[Senate Hearing 106-848]
[From the U.S. Government Publishing Office]
S. Hrg. 106-848
COUNTERING THE CHANGING THREAT OF INTERNATIONAL TERRORISM
=======================================================================
HEARING
before the
SUBCOMMITTEE ON TECHNOLOGY, TERRORISM,
AND GOVERNMENT INFORMATION
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
on
THE NATIONAL COMMISSION ON TERRORISM'S REPORT ON ISSUES RELATING TO
EFFORTS BEING MADE BY THE INTELLIGENCE AND LAW ENFORCEMENT COMMUNITIES
TO COUNTER, AND U.S. POLICIES REGARDING, THE CHANGING THREAT OF
INTERNATIONAL TERRORISM TO THE UNITED STATES
__________
JUNE 28, 2000
__________
Serial No. J-106-95
__________
Printed for the use of the Committee on the Judiciary
__________
U.S. GOVERNMENT PRINTING OFFICE
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
(ii)
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Kyl, Hon. Jon, U.S. Senator from the State of Arizona............ 1
Feinstein, Hon. Dianne, U.S. Senator from the State of California 3
CHRONOLOGICAL LIST OF WITNESSES
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
ALPHABETICAL LIST AND MATERIAL SUBMITTED
Bremer III, L. Paul:
Testimony.................................................... 5
Prepared statement........................................... 29
APPENDIX
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
COUNTERING THE CHANGING THREAT OF INTERNATIONAL TERRORISM
----------
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.
OPENING STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE
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
efforts.
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
States?
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.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
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
aliens.
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
recommendations.
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.
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
STATEMENT OF L. PAUL BREMER III
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
record.
[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
questions.
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
terrorists.
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
statute.
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
detail.
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
taken.
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
interviews?
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
notes.
Mr. Bremer. I would have to consider that question,
Senator.
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
people.
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
informants.
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
middle.
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
recommendation.
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
leave.
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
compensation.
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.
[Laughter.]
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
additionally?
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
Comitatus.
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
time.
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
States.
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
information.
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
track.
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
recom-
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
perspective.
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
addition?
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
dozens.
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
stringent.
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
that.
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
membership.
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
problem.
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
Department.
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
law.
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
way.
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
Terrorism.
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
Tanzania.
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
destruction.
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
itself.
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
possible.
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
supporters.
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
immediately.
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
materials.
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
term.
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
implemented.
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
identified.
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
11.
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
seq.
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
32.
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.
Sincerely,
Juliette Kayyem,
Commissioner, National Commission on Terrorism.