 
may help gradually in the process that started in the early 
1970's, in effect, of essentially saying it is not OK to be a 
terrorist. I think there are now 12 U.N. treaties that have 
been signed affecting terrorism, starting with the hijacking 
treaties in 1970 and coming all the way forward. You could say 
about each of them more or less what you have said about this 
one, that by itself, well, it is sort of marginal.
    On the other hand, what it does do is it creates a 
political climate abroad in the world that says it is not OK 
anymore to be a terrorist. And I think one of the reasons you 
are seeing less overt state support for terrorism in the 1990's 
is that during the 1970's and 1980's, we did manage to 
criminalize terrorism in the eyes of a lot of people. We 
delegitimized it.
    We should be very modest in our expectation of this 
Convention and the one on cyber terrorism, which I know you are 
particularly interested in, Mr. Chairman, which we also 
endorsed. They are modest steps. They are better than nothing, 
as long as they don't lead you to believe you have solved the 
    Senator Kyl. Right, and this is one that I find it hard to 
see what harm it could do.
    Mr. Bremer. Exactly.
    Senator Kyl. There are others that can do harm, among other 
things, because of what you just pointed out. I just wondered 
if I was missing something there.
    I think I asked this question at, was it the Intelligence 
Committee hearing that we had? And I believe I asked the panel 
how do you get at this problem of differentiating between 
legitimate fundraising and that which ends up supporting 
terrorism. I believe that the answer at the time was, really 
hard to do, but again you have got to try to work at it. Is 
there anything to add to that?
    Mr. Bremer. I don't think we have gotten any smarter in the 
intervening 2 weeks, Senator.
    Senator Kyl. Well, could you characterize how big you think 
the problem is? That might be helpful for us.
    Mr. Bremer. I am all for going after terrorist funding, but 
one of the problems is it is a pretty cheap crime. I mean, you 
don't need a lot of money really in the long run to be an 
effective terrorist.
    Senator Kyl. I remember this was another part of your 
answer before.
    Mr. Bremer. You need an AK-47, a couple of clips, and, you 
know, arrive at an airport. On the other hand, when you have 
people like Osama bin Laden, who is reputed to have hundreds of 
millions of dollars stashed away in various places, and who is 
now sort of self-financing, my colleague Jim Woolsey points out 
that we don't have the problem of terrorists supporting states 
now. We have--what do you call it?
    Mr. Woolsey. The other way around. We have terrorists 
supporting states.
    Mr. Bremer. Terrorists supporting states, not states 
supporting terrorists, yes. It makes a lot of sense to see if 
you can figure out where his money is. And, of course, there 
has been a lot of progress in tracking funds in the narcotics 
field and now in the sort of money laundering field. There is a 
lot of knowledge out there in the world among bankers and 
governments. And we certainly ought to go at it, but we 
shouldn't think that it is going to be easy.
    Senator Kyl. Perhaps my last question. Going back to the 
subject that has come up--and it was the first question Senator 
Grassley asked and it has come up several times during our 
hearing here, and that has to do with the FISA approach. We 
understand you are not recommending a change in guidelines. We 
understand that there is at least one different point of view 
with respect to one element of that, and your letter, in 
addition to your testimony, will be a part of the record.
    As I understand it, the Commission has said that the 
practice of the Justice Department is to require specific 
knowledge of wrongdoing or specific knowledge of the group's 
terrorist intentions, in addition to the person's membership in 
the terrorist organization, before forwarding an application 
for a FISA court for a search or surveillance. Is that correct 
so far?
    Mr. Bremer. Correct.
    Senator Kyl. I gather that the distinction between a 
terrorist organization and the group's terrorist intentions is 
meant to apply to the difference between the general and the 
specific. In other words, even though you know that Hizbollah, 
for example, is a terrorist organization, and Mr. Jones here is 
somebody that you want to surveil because of his membership in 
that organization, the effect of the Justice Department policy 
here is to say we need either knowledge of his wrongdoing or 
specific knowledge of the intentions of Hizbollah to engage in 
a particular kind of terrorist act, or an intention to engage 
in terrorism, beyond its general reputation.
    Do I understand that correctly?
    Mr. Lewis. Yes, but when you talk about that, there is a 
difference between a U.S. person and a non-U.S. person. What 
you are looking for is any kind of clandestine activity, 
something that goes beyond the mere membership. That is what 
you need for a U.S. person to show that there is something more 
here. But going back to a non-U.S. person, membership alone is 
sufficient if it fits the statute.
    Senator Kyl. And the Commission's view, with one dissent, 
would apply the recommending in what way?
    Mr. Lewis. We are recommending as a Commission, with one 
dissension, that OIPR follow the statute, what the statute 
specifically says for FISA's, nothing more than that. There is 
no change in anything, just OIPR's interpretation. That is what 
we are recommending, again, going back to quantity over 
quality--A, B, C, D, et cetera.
    Senator Kyl. And the effect of that in this particular 
situation would be not to require specific knowledge of the 
group's terrorist intention. Is that correct?
    Mr. Woolsey. If they are non-U.S. persons.
    Senator Kyl. If they are non-U.S. persons.
    Ms. Kayyem.
    Ms. Kayyem. You read that recommendation alone and it seems 
quite unobjectionable, and I bet you the OIPR attorneys would 
agree with it, that they ask for nothing more. It is really a 
question of interpretation about both the statute, because I 
disagree with Mr. Lewis on the interpretation of the statute, 
but also the kinds of questions you want the lawyers to ask 
regarding when was this person a member, the nature of their 
involvement. I think that these are really hard questions.
    I respect the Commission's viewpoint on this difficult 
issue of terrorism, but when it comes to both the statutory 
and, of course, the constitutional standards, I think OIPR has 
shown itself to be very successful in these cases.
    Senator Kyl. Let me ask this question to probably Mr. 
Lewis, but any of the rest of you might have some experience 
with it. In the matter of domestic terrorism, let's say a 
militia-type organization, where there is some reason to 
believe that this is a group that likes to talk pretty tough 
and may have some history of even having--it seemed like they 
were planning terrorist activities, but nothing current, and 
you would like to find out what is going on with this group and 
you would like to get somebody on the inside so you could find 
out if they are planning anything. What is the law?
    Mr. Lewis. Those fall into the domestic guidelines, and we 
didn't address that as a Commission, but that falls under the 
general criminal domestic guidelines. We are not talking about 
FISA's. We are talking title III, and certainly we can put 
somebody in the group. This is going to get into preliminary 
inquiries, full investigations, and it gets very complicated.
    But if it is a preliminary inquiry, which we probably would 
do to start off with, we could not go out and recruit somebody. 
We could use an existing informant that we know of and try to 
get them in there. That is in accordance with the Attorney 
General's guidelines. Once we make a determination that they 
are up to no good, then we can recruit informants, et cetera, 
and work from there.
    Senator Kyl. And that is one of the key distinctions 
between the foreign and the domestic situation?
    Mr. Lewis. Yes, Senator.
    Senator Kyl. I think it is important for the American 
citizenry to understand these. And I understand that these can 
be complicated issues and everyone has a pretty visceral 
reaction to any infringement on our freedom in this country. 
That is why I think it is also important that you had the 
opportunity to further expound on the situation that could 
potentially involve tens of thousands of people injured or 
killed in this country, the need for some kind of general 
government policy in dealing with the emergency, and the desire 
to know in advance what the general guidelines would be.
    You can easily foresee, for example, the situation where an 
ethnic group would be singled out, and Ms. Kayyem made the 
point there that you can't allow that kind of thing to occur in 
the application of this kind of emergency power if it is going 
to be granted to the Government, such as the Defense 
    Mr. Woolsey. Mr. Chairman, if I might, just one clarifying 
thing. John or any of the others can correct me if I am wrong. 
In the context of the distinction between title III and FISA 
and U.S. persons and non-U.S. persons that we are talking 
about, a permanent resident alien, a green card holder, is a 
U.S. person for this purpose. When we are talking about a non-
U.S. person, we would be talking about someone who was, say, 
here on a student visa or something like that.
    Ms. Kayyem. There can be FISA surveillance against U.S. 
citizens if the U.S. citizen has a connection to foreign 
intelligence. So U.S. citizens would apply in the FISA and the 
title III. What John and Jim are getting at is in both 
statutes, there are different requirements, depending on if you 
are a U.S. citizen or not. And, of course, they are much 
stricter for U.S. citizens, as would be appropriate under the 
    Mr. Woolsey. U.S. persons.
    Ms. Kayyem. U.S. persons, right.
    Senator Kyl. Somewhere, someplace there probably should be 
a nice chart.
    Mr. Lewis. We have one.
    Senator Kyl. There probably is, OK, and for those of our 
fellow citizens who are interested in this kind of thing, I 
certainly invite questions. We may not be able to answer them, 
but we can certainly get them to the people that can.
    I want the American people to feel good about the fact that 
we have very dedicated citizens of this country, very 
knowledgeable people who have served in the Government who are 
looking at these issues, who care enough to make 
recommendations about how to deal with terrorism, and who care 
very deeply about the necessary constitutional protection of 
American citizens in the process.
    I urge them, if they have concerns, rather than venting 
concerns, as I have heard some do, to channel those concerns in 
a constructive way, such as those who submitted questions to us 
today to pose to you. I think that is the right way to go about 
doing this, and would urge any of those kinds of groups in good 
faith to do that. And I will certainly respond in good faith, 
and I know that the Commission members will react in that same 
    I hope that you will be available if we have additional 
questions. I appreciate your service in this matter very much, 
and appreciate your testifying here today.
    Mr. Bremer. Thank you, Mr. Chairman.
    [The prepared statement of Mr. Bremer follows:]

          Prepared Statement of Ambassador L. Paul Bremer III

    Mr. Chairman, Members of the Subcommittee, thank you for the 
opportunity to appear before the Subcommittee this afternoon to review 
the conclusions and recommendations of the National Commission on 
    The threat of terrorism is changing dramatically. It is becoming 
more deadly and it is striking us here at home. Witness the 1993 
bombing of the World Trade Center, the thwarted attacks on New York's 
tunnels, and the 1995 plot to blow up 11 American airliners. If any one 
of these had been fully successful, thousands would have died. Crowds 
gathered to celebrate the Millennium were almost certainly the target 
for the explosives found in the back of a car at the U.S. border in 
December 1999. The Annual Report of the Canadian Security Intelligence 
Service, released earlier this month, cites the Millennium arrests as 
an example of today's threat: that of ``an international ad hoc 
coalition of terrorists'' who ``have expressed the intention of causing 
harm to Americans and their allies.'' Overseas, more than 6,000 
casualties were caused by just three anti-U.S. attacks, the bombings of 
a U.S. barracks in Saudi Arabia and of the U.S. embassies in Kenya and 
    If three attacks with conventional explosives injured or killed 
6,000, imagine the consequences of an unconventional attack. What if a 
release of radioactive material made 10 miles of Chicago's waterfront 
uninhabitable for 50 years? What if a biological attack infected 
passengers at Dallas-Fort Worth Airport with a contagious disease?
    It could happen. Five of the seven countries the U.S. Government 
considers terror-supporting states are working on such weapons and we 
know some terrorist groups are seeking so-called weapons of mass 
    Congress established the National Commission on Terrorism to assess 
U.S. efforts to combat this threat and to make recommendations for 
changes. The Commission found that while many important efforts are 
underway, America must immediately take additional steps to protect 
    First, we must do a better job of figuring out who the terrorists 
are and what they are planning. First-rate intelligence information 
about terrorists is literally a life and death matter. Intelligence 
work, including excellent cooperation with Jordan, thwarted large-scale 
terrorist attacks on Americans overseas at the end of last year. Such 
welcome successes should not blind us to the need to do more.
    Efforts to gather information about terrorist plots and get it into 
the hands of analysts and decisionmakers in the federal government are 
stymied by bureaucratic and cultural obstacles. For example, who better 
to tell you about the plans of a terrorist organization than a member 
of that organization? Yet, a CIA offficer in the field hoping to 
recruit such a source faces a daunting series of reviews by committees 
back at headquarters operating under guidelines that start from the 
presumption that recruiting a terrorist is a bad thing. This 
presumption can be overcome, but only after an extensive process 
designed to reduce the risk from such a recruitment to as near zero as 
    Even if a young case officer makes it through this gauntlet, will 
the potential terrorist recruit still be around? Will the attack have 
already occurred? These guidelines were issued in response to 
allegations that the CIA had previously recruited individuals guilty of 
serious acts of violence. The Commission found that whatever their 
intention, they have come to constitute an impediment to effect 
intelligence collection and should not apply to counterterrorism 
sources. CIA held officers should be as free to use terrorist 
informants as prosecutors in America are to use criminal informants.
    We also need more vigorous FBI intelligence collection against 
foreign terrorists in America and better dissemination of that 
information. FBI's role in collecting intelligence about terrorists is 
increasingly significant. Thus, it is essential that they employ the 
full scope of the authority the Congress has given them to collect that 
information. Yet, the Commission found that the Attorney General 
guidelines that govern when the FBI can open a preliminary inquiry or 
full investigation are unclear (they run to over 40 pages). The 
Commission heard testimony from both serving and retired agents that 
they are often unsure whether the circumstances of a particular case 
meet the criteria, which contributes to a risk-averse culture. Thus, 
the Commission recommends that the Attorney General and the Director of 
the FBI develop guidance to clarify the application of the guidelines, 
specifically the facts and circumstances that merit the opening of a 
preliminary inquiry or full investigation.
    Another problem affecting the FBI's terrorism investigations is the 
overly cautious approach by the Office of Intelligence Policy and 
Review (OIPR) within the Department of Justice in reviewing 
applications for electronic surveillance against international 
terrorism targets. The Commission concluded that OIPR is requiring a 
higher standard than required by the Foreign Intelligence Surveillance 
Act in approving applications submitted by the FBI. The Justice 
Department came to the same conclusion in its report on the Wen Ho Lee 
matter, finding that OIPR was needlessly restrictive of the statute. 
The Commission therefore recommends that the Attorney General direct 
that OIPR not require information in excess of what is mandated by the 
probable cause standard under FISA. The Commission also recommends 
additional OIPR personnel to ensure timely review of FISA applications.
    Once the information is collected by the FBI, technology shortfalls 
and institutional practices limit efforts to exploit the information 
and get it into the hands of those who need it--such as intelligence 
analysts and policymakers. The Commission recommends increased 
resources to meet FBI's technology needs, particularly in the area of 
encryption. More than 50 percent of the FBI's field offices report 
encountering encryption in criminal, counterintelligence or terrorist 
activity. In many of these cases, the FBI has difficulty in gaining 
timely access to the plain text of lawfully seized evidence, greatly 
hampering investigations and efforts to protect the public safety.
    In the President's budget request, the FBI specified urgent 
requirements for improved technology, including the formation of a 
Technical Support Center to respond to the increased used of 
encryption. The Commission urges the Subcommittee to give the request 
careful consideration and to work with your colleagues on the 
Appropriations Committee to ensure this critical need is adequately 
funded. We also have a recommendation designed to improve the ability 
of agencies to quickly identify, locate, and use translators--a 
perennial problem that plagues not just intelligence agencies but is 
particularly critical for time sensitive needs such as preventing a 
terrorist attack.
    This de-crypted and translated information is only valuable, 
however, if it gets to the people who need it. Dissemination of general 
intelligence information has not traditionally been an important part 
of FBI's mission. They do a good job of sharing specific threat 
information but, otherwise, sharing of information is not given a high 
priority. In fact, if the information is not specific enough to issue a 
warning or is not relevant to an investigation or prosecution, it may 
not even be reviewed. Information collected in field offices often 
never even makes it to headquarters. There is a dangerous possibility, 
however, that the unreviewed information could be the key to preventing 
an attack in the future.
    The World Trade Center case is an example of this problem. In 1992, 
Ahmed Mohamed Ajaj entered the U.S. with Ramzi Yousef. In addition to 
several passports, Ajaj carried with him manuals containing 
instructions on constructing bombs of the type used in the WTC bombing. 
But more than seven years later, Ajaj's notebooks and manuals, specific 
pages of which were submitted as evidence during the WTC trial, have 
yet to be disseminated to the intelligence community for full 
translation and exploitation of the information.
    The CIA faces a similar problem with the information it collects 
overseas in trying to protect sources and methods while disseminating 
the information as quickly and as broadly as possible to those who need 
it. CIA addresses this with dedicated personnel, called reports 
officers, located overseas and at headquarters who are responsible for 
reviewing, prioritizing, and distilling collected information for 
timely distribution. The Commission recommends that the FBI establish 
its own cadre of reports officers. To disseminate effectively the 
information while protecting criminal prosecutions and privacy rights, 
the FBI reports officers should be trained both in the information 
needs of the intelligence community and the legal restrictions that 
prohibit disclosure of some types of law enforcement information. To 
take on this new mission, the FBI must be provided the additional 
resources that would be required.
    Recent events have also demonstrated what terrorists could do if 
they decided to use their increasingly sophisticated computer skills to 
perpetrate a cyber attack. A vigorous plan for defending against such 
attacks must be a national priority. In addition, because cyber attacks 
are often transnational, international cooperation is essential. The 
Commission therefore recommends that the Secretary of State take the 
lead in the drafting and signing of an international convention on 
cyber crime. There is a current draft Council of Europe convention on 
cyber crime and the U.S. is participating in the negotiations. The 
Commission did not take a position on the current draft, which is 
months away from a final version. The draft does, however, contain some 
important provisions that will aid in international investigations of 
cyber attacks. The convention would make cyber attacks criminal 
offenses in all the signatory countries. It also recognizes that with 
cyber attacks, cooperation in international investigations must be 
accomplished in a matter of hours, before critical evidence disappears.
    The Commission also strongly recommends measures to improve the 
lagging technological capabilities of the National Security Agency, the 
FBI and the CIA so that they don't completely lose their ability to 
collect intelligence against techno-savvy terrorists. These agencies, 
particularly the NSA, require funding to close the gaps in technology.
    On the policy front, the United States needs to go after anyone 
supporting terrorists, from state sponsors, to nations that turn a 
blind eye to terrorist activity, to private individuals and 
organizations who provide material support to terrorist organizations.
    Mr. Chairman, three of the state sponsors of terrorism. Iran, Syria 
and North Korea are currently undergoing internal changes. In the case 
of Iran, while the Americans may hope that President Khatemi can 
institute sensible political and economic reforms, the regrettable fact 
is that Iran continues to be the world's primary terrorist nation. 
Indeed, in the period since Khatemi's election, Iranian support for 
terrorists opposed to the peace in the Middle East has actually 
increased. Furthermore, there are indications that Iran was involved in 
the 1996 bombing attack in Saudi Arabia that killed 19 Americans. We 
think it is vital that the American government makes a sustained effort 
to enlist our allies in pressuring Iran to cooperate in the Khobar 
Towers bombing investigation. Until there is a definitive change in 
Iranian support for terrorism, we recommend that our government make no 
further gestures towards the Iranian government.
    It is too early to tell if the death of Syrian dictator Hafez Assad 
will bring any change in that country's long support for terrorism. In 
conversations which American officials have with the new leaders of 
Syria, it should be made clear that Syria cannot expect normal 
relations with the outside world until it takes concrete, measurable 
steps to stop its support for terrorists. Hopefully the new leader of 
that country will come to understand that such a step is the 
prerequisite to obtaining the Western trade and investment essential to 
modernize Syria's economy.
    Similarly, it is too soon to know if the dramatic summit in 
Pyongyang two weeks ago will pay dividends in getting North Korea to 
stop its support for terrorism. For years, that country has provided 
safehaven and support to radical Japanese terrorists. The communist 
government itself has been guilty of savage and bloody acts of 
terrorism, including an attempt to kill the entire South Korean cabinet 
and blowing up a South Korean airliner. More recently, the government 
is suspected of having sold weapons to terrorist groups.
    Recognizing the importance of encouraging change in North Korea, 
the U.S. Government last week eased a number of long-standing 
prohibitions against contacts between our two countries. But wisely the 
U.S. has left in place those sanctions which flow from the North's 
continued support for terrorism. And I believe our government should 
insist, as with Iran and Syria, that the North take specific concrete 
steps to stop its support for terrorism before giving them a clean bill 
of health.
    The other countries the U.S. identifies as state sponsors (Cuba, 
Sudan, Iraq and Libya) should be made to understand that we will 
continue sanctions until they take concrete steps to cease all support 
for terrorism. In addition, the Taliban regime in Afghanistan should be 
designated a state sponsor.
    There are also states that, while they may not actively support 
terrorists, seem to turn a blind eye to them. Congress gave the 
President the power to sanction nations that are not fully cooperating 
against terrorism, but the power has not been effectively exercised. 
There are candidates for this category. For example, Pakistan has been 
very helpful at times, yet openly supports a group that has murdered 
tourists in India and threatened to kill U.S. citizens. NATO ally 
Greece seems indifferent to the fight against terrorism. Since 1975 
terrorists have attacked Americans or American interests in Greece 146 
times. Greek officials have been unable to solve 145 of those cases. 
And just this month, terrorists struck again with the cowardly 
assassination in Athens of the British Defense Attache.
    As today's terrorist groups receive less monetary support from 
states, they must seek funding elsewhere, such as individual 
sympathizers and non-government organizations (NGOs). Thus, disrupting 
these non-state sources of funding for terrorism has an increased 
importance. The Commission recommends that the U.S. government use the 
full range of legal and administrative powers at its disposal against 
these funding sources. The current strategy against terrorist 
fundraising is too focused on prosecutions for providing material 
support to designated foreign terrorist organizations (FTOs). While 
these cases are not impossible to make, it is very difficult to 
prosecute and convict under the FTO statute. The Commission therefore 
recommends a broader strategy against terrorist fundraising. Money 
laundering, tax, fraud and conspiracy statutes all lend themselves to 
aggressive use against terrorist organizations, their front groups and 
    To implement this broad strategy, the Commission recommended the 
formation of a joint task force of all U.S. Government agencies with 
information and authority relevant to terrorist fundraising, as well as 
an expanded role for the Treasury Department's Office of Foreign Assets 
Control. As the Commission's report was going to press, the resident 
announced a Counterterrorism Funding Request that included the 
formation of an interagency National Terrorist Asset Tracking Center 
and an expanded OFAC. The President also requested funding for 
additional DoJ prosecutors, which would support the Commission's 
recommendation for using all available criminal statutes against 
terrorists. The Commission therefore urges support for the President's 
funding request.
    In addition, because international cooperation is necessary in many 
cases of terrorist fundraising, the Commission calls for the 
ratification of the International Convention for the Suppression of the 
Financing of Terrorism. This new UN treaty would criminalize terrorist 
fundraising in the signatory countries and provide for cooperation in 
the investigation and prosecution of those crimes.
    It is difficult to predict whether terrorists will use chemical, 
biological, radiological or nuclear weapons. But it is troubling to 
note that the FBI reports that there has been a dramatic increase in 
the number of threats to use such agents in the U.S. over the past 4 
years. The consequences of even a small-scale incident are so grave 
that certain weaknesses in American approach should be addressed 
    Three concrete steps should be taken right now to reduce the risk 
that terrorists will get their hands on a biological weapon: 
criminalize unauthorized possession of the most worrisome biological 
agents, strengthen safeguards against theft of these agents, and 
control the sale of equipment necessary for weaponizing biological 
agents. Examples of this critical equipment include specialized 
fermenters, aerosol and freeze-drying equipment. Controls on biological 
agents should be as stringent as those applied to critical nuclear 
    The Commission also examined the actions that the U.S. Government 
would have to take in a catastrophic threat or attack, and the legal 
authorities for such actions. The Commission found that most of the 
needed legal authorities exist, but are scattered throughout different 
federal statutes. There are also some gaps in legal authorities. For 
example, there are gaps in the quarantine authority of cities and 
States and no clear federal authority with regard to vaccinations. It 
is not clear that law enforcement officials are aware of their powers 
for certain types of searches in emergency situations. If government 
officials are not fully aware of the extent of their legal authorities, 
there is the danger that in a crisis situation they will be hesitant to 
act or act improperly. The Commission therefore recommends that the 
President direct the preparation of a manual outlining existing legal 
authorities for actions necessary in a catastrophic threat or attack 
and that the President determine whether additional authorities are 
needed to deal with catastrophic terrorism.
    Let me also take this opportunity to clarify the record on a couple 
of our recommendations that have been incorrectly reported in the 
press. First, there have been some reports claiming that the Commission 
recommends putting the Department of Defense in charge of responding to 
terrorist attacks in the U.S. This is not true. What we said, and I am 
now quoting from the report, is that ``in extraordinary circumstances, 
when a catastrophe is beyond the capabilities of local, state, and 
other federal agencies, or is directly related to an armed conflict 
overseas, the President may want to designate DoD as a lead federal 
agency.'' (Emphasis added.)
    The Commission did not recommend or even suggest an automatic 
leading role for the Defense Department in all cases. But if we 
undertake contingency planning for a catastrophic terrorist attack in 
the U.S., we must consider all plausible contingencies, including the 
possibility of a federalized National Guard force operating under the 
direction of the Secretary of Defense. Not to do so would be 
irresponsible. In making this recommendation, the Commission had in 
mind the lessons of the catastrophic attack on Pearl Harbor. In the 
hysterical aftermath of the attack, two of America's great liberals, 
Franklin Roosevelt and Earn Warren, locked up Japanese-Americans. The 
best way to minimize any threat to civil liberties in such an 
extraordinary scenario is through careful planning, including a 
thorough analysis of the relevant laws, the development of appropriate 
guidelines, and realistic training. Thus, the Commission recommended 
that the National Security Advisor, the Secretary of Defense, and the 
Attorney General develop detailed plans for this contingency.
    The second recommendation that has been misrepresented has to do 
with foreign students in the U.S. The Commission looked at the larger 
concern of border security and the difficulty of dealing with the 
massive flows of people crossing U.S. borders every day. But with only 
six months, the Commission did not have time to develop a full 
recommendation on how to improve it. It is a huge problem, and one that 
probably would benefit from a full review by Congress or the executive 
branch (or another commission). The Commission was alerted to one 
aspect of the problem dealing with a long-standing program relating to 
foreign students in the U.S.
    For decades, the INS has required colleges and universities to 
collect and maintain information on the foreign students enrolled in 
their institutions. This has included information on citizenship, 
status (e.g. full or part-time), the date the student commenced 
studies, their field of study, and the date the student terminated 
studies. The purpose was to ensure that foreigners who came to the 
United States as students did not break the law by staying after they 
had finished, or stopped, their studies. Until recently this data was 
managed manually and was thus not available to the government in a 
timely manner.
    The bombing of the World Trade Center in 1993 showed the weakness 
of this long-standing process when it was discovered that one of the 
bombers had entered this country on a student visa, dropped out and 
remained here illegally. He was subsequently tried and convicted for 
his role in that terrorist attack, which took six American lives and 
injured over 1000 others. He is currently serving a 240-year prison 
    Concerned about the obvious inadequacy of the long-standing program 
to collect information about foreign students, in 1996 Congress 
directed the Attorney General to modernize that system. In response, 
the INS established a pilot program using an Internet-based system to 
report electronically the information colleges and universities had 
already been collecting for many years.
    The pilot program, called CIPRIS, covers approximately 10,000 
foreign students from all countries who are enrolled in 20 colleges, 
universities, and training programs in the southern U.S. The purpose is 
to bring the visa-monitoring system into the 21st century. After 
several years experience, the INS has concluded that CIPRIS is 
effective and has proposed to apply it nationwide.
    The Commission reviewed CIPRIS and the criticisms of the program, 
the primary one being the INS proposal to have the universities collect 
the fees needed to support the program. It is my understanding that, 
while the universities opposed the idea of having to collect the fee, 
they did not oppose the main objective of the program to require 
reporting of information on foreign students.
    The Commission concluded that monitoring the immigration status of 
foreign students is important for a variety of reasons, including 
counterterrorism. The Commission did not believe, however, that it was 
in a position to recommend specifically that the CIPRIS program be 
    The Commission is not recommending any new requirements on foreign 
students in the United States. The Commission's position is consistent 
with regulations that have been in place for many years, and with the 
view of Congress which mandated the creation of a program to more 
efficiently keep track of the immigration status of foreign students.
    As the danger that terrorists will launch mass casualty attacks 
grows, so do the policy stakes. To protect her citizens, America needs 
a sustained national strategy in which leaders use first-rate 
intelligence to direct the full range of measures-diplomatic, economic 
and commercial pressures, covert action and military force-against 
terrorists and their state sponsors.
    Mr. Chairman, at this point I would like to introduce my fellow 
Commissioners who are here today: the Commission's Vice Chairman, Mr. 
Maurice Sonnenberg, Ms. Jane Harman, Ms. Juliette Kayyem, Mr. John 
Lewis and Mr. James Woolsey. In addition to those here today, the 
Commission included Dr. Richard Betts, Gen. Wayne Downing, Dr. Fred 
Ikle and Mr. Gardner Peckham. It was a privilege to work with this 
group of dedicated individuals.

    [Whereupon, at 3:42 p.m., the subcommittee was adjourned.]

                            A P P E N D I X


                 Additional Submissions for the Record


               The Prepared Statement of Alexander Philon

                   greece's policy against terrorism
    Combating terrorism is a top priority for the government as well as 
for the people of Greece, because of the lives lost, foreign and mainly 
Greek, the threats against persons and properties and also because of 
the damage caused to Greece, one of the safest countries in Europe.
    The government has declared a relentless war against terrorism and 
seeks the mobilization of the whole Greek society for tackling this 
phenomenon, which threatens many countries. Greek people realize more 
than ever the harm done to the country and this was evident from the 
unprecedented outpouring of public sympathy to the family of Brigadier 
Saunders and from many comments in the Greek press.
    Greece has been closely cooperating with the law enforcement 
authorities of the U.S. and with the relevant authorities of other 
countries such as Scotland Yard who are helping Greek police in the 
investigation of the murder of Brigadier Saunders. We have enhanced the 
anti-terrorism unit's resources and personnel, many of which have been 
trained in the U.S. and other countries. It should be pointed out, in 
this framework, that an FBI unit operates in Greece in close 
cooperation with the Greek authorities and a Greek-U.S. memorandum on 
bilateral police cooperation will be signed shortly. This ongoing 
cooperation has been repeatedly confirmed publicly by the U.S. 
Administration. In view of the need to tackle terrorism on an 
international basis, the Greek government has also launched a joint 
initiative within the European Union to combat terrorism.
    The safety of U.S. diplomats serving in Greece has always been of 
outmost concern of the Greek government and their protection, in 
collaboration with the U.S. Embassy in Athens, has also been assured.
    The reward for any information leading to the apprehension of the 
terrorists has been doubled to the sum of $ 2.8 mil.
    Measures are being prepared to increase the effectiveness of the 
existing legal framework including a provision for the exclusion of 
jurors from the composition of courts trying terrorists and the 
formulation of a witness protection system.
    As to the rumors that the governing socialist party ``turned a 
blind eye to terrorism'', no evidence has ever been forwarded to the 
Greek authorities.
    Furthermore from 1975-1981 and 1990-1993 conservative governments 
in Greece, were not successful in tracking down terrorist groups, even 
though the son-in-law of the then-Prime Minister Mitsotakis was 
assassinated by the 17 November terrorist organization.
    Finally why should the Greek ruling party allow itself to be 
branded as passive in combating terrorism when, in fact, its own 
members and premises have been targeted and when prominent Greek 
citizens have been assassinated and Greece itself is the ultimate 
victim of this scourge? In fact, the very aim of terrorism is to 
destabilize the country and also to create problems between Greece and 
her European Union partners and NATO allies.

                                Harvard University,
                      John F. Kennedy School of Government,
                                      Cambridge, MA, June 27, 2000.
Hon. Jon Kyl,
U.S. Senate,
Washington, DC.

    Dear Senator Kyl:
    As a former Commissioner on the National Commission on Terrorism, 
it is an honor to respond to your request regarding the important 
recommendations of the Commission in regard to combating terrorism, 
and, in particular, the Commission's recommendation concerning the 
Foreign Intelligence Surveillance Act (FISA). Under the exceptional 
leadership of Arnbassador L. Paul Bremer, the Commission came together 
to explore, debate and resolve some of the main issues confronting 
American counter-terrorism policy. While all Commissioners agreed on 
the vast majority of recommendations, I could not concur in the section 
and recommendation regarding thc FISA. Report at 10-12.
    The Commission's recommendation proceeds on the proper assumption 
that the constitutional probable cause standard applies here as it 
would in an ordinary criminal investigation. Every member of the 
Commission is committed to ensuring that the constitutional and 
statutory protections are met in the most lawful and efficient manner. 
We should not lose sight of this critical point of agreement. 
Nevertheless, I did not concur in this portion of the report.
    The question before the Commission was: given the FBI's concerns 
that the process for securing a wiretap under FISA was slow and 
unwieldy, how can we fix it? As a preliminary matter, it is important 
to put these concerns in context. This issue involves the possible 
surveillance of persons while they are lawfully in the United States; 
880 wiretaps were approved alone last year. The FISA court has never, 
except possibly once, denied an application. Moreover, when Congress 
passed FISA, it was not simply to ensure that appropriate surveillance 
could be undertaken. It was also to ensure that the FBI's use of secret 
wiretaps not be abused. To that end, Congress established the Office of 
Intelligence Policy and Review (OIPR), a group of specialized attorneys 
who were charged with ensuring that the FBI had put forth adequate 
evidence to show probable cause. I believe Congress was correct in 
making the judgment that such an institutional safeguard was necessary.
    In this respect, I concur with the Commission's recommendation that 
there should be more cooperation between law enforcement agencies and, 
if necessary, greater resources for the OIPR attorneys who work with 
the FBI to ensure that the probable cause standard is met. These steps 
may go a long way towards addressing the concerns that the FBI 
    The more difficult questions concern the kind and amount of 
information that OIPR attorneys should request from the FBI before it 
proceeds to apply for a court order under the FISA. The Commission 
Report concludes that ``to obtain a FISA order, the statute requires 
only probable cause to believe that someone who is not a citizen or 
legal permanent resident of the United States is a member of an 
international terrorist organization. In practice, however, OIPR 
requires specific evidence of wrongdoing or specific knowledge of the 
group's terrorist intentions in addition to the person's membership in 
the organization before forwarding the application to the FISA court.'' 
Report at 11. The Commission then recommends that ``[t]he Attorney 
General should direct that the Office of Intelligence Policy and Review 
not require information in excess of that actually mandated by the 
probable cause standard in the Foreign Intelligence Surveillance Act.'' 
Report at 12. The report therefore suggests that OIPR has in some cases 
requested information in excess of what the statute requires. Report at 
    In my view, OIPR may be justified in construing the statute in 
specific cases to require information of a target's knowledge of a 
group's intentions or activities. ``Membership'' is potentially a very 
broad status. Its meaning is uncertain in this context, and the statute 
nowhere defines what evidence demonstrates membership. In many cases, 
there may be no membership list, and thus evidence of membership would 
have to be based on less formal indicators. In other cases, a person 
may be included in the membership list of an organization, even though 
his initial membership pre-dated the objectionable activities of the 
organization and even though his contacts with that organization during 
the period in which it was engaged in terrorist activities have been 
non-existent. Such a person could have an entirely passive connection 
to the organization. He also may be entirely unaware of the activities 
of the organization that has drawn the attention of law enforcement. As 
a result, it would be quite surprising if Congress intended to 
authorize surveillance of such a person without any additional showing 
being made. OIPR does not seem to me to have been acting in excess of 
its statutory mandate in proceeding on that assumption.
    The language of the FISA statute seems consistent with this 
conclusion. It provides that an application for surveillance is met if 
``on the basis of the facts submitted by the applicant there is 
probable cause to believe that * * * the target of the electronic 
surveillance is a foreign power or an agent of a foreign power.'' 50 
U.S.C. Sec. 1 804(a3(4)(A). The statute defines a ``foreign power'' to 
include ``a group engaged in international terrorism or activities in 
preparation therefor[.]'' The statute goes on to provide that an `` 
[a]gent of a foreign power'' means * * * any person other than a United 
States person, who * * * acts in the United States as an officer or 
employee of a foreign power, or as a member of a foreign power. * * *'' 
It further provides that an ``agent of a foreign power'' can include 
one who ``acts for or on behalf of a foreign power'' which engages in 
certain specified activiities. In addition, the Act provides that an 
agent of a foreign power is one who ``knowingly aids or abets'' any 
person in certain specified activities or ``knowingly conspires with 
any persons to engage in such activities. * * *'' 50 U.S.C. 1801, et 
    These provisions indicate that it may be entirely appropriate for 
OIPR to have sought the kind of additional information that it has 
apparently requested in some cases. The Act defines an ``agent of 
foreign power'' to be a person who ``acts . . . as a member of a 
foreign power.'' The verb ``acts'' signals that something more than 
passive membership may be required. Indeed, subsequent provisions 
defining ``agent of a foreign power'' refer to the targeted person 
either ``knowingly aiding or abetting'' or ``knowingly conspiring.'' 
These provisions contemplate a target who is somehow actively engaged 
in, or knowingly aware of, proscribed activities. As I have said, the 
statute does not define what evidence suffices to prove membership. In 
this context, in particular, that is likely to be a difficult, fact-
intensive inquiry in which evidence of a target's knowledge of an 
organization's activities and intentions may be quite relevant.
    One must also assume that, whatever the statutory standard, the 
constitutional protections within the Fourth Amendment must also be met 
before a FISA application can be granted. The Commission and I are in 
agreement on this point. In my view, the Constitution may require more 
than simply showing that the target retained formal membership in an 
organization with which he has had little or no contact for a 
significant period of time. It may require showing that the target has 
at the very least some awareness that the organization of which he is a 
member is a ``group engaged in international terrorism or activities in 
preparation therefor.'' It could therefore be relevant in an analysis 
of probable cause to determine when the target became a member of the 
targeted organization. It could be relevant as well to determine the 
nature of the person's involvement with that organization during the 
time period in which it was engaged in terroist activities.
    In sum, as I read the statute, and understand the constitutional 
standard, the facts of each case must be carefully considered to ensure 
that the legal standards--whether statutory, constitutional, or both--
have been met. That careful consideration is one appropriately carried 
out by the attorneys that Congress foresaw would have the expertise to 
make such judgrnents. The recommendation that the Attorney General 
direct OIPR attorneys to require no more than what the statute requires 
is not necessarily objectionable. I am concerned, however, that the 
recommendation, if followed, would preclude the OIPR from asking 
questions of the FBI that are in accord with the proper legal standard 
rather than in excess of it.
    I realize that the Commission would still require the FBI to 
maintain court approval and thus that the FISA court would serve as an 
important check on any application. That check would apply even if OIPR 
were directed to approve any application to wiretap a person who was 
formally a member of a targeted organization. But, courts are often 
quite deferential to law enforcement in this area. And, perhaps, 
appropriately so. For that very reason, however, the executive branch 
has a special obligation to satisfy itself before it asks a court to 
reach that conclusion. That is particularly true where, as here, the 
determination of probable cause turns on fact intensive judgements 
about the precise details of a target's connection to an organization 
that, in many circumstances, will be operating outside this country. As 
a result, one must give some room for discretion and judgment by the 
very attorneys who need to make the case and who are trained to make 
such judgments. In fact, I think the Justice Department's record of 
success in FISA cases in court thus far is in part attributable to its 
willingness to abide by that obligation. The Department's care in this 
regard no doubt bolsters its credibility in those cases in which a 
court may be hesitant to grant a request. Therefore, I did not concur 
in the Commission's recommendation.
    In explaining my disagreement with the Commission on this issue, I 
do not mean to detract from the important ways in which this report 
does respond to the very real concerns of persons from communities who 
are often peculiarly affected by our counterterrorism policies. In 
particular, I think it is important to highlight in this regard the 
Commission's important recommendation concerning the use of secret 
evidence by the INS to remove aliens from the United States who are 
suspected of terrorism or other national security threats.
    Nearly two dozen people have been detained on the basis of secret 
evidence, some for two years or more. They can not see the evidence. 
Their counsel can not see the evidence. It is significant, for me, that 
nearly all, if not all, are Arabs or Muslims. The Commission noted that 
``resort to the use of secret evidence without disclosure even to 
cleared counsel should be discontinued, especially when criminal 
prosecution through an open court proceeding is an option.'' Report at 
    Some have suggested, perhaps appropriately, that it is necessary to 
limit the use of this practice even more than the Commission 
recommends. Nonetheless, the Commission has made substantial progress 
on secret evidence and has suggested several protections--mandatory 
declassified summaries and access to a counsel who is cleared to review 
national security materials but who could also provide adequate 
representation--be put in place. I hope that its recommendation will 
serve as the basis for a reconsideration of this practice by both the 
Congress and the Department of Justice.
    I appreciate the opportunity to further explain my views regarding 
the Commission's recommendations.
                                           Juliette Kayyem,
                    Commissioner, National Commission on Terrorism.