[Senate Hearing 107-1043]
[From the U.S. Government Publishing Office]



                                                       S. Hrg. 107-1043

 
 TOOLS AGAINST TERROR: HOW THE ADMINISTRATION IS IMPLEMENTING NEW LAWS 
                  IN THE FIGHT TO PROTECT OUR HOMELAND

=======================================================================

                                HEARING

                               before the

                 SUBCOMMITTEE ON TECHNOLOGY, TERRORISM,
                       AND GOVERNMENT INFORMATION

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                            OCTOBER 9, 2002

                               __________

                          Serial No. J-107-110

                               __________

         Printed for the use of the Committee on the Judiciary


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                          WASHINGTON : 2004
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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director
                                 ------                                

   Subcommittee on Technology, Terrorism, and Government Information

               DIANNE FEINSTEIN, California, Chairperson
JOSEPH R. BIDEN, Jr., Delaware       JON KYL, Arizona
HERBERT KOHL, Wisconsin              MIKE DeWINE, Ohio
MARIA CANTWELL, Washington           JEFF SESSIONS, Alabama
JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
                 David Hantman, Majority Chief Counsel
                Stephen Higgins, Minority Chief Counsel



                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    11
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................     1
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  prepared statement.............................................   123
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........     3

                               WITNESSES

Edson, Stephen A., Acting Deputy Assistant Secretary of State for 
  Visa Services, Bureau of Consular Affairs, Department of State, 
  Washignton, D.C................................................    23
Fine, Glenn A., Inspector General, Department of Justice, 
  Washington, D.C................................................     5
Fisher, Alice, Deputey Assistant Attorney General, Criminal 
  Division, Department of Justice, Washington, D.C...............     8
Hastings, Scott, Associate Commissioner for Information Resources 
  Management, Immigration and Naturalization Service, and Michael 
  Cronin, Assistant Commission for Inspections, Immigration and 
  Naturalization Service, Washington, D.C........................    21
Lormel, Dennis, Chief, Terrorist Financing Operations Section, 
  Counterterrorism Division, Federal Bureau of Investigation, 
  Washington, D.C................................................    10
Wu, Benjamin, Deputy Under Secretary for Technology, Department 
  of Commerce, Washington, D.C...................................    25

                         QUESTIONS AND ANSWERS

Responses of Mr. Edson to questions submitted by Senators 
  Feinstein and Kyl..............................................    36
Responses of Mr. Hastings and Mr. Cronin to questions submitted 
  by Senators Feinstein and Kyl..................................    52
Responses of Mr. Wu to questions submitted by Senators Feinstein 
  and Kyl........................................................    74

                       SUBMISSIONS FOR THE RECORD

Cronin, Michael, Assistant Commission for Inspections, 
  Immigration and Naturalization Service, Washington, D.C., 
  prepared statement.............................................    78
Edson, Stephen A., Acting Deputy Assistant Secretary of State for 
  Visa Services, Bureau of Consular Affairs, Department of State, 
  Washignton, D.C., prepared statement...........................    90
Fine, Glenn A., Inspector General, Department of Justice, 
  Washington, D.C., prepared statement...........................    99
Fisher, Alice, Deputey Assistant Attorney General, Criminal 
  Division, Department of Justice, Washington, D.C., prepared 
  statement......................................................   108
Hauer, Jerome M., Acting Assistant Secretary for Public Health 
  Emergency Preparedness, Department of Health and Human 
  Services, Washington, D.C., prepared statement.................   125
Lormel, Dennis, Chief, Terrorist Financing Operations Section, 
  Counterterrorism Division, Federal Bureau of Investigation, 
  Washington, D.C., prepared statement...........................   130
Wu, Benjamin, Deputy Under Secretary for Technology, Department 
  of Commerce, Washington, D.C., prepared statement..............   144


 TOOLS AGAINST TERROR: HOW THE ADMINISTRATION IS IMPLEMENTING NEW LAWS 
                  IN THE FIGHT TO PROTECT OUR HOMELAND

                              ----------                              


                       WEDNESDAY, OCTOBER 9, 2002

                              UNITED STATES SENATE,
     Subcommittee on Technology, Terrorism, and Government 
                                               Information,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:10 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Dianne 
Feinstein, Chairman of the Subcommittee, presiding.
    Present: Senators Feinstein, Feingold, and Kyl.

OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM 
                    THE STATE OF CALIFORNIA

    Chairperson Feinstein. Good morning, ladies and gentlemen. 
It is a pleasure for me to welcome you to this hearing of the 
Technology, Terrorism and Government Information Subcommittee.
    I would like to welcome the Ranking Member, Senator Kyl, 
from Arizona, with whom I have worked now for 7 or 8 years 
either as chairman or ranking of this Subcommittee, and also 
the distinguished Senator from Wisconsin, Senator Feingold. We 
are delighted to have you with us this morning as well.
    The September 11 terrorist attacks were a wake-up call for 
our country. In the aftermath of those attacks, it quickly 
became apparent that our approach to combating terrorism was, 
to put it simply, broken.
    In response to the failures that led up to September 11, 
Congress passed a number of key legislative initiatives to beef 
up--well, we are working on beefing up homeland security, 
giving law enforcement a greater ability to go after potential 
terrorists, and improving the protection of our borders.
    Two of the most important of those initiatives were the USA 
PATRIOT Act and the Enhanced Border Security and Visa Entry 
Reform Act, each of which passed within just a few months of 
the terrorist attacks and each of which contained a number of 
key provisions and deadlines to enhance homeland security. It 
is these pieces of legislation that are the topic of today's 
hearing.
    We are here to ask a number of questions of some very 
distinguished panelists. Are the new laws working? Are there 
things we left out? Are there improvements we should make? And 
most importantly, what progress is being made by the 
administration to implement these new items?
    The USA PATRIOT Act was passed by the full Judiciary 
Committee with the knowledge that it had been drafted and 
negotiated rather quickly--only 6 weeks elapsed between 
proposal and passage--and that Congress would need to exercise 
vigorous oversight to prevent abuses and solve unintended 
problems. That is one reason why some of the tools in the USA 
PATRIOT Act will sunset in a few years.
    If the new tools of this Act are working well and are 
effective, clearly we should keep them, and perhaps if needed, 
even strengthen them. If they are being abused, we should 
eliminate them or add new safeguards.
    The reforms in the USA PATRIOT Act were spurred by the fact 
that key agencies in our Government had information about the 
hijackers and their plans before they attacked, but didn't 
share this information and didn't act on it. These failures 
reveal fragmentation of anti-terrorism efforts and the need for 
better information-sharing.
    The lack of investigative and intelligence authority was 
another problem. As Judiciary and Intelligence Committee 
hearings have revealed--and both Senator Kyl and I sit on these 
joint Intelligence hearings--the FBI was unable to obtain a 
search warrant for the computer of accused terrorist Zacarias 
Moussaoui, who was detained by the FBI and the INS in August of 
2001 after his enrollment in flight simulator training for 
jumbo jets raised considerable suspicion.
    Hearings also demonstrated that the terrorists made ample 
use of e-mail and the Internet in planning these attacks. The 
Government clearly needed and still needs adequate tools to 
monitor electronic communications.
    Senator Kyl and I worked together on the encryption issue. 
And yesterday at the hearings, Senator, you might be interested 
to know that I asked the question of former FBI Director Louis 
Freeh as to whether the informal arrangements that he had made 
as a product of some meetings I organized were adequate, and he 
said clearly, no, they are not adequate.
    There are some voluntary agreements between large computer 
companies and the FBI and other security organizations with 
respect to the key issue, but there were real problems and this 
remains a major point of American vulnerability. So I think 
this is something that this committee really should take 
another look at at a future hearing.
    Finally, the disclosure that hijackers entered the United 
States on legal visas showed a need for immigration reform. So 
the PATRIOT Act was an effort to solve some real problems.
    One issue is the ability of agencies to utilize the tools 
we gave them. The FBI can best use these new tools if it has a 
road map to ensure that it knows the nature, the likelihood, 
and the severity of the terrorist threat we face, as well as 
intelligence gaps that still remain.
    The DOJ Inspector General will testify today that the FBI 
has not yet performed a comprehensive written assessment of the 
terrorist threat facing the United States. That came out 
yesterday in our Intelligence hearings as well.
    I don't want to go on and on, but with respect to the 
Border Security Act, there are some things that are important.
    First, enhancing our intelligence capacity is key to 
increased security. Second, our most effective security 
strategy is to keep out those who do us harm, while admitting 
those who come to build America and be good residents.
    There still are five areas of vulnerability in our 
immigration system. We still have an unregulated visa waiver 
program in which 23 million people arrive with little scrutiny 
from 29 different countries. Now, there are 28; Argentina is 
out of the program. Abuse of the visa waiver program is real 
and there are examples of it.
    Second, we have an unmonitored non-immigrant visa system in 
which 7.1 million tourists, business visitors, foreign 
students, and temporary workers arrive. To date, INS does not 
have a reliable tracking system. We need to know how progress 
is going because this remains a huge loophole. We don't know if 
people leave, we don't know where they are in the country, and 
that is 7 million visitors.
    Third, the porous nature of our borders, along with INS' 
unreliable recordkeeping, have contributed to the agency's 
inability to keep out criminals and terrorists. We need to 
continue to strengthen the border, and it can be done.
    Fourth, this is an era where terrorists use satellite 
phones and encrypted e-mail. The INS, our Nation's gatekeeper, 
is considered by many observers to still be in the 
technological dark ages. The agency is still using paper files, 
archaic computer systems, often non-functioning. They don't 
communicate with each other and they do not integrate well with 
other law enforcement systems.
    Fifth, about 50 to 70 percent of the estimated 7 to 9 
million illegal immigrant population are visa overstayers. So 
people who come here illegally, 50 percent of them come with 
visas and then just simply disappear.
    In particular, I am going to be interested in learning more 
about the progress of the State Department, INS, and the 
National Institute of Standards and Technology in, one, 
establishing tamper-resistant visas and passports; two, 
establishing a non-immigrant tracking system using biometric 
data to verify the identity of persons seeking to enter the 
United States--I very deeply believe this becomes a key and 
critical tool in deterring terrorists from entry--three, 
upgrading the information technology systems; and, four, 
building the necessary technology infrastructure so we can 
better protect our ports of entry.
    So this is a big agenda, and I want to stop here and see if 
our distinguished Ranking Member has some comments that he 
might wish to make.

  STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF 
                            ARIZONA

    Senator Kyl. Thank you very much, Senator Feinstein. First 
of all, I am very interested in getting answers to the same 
questions that you have just propounded. Let me add to that 
that I will be asking at least on the first panel some 
questions about what additional tools law enforcement may need. 
The question you asked about the FBI analysis of the threat, I 
think, is an important one to get an answer to. I will be 
curious about the assessment of the sunset provisions in the 
USA PATRIOT Act.
    On panel two, we were going to be talking about the 
response to the various requirements that we established in the 
law. You identified them, but we need to have some very 
forthright assessments of the features of the Border Security 
Act; for example, whether the deadlines in the Act are going to 
be met, where we are in the process of creating the 
interoperable data system that everybody agrees we need.
    As a matter of fact, I note that just this month there is a 
171-page report by the Brookings Institution and Center for 
Strategic and International Studies that concludes that we have 
to have an interoperable data system, the same one that we 
actually already require in the Act.
    How is the State Department responding to the visa issue 
requirement as it pertains to individuals from terrorist-
sponsoring nations? How are INS and the State Department 
responding to the requirement that upon notification, stolen 
passport numbers must be entered into all relevant systems and 
to the requirement that INS must determine that any alien who 
is to be admitted at a port under the visa waiver system also 
be checked against relevant lookout data bases? Those and other 
questions we hold this hearing to determine answers to.
    I also would like to conclude my opening remarks by 
referring to a report that was just out today. It is in the 
National Review magazine, the very latest issue. It is called 
``The Terror Visas'' and it says, ``The applications of the 
September 11 hijackers should have been denied on their face, 
but the State Department approved them. Why?''
    The article goes on to note that in violation of our own 
provisions, Section 214(b), which essentially provides a 
presumption against the granting of visas for would-be 
immigrants, or puts the burden of proof, I should say, on the 
non-immigrant visa applicant to show that he has ties to his 
own country, that he has a stated purpose for the visa, a 
reason for coming back to his country so that he won't be 
staying in the United States and be one of that 50 percent that 
you identified--notwithstanding that presumption, the visa 
application forms of 15 of the 19 September 11 terrorists that 
were studied--all of the applicants among the 15 reviewed 
should have been denied visas under that provision on their 
face.
    The article goes into a lot of detail. I will just mention 
two because they are names we know. Hani Hanjour was first 
denied a visa. He conveniently changed many of the answers on 
the next application. Just 2 weeks later, he got a visa. Khalid 
al-Mihdhar, one of the terrorists who obtained a visa through 
the Visa Express program, simply listed ``Hotel'' as his U.S. 
destination--something that should have prompted the personnel 
in Saudi Arabia to inquire further.
    The bottom line is that apparently, according to this 
report, about 2 percent of the visas were denied, 
notwithstanding this presumption against their granting, for 
the Saudi nationals in the 12 months prior to September 11. The 
worldwide refusal rate for temporary visas is about 25 percent.
    Now, obviously, things have changed. So how about in the 12 
months following September 11, Madam Chairwoman? It has gone 
from 2 percent to 3 percent, according to this article. We will 
want to know from our witnesses why, according to the State 
Department's own documents with the letterhead of the embassy 
in Saudi Arabia, its refusal rate for Saudi nationals in the 12 
months following September 11 is a mere 3 percent. That is 
something that we have got to get into, so I hope that those of 
you who haven't had a chance to review this can do so and 
provide us your comments on it.
    Thank you, Madam Chairman.
    Chairperson Feinstein. Thank you very much, Senator Kyl.
    Senator Feingold has indicated that he has to leave at 
10:45 and so I will ask him to go first for questions. But do 
you have a brief opening statement?
    Senator Feingold. In light of that, I will just wait and I 
appreciate it.
    Chairperson Feinstein. All right, happy to do it.
    Let me quickly introduce the panel. The first panelist is 
Glenn Fine. He is the Department of Justice's Inspector 
General. He is a Rhodes Scholar, a graduate of Harvard Law 
School. He was an attorney specializing in labor and employment 
law prior to going to Justice. He has prosecuted more than 35 
criminal jury trials, handled numerous grand jury 
investigations, and argued cases in the District of Columbia 
and the United States Court of Appeals.
    He and his staff have made a tremendous contribution to the 
Subcommittee's work in developing the Enhanced Border Security 
and Visa Reform Act, and I want to thank you for your 
cooperation.
    The second person is Alice Fisher, of DOJ. She serves as 
the Deputy Assistant Attorney General of the Criminal Division. 
In that capacity, she supervises several Criminal Division 
litigating sections, including the Terrorism and Violent Crime 
Section. That Section has handled all investigations and 
prosecutions relating to the 9/11 terrorist attacks.
    The next person is Dennis Lormel, of the FBI. He joined the 
FBI 26 years ago as a special agent and he now serves as Chief 
of the Terrorist Financing Operation Section of the 
Counterterrorism Division. Immediately following the 9/11 
attacks, he was given the responsibility for establishing and 
coordinating the FBI's comprehensive terrorist financing 
initiative. He also oversees the Multiagency Terrorist 
Financial Review Group, which is responsible for tracking and 
investigating terrorists' financial abilities. So he can update 
us on that.
    Why don't we begin with you, Mr. Fine? If you can possibly 
truncate your statements into 5 minutes, it will give us more 
of a chance to have a discussion back and forth.
    Welcome.

 STATEMENT OF GLENN A. FINE, INSPECTOR GENERAL, DEPARTMENT OF 
                   JUSTICE, WASHINGTON, D.C.

    Mr. Fine. Chairwoman Feinstein, Senator Kyl, members of the 
Subcommittee, thank you for inviting me to testify today 
regarding the Office of the Inspector General's recent audit of 
the FBI's counterterrorism program.
    Last week, our full 131-page classified audit was provided 
to the FBI and congressional committees, including this 
Subcommittee, and we publicly released an unclassified 
executive summary that highlighted our major findings and 
recommendations.
    Our audit was part of a series of reviews that we have 
undertaken regarding Department programs that affect 
counterterrorism and national security issues. The audit 
examined aspects of the FBI's management of its 
counterterrorism resources, focused specifically on, one, the 
FBI's progress toward developing a comprehensive written risk 
assessment of the terrorist threat to the United States; two, 
the FBI's strategic planning as it relates to counterterrorism; 
and, three, the amount of resources dedicated to the FBI's 
counterterrorism program over the past 7 years.
    It is important to note at the outset of my remarks that 
our audit does not purport to assess all aspects of the FBI's 
counterterrorism program or how the FBI handled information 
that may have been related to the September 11 attacks. We have 
initiated a separate review that is examining aspects of the 
FBI's handling of certain intelligence information related to 
those attacks, including the Moussaoui case, the Phoenix 
electronic communication, and other issues.
    The audit that we released last week contains several 
important findings. We determined that the FBI has not 
developed a comprehensive written assessment of the risk of a 
terrorist threat facing the United States, despite its 
statement to Congress in 1999 that it would. We concluded that 
such an assessment would be useful not only to define the 
nature, likelihood, and severity of the terrorist threat, but 
also to identify gaps that need to be addressed. A 
comprehensive written threat and risk assessment would also be 
useful in determining where to allocate attention and resources 
on programs and initiatives to combat terrorism.
    By September 2001, the FBI had developed a draft of what it 
called a terrorist threat report. This report described 
terrorist organizations and state sponsors of terrorism, but 
the draft report did not assess the threat and risk of a 
terrorist attack on the United States.
    Among the report's many omissions were assessments of the 
training, skill level, resources, sophistication, specific 
capabilities, intent, likelihood of attack, and potential 
targets of terrorist groups.
    Nor did the draft report discuss the methods that 
terrorists might use. For example, there was no analysis of 
terrorists' progress toward developing or acquiring chemical, 
biological, radiological, and nuclear weapons, or any 
discussion of what the FBI had learned from its past terrorist 
investigations.
    We identified a number of causes for the FBI not adequately 
addressing these issues. First, no single individual at the FBI 
was accountable for managing the assessment.
    Second, some FBI officials said the FBI lacked the 
analytical capability or resources to complete such a broad 
threat assessment.
    Third, the FBI did not have a system of management controls 
that ensured compliance with GAO or OIG recommendations. Also, 
FBI counterterrorism managers had a tendency to rely on their 
own experience and professional judgment regarding the overall 
terrorist threat and did not value a formal written assessment 
that used a structured methodology.
    We believe that completing the national-level written 
threat assessment is critical to the FBI's counterterrorism 
efforts. This assessment must also include an evaluation of the 
likelihood that specific weapons of mass destruction will be 
acquired or used against American targets and citizens.
    Fully assessing the threat, probabilities, and likely 
consequences of a terrorist attack by different methods will be 
of significant benefit not only to the FBI in allocating 
resources, but also for domestic preparedness efforts and 
counterterrorism programs at all levels of government.
    Our audit also found that the FBI's strategic planning has 
not been guided by an overall strategic-level assessment of the 
threat and risk of terrorist attacks on the United States. The 
FBI's strategic plan has not been updated since 1998 and does 
not conform to the counterterrorism priorities in the 
Department's November 2001 strategic plan, the FBI Director's 
new priorities, or the FBI Counterterrorism Division's approach 
to developing the maximum capacity to deal with the terrorist 
threat.
    We also found that the FBI had not developed a system for 
capturing and using lessons learned from past terrorism 
incidents and operations to improve the FBI's counterterrorism 
capabilities. In addition, the FBI has not established a core 
training curriculum and proficiency standards for these new 
agents working in counterterrorism.
    Our report details the level of resources that the FBI has 
dedicated to counterterrorism and related counterintelligence 
over the last 7 years. While the FBI has indicated that the 
exact figures are classified, I can say that those resources 
have tripled between 1995 and 2002.
    I want to be clear that our findings are not intended to 
criticize the expertise of FBI employees and managers who work 
on counterterrorism matters or the extensive knowledge they 
have developed through their casework and regular discussions 
with the FBI and the intelligence community.
    Our findings also should not be interpreted to mean that 
the FBI has not taken important steps during the past year to 
improve its counterterrorism program. After the September 11 
attacks, the FBI identified as a critical weakness its ability 
to analyze intelligence and has begun taking steps to improve 
its capabilities in this area.
    But we believe the FBI can and must do more. Our audit 
report offers a total of 14 recommendations to help improve the 
management of the FBI's counterterrorism program, including 
recommendations that the FBI prepare an authoritative, written, 
national-level threat and risk assessment of terrorism; 
identify the chemical and biological agents most likely to be 
used in a terrorist attack; develop criteria for evaluating 
incoming threat information and establish a guide for the 
distribution of threat information; build a core of 
professional trained and experienced intelligence analysts for 
assessing and reporting on threats at both the strategic and 
the tactical levels; and close the gap between FBI planning and 
operations by establishing an effective system of performance 
measures and holding FBI managers at all levels accountable for 
achieving those performance goals.
    The FBI responded that it concurred with our 
recommendations and that they provide constructive guidance. It 
described the steps it has taken to address the 
recommendations. We are pleased that the FBI has agreed with 
our recommendations and we look forward to monitoring the FBI's 
progress toward implementing them.
    We believe these recommendations will aid the FBI in making 
the changes set in motion by the FBI Director to move the 
Bureau from a reactive, post-crime investigatory culture to a 
more proactive organization that seeks to identify and deter 
terrorists before they can strike.
    This concludes my statement and I would be pleased to 
answer any questions.
    [The prepared statement of Mr. Fine appears as a submission 
for the record.]
    Chairperson Feinstein. Thanks, Mr. Fine, and again thanks 
for your help to this Subcommittee. We appreciate it.
    Ms. Fisher?

 STATEMENT OF ALICE FISHER, DEPUTY ASSISTANT ATTORNEY GENERAL, 
   CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Ms. Fisher. Thank you, Chairman Feinstein, Senator Kyl, 
Senator Feingold. Thank you for providing me the opportunity to 
testify on behalf of the Department of Justice to inform the 
Subcommittee about the Department's implementation and use of 
the important anti-terrorism provisions in the USA PATRIOT Act.
    I want to thank this Subcommittee's members who helped to 
develop and enact the USA PATRIOT Act so swiftly in the wake of 
last September's attacks on our Nation. As Deputy Assistant 
Attorney General in the Criminal Division, I am personally 
involved in using the tools myself and in working with others 
in the Department in seeing that the tools Congress provided in 
the Act have been used as intended, to enhance the ability of 
law enforcement to bring terrorists to justice.
    The unprecedented and heinous attacks on our Nation, in 
which over 3,000 innocent civilians were killed, occurred just 
over 1 year ago. At that time, the President pledged to the 
American people that we would not relent until justice was done 
and our Nation secure.
    Members of this committee and the Congress in general 
joined the President as key partners in this important 
undertaking. Congress' swift and comprehensive response was to 
develop and pass the USA PATRIOT Act, which provided law 
enforcement with vital new tools and updated those tools 
already at our disposal that have been instrumental in our 
efforts to combat terrorism and the most extensive criminal 
deeds in history.
    One year later, I am pleased to report that we have used 
these tools effectively, aggressively, and I believe 
responsibly. As the Attorney General told this committee in 
July, the Department's single overarching goal since September 
11 has been to prevent future attacks on the United States and 
its citizens.
    In furtherance of that goal, we have been aggressively 
implementing the USA PATRIOT Act from the outset. Law 
enforcement uses the tools in our ongoing cooperative effort to 
identify, disrupt, and dismantle terrorist networks. We are 
expending every effort and devoting all available resources to 
intercept terrorists and defend our Nation.
    Never was this so apparent as last Friday--as the Attorney 
General describing it, a defining day in the war on terrorism--
when law enforcement neutralized a suspected terrorist cell in 
Portland, Oregon, convicted attempted suicide bomber Richard 
Reid, and saw John Walker Lindh, an American captured fighting 
for the Taliban in Afghanistan, sentenced to 20 years in 
prison.
    In the last 6 weeks, we have charged 17 individuals 
involved in terrorist-related activities. In addition to 
Portland, we have charged an individual with attempting to set 
up an Al-Qaeda training camp in Oregon. Tools authorized by the 
USA PATRIOT Act, such as information-sharing provisions and 
enhanced penalty provisions, have been critical in all of these 
cases.
    The PATRIOT Act has aided law enforcement efforts in the 
war on terrorism in four key areas. First, it updated the law 
to reflect new technology. Second, it removed obstacles to 
investigating terrorism. Third, it strengthened criminal laws 
and enhanced penalties. And, fourth, it facilitated increased 
intelligence-sharing, gathering, and analyzing.
    As examples, over the past year the Department has used the 
following important new authorities and tools provided by the 
Act. We have charged a number of individuals under 18 U.S.C. 
2339A and 2339B, which prohibit providing material support to 
terrorists or terrorist organizations and now carry enhanced 
penalties.
    We have used, newly streamlined authority to use trap and 
trace orders to track communications of a number of criminals, 
including the terrorists, kidnappers, and murderers of 
journalist Danny Pearl, as well as identity thieves and a four-
time murderer.
    We have used new authority to subpoena information about 
Internet users' network addresses to track down terrorists and 
computer hackers. We have used newly authorized nationwide 
search warrants for terrorist investigations at least three 
times, including during the ongoing anthrax investigation.
    We have used, on many occasions, provisions in the Act to 
foster an unprecedented level of cooperation and information-
sharing between Government agencies. For example, we have 
disclosed grand jury information on at least 40 occasions.
    We have saved precious time and resources through a 
provision that permits officials to obtain court orders for 
electronic surveillance pertaining to a particular suspect 
rather than a particular device. We have used the provision 
allowing Internet providers to disclose records to law 
enforcement in emergencies preventing risk of life. This 
authority allowed us to track down a student who posted 
electronic bulletin board threats to bomb his high school and 
shoot a faculty member. We have also made sure that the 
prosecutors in the field know what valuable tools Congress has 
provided them by training and through guidance.
    I would like to conclude by thanking the members once again 
of your committee for your efforts in so swiftly giving us 
these tools.
    [The prepared statement of Ms. Fisher appears as a 
submission for the record.]
    Chairperson Feinstein. Thank you very much, Ms. Fisher.
    Mr. Lormel, welcome back to the committee.

    STATEMENT OF DENNIS LORMEL, CHIEF, TERRORIST FINANCING 
 OPERATIONS SECTION, COUNTERTERRORISM DIVISION, FEDERAL BUREAU 
               OF INVESTIGATION, WASHINGTON, D.C.

    Mr. Lormel. Thank you, ma'am. I also appreciate the 
opportunity to participate in this forum today. I have 
submitted a formal statement for the record and I would just 
like to augment that with some comments, and particularly to 
stress the importance of interagency cooperation. Clearly, that 
is important in our mission.
    I would like to commend the Treasury Department, who aren't 
here, for their outstanding efforts in furtherance of 
methodologies being developed for use of the PATRIOT Act and 
working with us, and particularly David Offhauser for his 
leadership role in the Policy Coordinating Committee on 
Terrorist Financing.
    I would like to focus my comments on the progress that we 
are making in terrorist financing investigations and the 
operational benefits that we have specifically derived from the 
PATRIOT Act. I think that will be important for your benefit.
    First, our mission is two-fold. We were formed to 
investigate the events around the 19 hijackers and identify the 
financial infrastructure and flows. We have pretty much 
completed that, and at the same time we set up a template for 
investigations in the future to be much more proactive and 
progressive and predictive. We have adopted a centralized 
approach. We are looking outside the box to develop new 
methodologies in our approaches, and clearly the PATRIOT Act 
really helps us in that regard.
    Our strategies are to conduct full financial analysis of 
terrorist suspects and their financial support structures; 
disrupt and dismantle terrorist funding mechanisms; coordinate 
the joint participation and liaison and outreach efforts to 
exploit financial investigative resources of private, 
government, and foreign entities; utilize the FBI and LEGAT 
expertise in reaching out and fully exploiting those 
relationships; work jointly with the law enforcement, 
regulatory, and intelligence and business communities to 
develop predictive models based on terrorist cell financial 
traits; and conduct data-mining analysis to proactively 
identify terrorist suspects. We are also providing financial 
investigative components to the Counterterrorism Division and 
the overall mission. We are a support component of the 
Counterterrorism Division.
    Our investigative initiatives include support to 
significant terrorism investigations and deployments, and 
strategic investigative targets that we are going after, which 
include Al-Qaeda cells and other cells of Hamas and Hezbollah, 
in particular.
    We are looking at financial institutions, particularly non-
banking financial institutions, the hawalas, the money services 
businesses and others. Clearly, in that regard, the PATRIOT Act 
is a big help to us. We are looking at NGO's and charities, 
fundraisers, facilitators, couriers, and donors.
    We are conducting a number of data-mining initiatives. We 
are looking at undercover possibilities and platforms, clearly 
looking at the Internet, and we have established a 24/7 
financial monitoring capability where we have a network of over 
411 financial institutions involved. Clearly, human 
intelligence and outreach are important.
    We are striving to disrupt the flows of funding to 
terrorists by going back to the donors and forward to the 
strike teams. There are clearly three or four tracks, and I 
will come back to that in questions, if you like, as to how we 
are proceeding in that regard.
    Again, I would like to reiterate the importance of our 
cooperation and coordination particularly with the CIA and 
Treasury, and FinCEN in particular is an important partner for 
us with regard to the PATRIOT Act and the utilization of the 
provisions.
    The benefits that we have derived from the PATRIOT Act--
clearly, on the financial side, the enhanced reporting 
requirements regarding suspicious activities, particularly with 
the non-banking financial institutions; registration 
requirements for licensed money remitters, and this provides us 
with a broader data-mining and investigative avenue to go after 
information.
    The authority to seize terrorist assets has been 
beneficial. The ability to seize foreign bank accounts, or 
funds in foreign bank accounts through correspondent accounts 
here in the U.S. has been helpful. The ability to prosecute 
unlicensed money remitters is going to be very important to us; 
more timely access to reports on currency transactions in 
excess of $10,000; authority for the service of administrative 
subpoenas on foreign bank accounts concerning records of 
foreign transactions.
    Clearly, the sharing of intelligence information and the 
criminal information between us and the CIA, in particular, has 
been very important. The mandated FinCEN establishment of the 
secure network is going to be a tremendous benefit. I believe 
that our operation will be the primary beneficiary from that.
    There are some other things, Senator, but in deference to 
time and Senator Feingold, I will stop here. Again, I can 
expand on this during questioning.
    Thank you very much.
    [The prepared statement of Mr. Lormel appears as a 
submission for the record.]
    Chairperson Feinstein. We certainly want you to. Thank you.
    Senator we will turn to you.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. Thank you, Madam Chairman, and I want to 
commend you and Senator Kyl for holding this very important 
hearing and your tremendous courtesy in letting me go first. I 
really do appreciate that. My opportunity to speak on the Iraq 
resolution is at eleven, so I am grateful.
    One of the most vital tasks Congress has is to ensure that 
the powerful tools we give to law enforcement are used 
effectively and appropriately. I hope that this hearing will 
become part of a vigorous and consistent review of the tools 
Congress has given law enforcement.
    On July 24, I sent a letter to the Attorney General 
requesting a full report on the implementation of the USA 
PATRIOT Act, and asked specific questions about the business 
records, computer trespass, and FISA roving wiretap provisions. 
I still have not received answers to my questions about the use 
of the business records, computer trespass, and FISA roving 
wiretap provisions of the USA PATRIOT Act.
    These provisions deserve close congressional oversight 
because of, among other reasons, the enormous potential 
chilling effect on the First Amendment rights of innocent 
Americans who simply want to buy a book from an online retailer 
or borrow a book from a local public library.
    Nevertheless, I have received the Department's unclassified 
responses to a House Judiciary Committee letter that requested 
information on the USA PATRIOT Act. The Department answered in 
response to many of the questions posed by Chairman 
Sensenbrenner and Ranking Member Conyers that the information 
would be shared with the House Intelligence Committee, but not 
the Judiciary Committee.
    This is not a response, in my view. There is no reason why 
the Department should not share with me or my colleagues on 
this committee or the House Judiciary Committee information 
like the number of times the Government has requested records 
from public libraries, bookstores, or newspapers.
    Congress has an important responsibility to exercise our 
oversight of the Department's application of the USA PATRIOT 
Act, a law that significantly expands the Federal Government's 
power to intrude in the lives of law-abiding Americans. To the 
extent the responses are classified, of course, we have well-
tested procedures for handling that type of information in this 
committee.
    I am still hopeful that I will receive a full and complete 
response to my July letter, as well as copies of the responsive 
material that the Department has apparently conveyed to the 
House Intelligence Committee but has so far refused to share 
with the House and Senate Judiciary Committees.
    I would like to just ask a couple of questions.
    Ms. Fisher, I have heard that the Justice Department is 
gathering proposals from various divisions from within the 
Department for a possible sequel to the USA PATRIOT Act. Could 
you please describe what efforts are being made within the 
Department to seek to broaden the powers of the USA PATRIOT Act 
through additional legislation and what other changes to 
existing law you anticipate the Justice Department will 
propose?
    Ms. Fisher. Thank you, Senator. We have been internally 
within the Justice Department looking at potential proposals 
following up on the PATRIOT Act for new tools, and we have also 
been working with different agencies within the Government and 
they are still studying that. Hopefully, we will continue to 
work with this committee in the future on new tools that we 
believe are necessary in the war on terrorism.
    Senator Feingold. Can you give us some sense of what you 
are looking at?
    Ms. Fisher. At this point, I can't. I am sorry. They are 
studying a lot of different ideas and a lot of different tools 
that followup on information-sharing and other aspects.
    Senator Feingold. I would ask you and the Department to 
provide us with some sense of where they are heading on this as 
soon as possible so that we are not confronted again--and it 
was more understandable last time, of course--with such a brief 
period of time in which to review such a significant series of 
proposals.
    Ms. Fisher. Yes, Senator.
    Senator Feingold. Listening to the witnesses, I am struck 
by the tools being used in the war on terrorism that are not 
being spoken about today. Since September 11, the Justice 
Department has declared and imprisoned two U.S. citizens as 
enemy combatants, and detained people as material witnesses. In 
each of these instances, the Justice Department has opposed 
judicial review and refused to answer congressional questions 
about the affected people.
    I think the rules under the Constitution are pretty simple. 
If you have evidence of criminal misconduct, then you should 
provide people with attorneys, bring them into a courtroom and 
prosecute them. And if you don't have evidence, the 
Constitution dictates that you cannot hold them indefinitely.
    Given the successes that you just, I think, reviewed that 
DOJ has had in criminal cases arising from the war against 
terrorism, what is it about the criminal justice system that 
leads the Justice Department to fear criminally charging the 
accused and prosecuting them in a courtroom?
    Ms. Fisher. I take it that is directed at me.
    Senator Feingold. Please, yes.
    Ms. Fisher. The Justice Department does not fear bringing 
of criminal charges, but it is important to understand that 
these are two separate tracks. ``Enemy combatant'' is something 
that comes under the President's authority as Commander-in-
Chief of our country and it provides the military--and this has 
been upheld by the Supreme Court--with the authority to detain 
combatants that would cause harm to our country.
    Therefore, a determination is made on a case-by-case 
situation whether someone--for example, if you are referring to 
Mr. Padilla or Mr. Hamdi--should be detained as enemy 
combatants under those powers or should be charged in an 
Article III Court. But I will say that even if they are held as 
enemy combatants, they are not held indefinitely, as you 
suggest. In fact, they are held for the duration of the 
conflict.
    Senator Feingold. Well, why was the choice made not to 
charge them in a criminal proceeding? What is it about them 
that means that they can't be charged in a criminal proceeding?
    Ms. Fisher. Well, I wouldn't comment on saying that they 
can't be charged. It often may be the case that you could 
qualify as both an enemy combatant and be charged in a criminal 
Article III proceeding, such as John Walker Lindh.
    However, in this case when the Department and other aspects 
of the Government looked at the facts and looked at the 
national security interests and the information available, it 
was the Commander-in-Chief power utilized by the President to 
detain these two individuals as enemy combatants.
    Senator Feingold. I understand that is the decision, but 
let me just say that I think it is deeply troubling to many 
Americans to not really understand why the decision was made. I 
understand that the decision was made, but given the lack of 
rights and procedures that are associated with this rather 
startling enemy combatant concept, I think that it would be in 
the interests of the administration to provide a better 
explanation of why this rather unusual procedure is used.
    Finally, Mr. Fine, pursuant to Section 1001 of the USA 
PATRIOT Act, your office submitted a report concerning 
complaints alleging abuses of civil rights and civil liberties 
by employees and officials of the Justice Department covering 
the period from October to June 2002.
    According to the report, there were 458 complaints 
suggesting a USA PATRIOT Act-related civil rights or civil 
liberties connection. These complaints included charges of 
excessive force, illegal detention, and a denial of the right 
to counsel.
    What is the status of the IG investigation and what can you 
tell us about the merits of the complaints that you have 
investigated?
    Mr. Fine. Senator Feingold, I can tell you that we have a 
number of ongoing investigations, both criminal and 
administrative. We have also referred several of the 
allegations to other agencies, including the FBI, which is 
reviewing and investigating some of them.
    In addition to the individual ongoing investigations, we 
also have a review that tries to look at it in a systemic way. 
So we have looked at the treatment of special-interest 
detainees at two facilities, the Metropolitan Detention Center 
in Brooklyn and the Passaic, New Jersey, facility, looking at 
issues such as their access to counsel, the conditions of 
confinement, the timing of charging decisions. We are pretty 
far along in that review and we hope to have a comprehensive 
review done in the near future. So we are working hard on that 
and look forward to having findings soon.
    Senator Feingold. You don't have any comment on the merits 
of the complaints at this point?
    Mr. Fine. I wouldn't want to comment on an ongoing 
investigation.
    Senator Feingold. My time, I think, has expired, but I 
would ask the Justice Department--Ms. Fisher, I really hope you 
can get an answer to my letter of July, and if there is any 
information that needs to be presented in a classified manner, 
so be it. I have that clearance; others on my staff do. I 
surely think that the members of the Senate and the House 
Judiciary Committees are entitled to answers to those 
questions.
    I do thank all the witnesses, and I especially thank the 
Chair for letting me do this.
    Chairperson Feinstein. Thanks, Senator.
    My first question is of Ms. Fisher and I want to just sort 
of set this question in some context, if I might. In June, the 
Department of Justice announced that a man was being held. His 
name was Abdullah al-Muhajir. He was 31, a former Chicago gang 
member who was born Jose Padilla, in Brooklyn. He was raised as 
a Roman Catholic, but he converted to Islam and began using a 
new name.
    Mr. Padilla traveled to Pakistan and received training from 
Al-Qaeda in the wiring of explosives, intelligence officials 
have said. While he stayed at an Al-Qaeda safehouse in Lahore, 
he conducted research on radiological devices on the Internet.
    Now, in the PATRIOT Act we changed the definitions of pen 
register and trap and trace devices to include devices that 
track dialing, routing, addressing, or signaling information. 
For that might be interested, pen registers and trap and trace 
devices are like called I.D. on a telephone. They record the 
date, the time, and the phone number of outgoing and incoming 
calls, but they don't reveal their content.
    This change allows the tracking of e-mail and Internet 
usage rather than just phone calls. However, e-mail routing 
information and Web addresses provide a lot more information 
than a telephone number. The e-mail address 
johnsmith(at)yahoo.com identifies a person, not a fixed piece 
of equipment, and a Web address such as 
www.plannedparenthood.com provides information about a person's 
thoughts and interests. To solve this problem, the PATRIOT Act 
requires that pen registers and trap and trace devices do not 
capture the content of any communication.
    My question to you is how extensively has DOJ been using 
pen registers and trap and trace devices to track e-mail and 
Internet usage, and how do you ensure that these devices do not 
capture the contents of any communication?
    Ms. Fisher. Thank you, Senator. We do share your concern 
about content and we have not used the tools, as we should not, 
to gather content information. But the pen/trap and trace 
statute and the tool authorized by the PATRIOT Act has been 
used on several occasions.
    Although I don't have the particular number of times at my 
fingertips, it was used in the Danny Pearl case. It was used 
with regard to other terrorist conspirators, one major drug 
distributor investigation, identity thieves, an investigation 
to track down a four-time murderer, as well as a fugitive who 
was fleeing using a false passport.
    So we have been using this tool and we have been cautious 
not to get into content or the Web addresses, as you suggest.
    Chairperson Feinstein. So it has been a successful tool?
    Ms. Fisher. Absolutely.
    Chairperson Feinstein. Do you see any violations of 
privacy?
    Ms. Fisher. No. In fact, I am not aware of any violations 
of privacy. This tool has been used very carefully. The Deputy 
Attorney General issued a memo clearly delineating the 
Department's policy with regard to avoiding over-collection and 
avoiding the collection of content in the use of this 
authority.
    Chairperson Feinstein. Thank you.
    Mr. Lormel, I want to give you an opportunity to expand on 
the strike aspect that you spoke about in your opening 
comments, and this, of course, relates to Title III of the 
PATRIOT Act which focuses on money laundering. The title 
provided for increased information-sharing. It allows 
suspicious activity reports received by the Treasury Department 
to be shared with intelligence agencies, and it authorizes the 
sharing of surveillance information between law enforcement and 
intelligence agencies.
    Perhaps you can bring us up to date on any new activities 
that you are taking in that regard, how well this is working 
and what you are finding.
    Mr. Lormel. Yes, Senator. Some of our agents are assigned 
over the CIA Counterterrorism Center, and conversely they have 
got people assigned with us. As I mentioned, we work very 
closely with FinCEN, and in that regard the sharing of 
information back and forth between us and the CIA has been 
outstanding.
    I don't have any anecdotes that I can really get into in 
this forum.
    Chairperson Feinstein. You don't have any nuggets like you 
had last time you appeared before us?
    Perhaps I should ask about that. Have banks done anything 
about the hijackers?
    Ladies and gentlemen, six of the hijackers went into a bank 
to open an account, Mr. Lormel informed us at one of our 
earlier hearings, and in doing so they just made up Social 
Security numbers.
    Mr. Lormel. Well, in regard to the Social Security numbers, 
let me clarify that. The numbers that were used weren't 
necessarily made-up numbers, but they were on the application 
in the Social Security field itself. So they are numbers that 
for automation purposes they had to fill in, and in a couple of 
instances Social Security numbers were listed which may have 
been FAA numbers, as opposed to Social Security. But in the 
instances where the banks themselves listed the numbers, it was 
basically for administrative purposes in the use of those 
particular numbers.
    But going to the greater question of the cooperation with 
the banks, a comment I wanted to make was some observations, 
Senator, that I have seen in implementation of the PATRIOT Act. 
In anticipation of the implementation between the banking 
community, and particularly the non-banking financial 
institutions, their concern about consequence and their concern 
about doing the right thing in terms of reporting and working 
closer with us has been outstanding.
    That includes forums that we have had through FinCEN, and 
independent of FinCEN where we are trying to promote the use of 
the PAC system that FinCEN is implementing. We believe that 
that is going to enable us in terms of the data-mining to get 
information in an electronic format that we will have more 
timely access to and more timely responsiveness in terms of 
following up on leads in investigations.
    Chairperson Feinstein. To date, tell us what you are able 
to do with respect to the hawala method of transferring funds 
to terrorist organizations.
    Mr. Lormel. In regard to that, let's go beyond the specific 
hawala, but into that whole informal mechanism. The fact now 
that there are licensing or reporting requirements helps us 
tremendously. We are going to have a conference in the next few 
weeks where we are bring prosecutors together with our agents 
to determine the best vehicles out there for proceeding with 
prosecutions.
    We have had some success in the disruption of money flows, 
and I think there are intelligence reports that will support 
that. In terms of the actual hawalas and that informal 
networking, the registration requirements through FinCEN are 
enabling us to identify who is a licensed money remitter that 
is outside the normal banking confines and who are unlicensed 
and perhaps illegal. It enables us to set up strategies and 
methodologies on both of those tracks, so we are proceeding 
accordingly.
    Chairperson Feinstein. My time is up.
    Senator Kyl?
    Senator Kyl. Let me begin with Mr. Fine. The threat 
assessment with regard to terrorism that you strongly suggest 
the FBI should get on with producing, you said, was hampered to 
some extent by, at least according to the FBI, a lack of 
analytical capability within the FBI. Is that correct?
    Mr. Fine. Yes.
    Senator Kyl. What would it take to correct that deficiency 
for the FBI?
    Mr. Fine. I think the FBI needs to focus attention and 
energy on developing a core of trained professional analysts. 
They have some, but they need more, and I think the FBI 
recognizes that. In the past, it has not valued it as much as 
it perhaps could have and should have.
    There has been a focus in the past on reactive crime-
solving. Agents' work has been valued, but the more strategic, 
analytical, overarching analysis that needs to be done and 
should be done hasn't received as much attention in the past. I 
think it needs to receive more attention in the future.
    Senator Kyl. I know FBI Director Mueller immediately 
brought some CIA analysts over to the FBI. I know he doesn't 
want to raid the CIA, but that kind of thing could at least in 
the short term help to augment his cadre, could it not?
    Mr. Fine. Yes, it could. He has brought over 25 CIA 
analysts as detailees that can help in the short term. In the 
long term, I think the FBI needs to develop its own permanent 
professional analyst capabilities.
    Senator Kyl. If they were able to engage in this analytical 
discipline, it would also require the integration of their 
field office personnel and the information that they derive 
from that with the other aspects of the intelligence community, 
including the CIA, because you can't do analysis without a full 
knowledge integration. So that in itself would be a useful 
exercise for further analytical capability at the FBI, would it 
not?
    Mr. Fine. Absolutely. The FBI can't do it on its own. It 
needs to use intelligence and information from throughout the 
Government and elsewhere to factor into its analysis. It did 
try, as we indicated in our report, to look into the threat of 
weapons of mass destruction, but it didn't do it with all the 
information that it should have. It has to reach out outside 
the FBI for expertise that can help them in this area.
    Senator Kyl. I think we are all aware of the fact that the 
FBI had some really good nuggets of information, but they 
weren't brought together in a central place. This call that you 
are making for an analytical document which would then 
presumably be ongoing is a very important thing.
    I want to ask Mr. Lormel, I gather the FBI has acknowledged 
the need for this. I suspect that you are not in a position to 
tell us why it hasn't been fully implemented, but at least 
perhaps you could confirm to us that you will help convey the 
message to those with whom you work that we think this is an 
important thing to do, to move on with very quickly, and to let 
us know what you need, if anything, that Congress can help to 
provide in order to get this done.
    Mr. Lormel. In that regard, Senator, I am aware that we are 
taking steps to move forward. For instance, we have, I believe, 
240 analysts in some stage of backgrounds to come on board. 
Clearly, the Director deserves a lot of credit for his vision 
to integrate the analytical component with the operational 
component, and also the third leg, the financial component. Our 
financial analysts and things are going to be integrated into 
that process.
    There are strategic reports that are now being drafted that 
the analytical component, the people from the agency, are 
involved in in finalizing which will be going forward, I 
believe, in the very near future.
    Senator Kyl. Well, just to conclude this point, be sure and 
convey to those with whom you work our view that this is a very 
important aspect of the FBI's contribution to the war on 
terror. The recommendations of the Inspector General should be 
closely examined and if there is any disagreement with any of 
that, let us know. Otherwise, we will expect that it will be 
done with some alacrity.
    Mr. Lormel. Again, Senator, if I may, we embrace those 
recommendations and I know that the Director is looking to 
continuously improve our performance.
    Senator Kyl. Let me just make one other point. We heard 
testimony yesterday from Louis Freeh, and I remember him coming 
before this very Subcommittee three and 4 years ago asking us 
for authority and Senator Feinstein and I supporting those 
authorities. We couldn't get total cooperation from other 
members of the Senate and the House, and as a result it wasn't 
until after September 11 that a lot of what he was asking for 
was actually done, like the trap and trace, for example, was a 
good example, the roving wiretap. Those are authorities he 
asked for long ago.
    He also asked for more agents. He asked for something like 
1,800 agents and I think we gave him 76 over a 3-year period, 
or at least numbers in that general realm. So part of the 
problem is us not necessarily providing what is needed and if 
there is something needed here to get this job done, we expect 
to be told.
    The red light is on. Let me just close with one question 
for Ms. Fisher.
    In response to Senator Feingold, you indicated that there 
was an ongoing review of needs within not just the Department 
of Justice but other agencies of the Government to augment what 
has already been done in the USA PATRIOT Act, and that that 
study would produce a set of recommendations, hopefully early 
so that we can act on that very early next year. That last part 
I am adding to your testimony.
    In this regard, I am especially interested in having you 
look at the provisions--I think there are some 14 of them in 
the PATRIOT Act--that will sunset in 3 years. Unless you are 
aware of specific problems that have arisen with the 
application of those provisions, several of which are very 
important, I would hope that you could assess the desirability 
of making those provisions permanent as part of the 
recommendations for legislative reform.
    Your comment?
    Ms. Fisher. We certainly will. As we all know, we don't 
expect the war on terrorism to sunset in the near future, 
unfortunately, and we certainly are using all the tools and we 
don't believe that they should sunset. We have put them to good 
use, and so making that part of our recommendations, I think, 
is a very good idea.
    Senator Kyl. All right. Then, finally, I am kind of 
catching you off guard here, but Senator Schumer and I have an 
amendment that we would like to get adopted sometime before 
Congress adjourns that would slightly modify the FISA warrant 
procedure to add to the definition ``a foreign person.''
    This perhaps would pertain to Moussaoui, but I don't ask 
for your comment on that. Where you have an individual you 
believe is engaged in terrorism, but you can't necessarily 
connect him to a specific terrorist organization or foreign 
power, it would still permit the warrant to be obtained to 
investigate further.
    Previous witnesses representing the Department of Justice 
or the FBI have testified in favor of that. Is that still the 
position of the Department?
    Ms. Fisher. Absolutely. The Administration supports your 
bill on that. We think that it is an important and needed fix.
    Senator Kyl. Thank you.
    Chairperson Feinstein. To you, Ms. Fisher, I need to say 
one thing. I authored legislation that was signed into law in 
1999 that mandates up to 20 years in prison for anyone who 
distributes bomb-making information, knowing or intending that 
the information would be used for a violent Federal crime. That 
is 18 U.S.C. 842P.
    This law has been on the books for 3 years. It has not been 
enforced. We know that bomb-making information has been found. 
We know that in Afghanistan and we know that it has been found 
from the Internet. We know that its intent is clearly for 
terrorists to use it to violate a Federal law.
    Federal prosecutors have only charged a single person under 
the statute, and then these charges were quickly dropped for 
lack of evidence. I see this as an indispensable supplement for 
anti-terrorism tools. Terrorist groups, we know, are not only 
actively searching out bomb-making information, but they are 
even distributing it for recruitment and instructional 
purposes. If they do that, you have got them for 20 years.
    Why don't you use the law?
    Ms. Fisher. Well, Senator, you raise a good point. Clearly, 
you are right. We do know that there are individuals out there 
that are doing this kind of activity with regard to bomb-making 
materials. I can't speak to the one case where it was used and 
dropped. We can certainly take a fresh look at that statute 
and, where appropriate, charge it.
    Chairperson Feinstein. One Al-Qaeda videotape consisted of 
a lab session showing the materials and processes needed to 
make TNT and high-explosive bombs. So you have a cause, and 
this ties in with my second question and I was very surprised 
to see this.
    My staff did some research and according to an analysis of 
DOJ records by the Transactional Records Access Clearinghouse, 
associated with Syracuse University, from October 2001 to March 
2002, Federal prosecutors turned down 55 percent of referrals 
in international terrorism cases and 46 percent of referrals in 
domestic terrorism cases.
    What is surprising about this is the likelihood was to 
decline prosecution for terrorism cases to a much greater 
extent than for other cases. The declination rates for 
referrals in non-terrorism cases during the same period was 32 
percent.
    Why is that?
    Ms. Fisher. Well, Senator, a couple of points on that. 
First, over the past year, and certainly since September 11 
when I think you said the data started, I have been involved in 
overseeing terrorism prosecutions. Terrorism prosecutions, 
regardless of where they are in the U.S. Attorney's office, 
come up for approval through Main Justice and I am not aware of 
one terrorism case that we have declined.
    Chairperson Feinstein. Can I ask that perhaps you then 
research it and give the committee a response in writing? I 
will be happy to give you the question in writing right now.
    Ms. Fisher. Sure.
    Chairperson Feinstein. Perhaps you would answer it in 
writing within the next week.
    Ms. Fisher. OK. I am aware that there is a definitional 
issue of how the FBI characterizes what is a terrorism case, 
and I know that the FBI is working with the Executive Office of 
U.S. Attorneys on these statistics to figure out what the 
definitions are.
    It may be that included in those numbers are intelligence 
cases which don't necessarily go to the Criminal Division 
because they are continuing as intelligence operations. It also 
may be that something is catalogued as a terrorist 
investigation initially, but later it is determined that it has 
no links to terrorism and it is some other type of charge, and 
so therefore it is not pursued as a terrorism case.
    But it is important to note that I am not aware, and I 
don't think that the people at Main Justice are aware of any 
terrorism cases, certainly no international terrorism cases 
where we have declined prosecution or stepped away from that. 
We are very aggressively pursuing those cases, and I will be 
happy to look at your question and get back to you with an 
answer.
    Chairperson Feinstein. Thanks so much.
    Senator do you have anything else?
    Senator Kyl. No.
    Chairperson Feinstein. Well, let me just thank the panel 
very much. You have been very gracious with your time and also 
with your expertise, and we appreciate it. Thank you.
    We will now go to the Visa Reform and Border Entry Act, and 
I will introduce the witnesses. We have Scott Hastings, from 
INS. Scott is the Associate Commissioner for the Office of 
Information Resources Management with INS. He is responsible 
for the information technology programs, including all 
electronic enforcement technology programs. He is also 
responsible for examining the role of Federal information 
technology organizations and their future configurations and 
structure.
    Michael Cronin, also of INS, serves as Assistant 
Commissioner for Inspections. He is responsible for program and 
policy development relating to INS operations at our Nation's 
ports of entry. He is the principal point of contact between 
the INS and other Government agencies active at ports of entry 
as well as numerous foreign governments.
    Stephen A. Edson from the State Department began his work 
with State in 1981. He now serves as the Acting Managing 
Director of the Visa Services Directorate with the Department's 
Bureau of Consular Affairs. He has served in the State 
Department all over the world, including Thailand, India, and 
Japan.
    Mr. Benjamin Wu represents the Commerce Department. He is 
the Deputy Under Secretary for Technology at that department. 
In that role, he supervises policy development and direction 
among numerous Federal offices that work on technology policy, 
including the National Institute of Standards and Technology, 
which was directed in the USA PATRIOT Act and the Enhanced 
Border Security and Visa Entry Reform Act to work with INS and 
the State Department to develop a biometric standard for 
immigration documents. Clearly, we want to know where that is 
today.
    So if I might, perhaps I could begin with you, Mr. 
Hastings. If you gentlemen would confine your remarks to 5 
minutes, go right down the line, and then we will be able to 
ask you some questions.

    STATEMENT OF SCOTT HASTINGS, ASSOCIATE COMMISSIONER FOR 
       INFORMATION RESOURCES MANAGEMENT, IMMIGRATION AND 
 NATURALIZATION SERVICE, WASHINGTON, D.C.; AND MICHAEL CRONIN, 
    ASSISTANT COMMISSIONER FOR INSPECTIONS, IMMIGRATION AND 
            NATURALIZATION SERVICE, WASHINGTON, D.C.

    Mr. Hastings. Madam Chairman, the INS has prepared a single 
statement and Mr. Cronin will summarize, so I will defer to 
him.
    Chairperson Feinstein. That is fine. Thank you.
    Mr. Cronin. Thank you, Madam Chairwoman, and Senator Kyl. 
Thank you very much for the opportunity to participate in this 
hearing concerning coordinated information-sharing among 
Federal agencies in the war on terrorism.
    Since September 11, INS has witnessed an unprecedented 
increase in information flow among agencies. We strongly 
recognize our need for vital enforcement and intelligence data, 
and we are committed to providing accurate and timely 
immigration data to other agencies that require it.
    We are also strongly committed to the use of this data in a 
fashion that improves the security of our borders, while 
limiting disruption to legitimate travel and trade. We 
appreciate the support and the leadership of the Congress for 
this information-sharing effort, especially as embodied in the 
USA PATRIOT Act and the Enhanced Border Security Act.
    The Office of Homeland Security, in conjunction with the 
Office of Management and Budget, is leading critical 
initiatives to improve and monitor information-sharing among 
key Federal agencies, and to ensure the timely provision of 
critical data to State and local law enforcement and emergency 
management agencies. We are also working internationally to 
develop new and better ways of sharing information that will 
support intelligence and enforcement efforts.
    INS has been engaged in broad-based information-sharing 
efforts since long before the terrorist attacks of September 
11. For more than a decade, INS has joined with the U.S. 
Customs Service in development and management of the 
Interagency Border Inspection System, or IBIS, which is the 
principal border lookout system containing data from more than 
20 Federal agencies, as well as real-time linkage to the 
National Crime Information Center, or NCIC.
    Since the late 1990's, INS has been working with the 
Department of State to develop and expand the Data Share 
Project, under which visa data is transmitted electronically 
through IBIS to our ports of entry. In January 2002, the 
Consolidated Consular Data base was made available to ports of 
entry. Through use of this system, inspectors can access non-
immigrant visa information, as well as a photograph of a 
rightful bearer of a visa.
    Before and after September 11, INS has worked with the U.S. 
Marshals Service and the Federal Bureau of Investigation to 
include wanted persons' fingerprint data in the INS fingerprint 
system, IDENT. For nearly a decade, INS has received data from 
the State Department TIPOFF data base of suspected terrorists. 
Each of these systems and projects has led to significant 
enhancement of the security of our borders through the 
interdiction or apprehension of numerous terrorists and 
criminals.
    Also related to and supported by the USA PATRIOT Act and 
the Enhanced Border Security Act are several key programs 
designed to manage and track the entry, stay, and departure of 
foreign visitors.
    INS has formed an interagency project team with 
representatives from the Departments of State, Treasury, 
Transportation and Justice to effect the creation of the 
statutorily mandated entry/exit tracking system. This effort 
has led to implementation of electronic tracking of the arrival 
and departure of visa waiver program travelers as of October 1 
of this year, with full implementation for all foreigners 
arriving by air anticipated as of January 1, 2003. This 
information will be fed automatically into the Arrival 
Departure Information System, ADIS, which will be the 
repository for arrival and departure data, eventually replacing 
the current non-immigrant information system.
    INS has also very quickly implemented the National Security 
Entry/Exit Registration System, under which certain non-
immigrant aliens who may potentially pose a national security 
risk are fingerprinted and interviewed upon arrival in the 
United States and registered periodically if they remain in the 
United States for a period of 30 days, and again if they remain 
for more than 1 year. Registration information is also updated 
in the event of changes of address, employment, or schools, and 
again upon departure from the United States.
    The legislation we are discussing today mandates use of 
biometrics in various documents and processes. INS is awaiting 
the results of evaluation and development of biometric 
standards by the National Institute of Standards to proceed to 
develop approaches to this statutory direction.
    In the interim, we are working with the Departments of 
Justice and State to design and evaluate processes and 
technologies which could potentially be used in the integration 
of biometric checks and border operations. Next week, we will 
begin deployment of border-crossing card readers to selected 
ports of entry for test and evaluation prior to a large-scale 
procurement of readers for all ports of entry.
    The INS has made significant progress in development and 
implementation of the Student and Exchange Visitor Information 
System, and we are confident that we will meet the January 1, 
2003, deadline for full implementation established in the USA 
PATRIOT Act, with gradual, incremental implementation of use of 
this system by schools throughout 2003.
    In May 2000, INS initiated a project to develop a business-
driven enterprise architecture. The result is a multi-year 
modernization plan which provides a blueprint and build-out 
plan for modernizing information systems and technical 
infrastructure.
    This clearly has been a broad brush over a great deal of 
activity in the area of systems development and information-
sharing. Once again, we thank the committee for this 
opportunity to testify on these important issues and we welcome 
any questions.
    [The prepared statement of Messrs. Hastings and Mr. Cronin 
appears as a submission for the record.]
    Chairperson Feinstein. Thank you very much. I appreciate 
it.
    Mr. Edson, do you have comments?

    STATEMENT OF STEPHEN A. EDSON, ACTING DEPUTY ASSISTANT 
   SECRETARY OF STATE FOR VISA SERVICES, BUREAU OF CONSULAR 
         AFFAIRS, DEPARTMENT OF STATE, WASHINGTON, D.C.

    Mr. Edson. Madam Chair, Senator Kyl, thank you for allowing 
me to speak this morning concerning the progress of the 
Department of State's efforts to implement the provisions of 
the Enhanced Border Security and Visa Entry Reform Act of 2002.
    In implementing the immigration laws of the United States, 
the Department of State has no higher priority than our 
national security. We participate with the border security 
agencies and the broader law enforcement and intelligence 
communities in a wide range of activities, including but not to 
limited to the visa process, to ensure the greatest possible 
cooperation in our joint efforts to secure our borders and 
fight terrorism.
    Although these relationships are longstanding, they have 
been significantly expanded in the past year. We are dedicated 
to meeting the opportunities provided by the Enhanced Border 
Security and Visa Entry Reform Act, both to build on our 
efforts to date and to break new ground in our common search 
for a safer United States.
    In my written remarks, I have provided a comprehensive 
review of our efforts by section in the implementation of the 
Act. Now, I would like to just provide some highlights.
    Significant progress has been made in the past year to 
increase the amount of information available to visa officers 
overseas, and conversely to INS and other law enforcement and 
intelligence agencies in the United States. The State 
Department's Consular Lookout and Support System, CLASS, is a 
principal example of this progress.
    We have been able to leverage the provisions of the 
Enhanced Border Security Act and the USA PATRIOT Act to make 
CLASS an evermore effective tool for fighting terrorism. CLASS 
uses sophisticated search algorithms to match lookout 
information to individual visa applicants. Every single 
applicant is run through this system. CLASS is only as good, 
however, as the data it contains, and I am happy to report that 
post-9/11 this situation has improved dramatically.
    CLASS records have doubled in the past year. More than 7 
million names of persons with FBI records have been added to 
CLASS by August of 2002, augmenting the 5.8 million name 
records that we already had from State, INS, DEA, and 
intelligence sources. These NCIC records include the FBI's 
Violent Gang and Terrorist Data base, a particularly valuable 
resource.
    Twenty thousand Customs serious violator name records have 
been added to CLASS since September 11, 2001. CLASS now has 
over 78,000 name records of suspected terrorists, up 40 percent 
in the past year. Most of this information has entered CLASS 
through TIPOFF, a program run through the Department's Bureau 
of Intelligence and Research that acts as a clearinghouse for 
sensitive intelligence information provided by other agencies. 
Since September 11, 2001, approximately 20,000 new terrorist 
lookouts have entered CLASS through TIPOFF alone.
    Chairperson Feinstein. Say that again, would you?
    Mr. Edson. Twenty thousand new entries into CLASS 
concerning terrorists that we have gotten through TIPOFF in the 
past year.
    The State Department's CLASS lookout system has used for 
some time now linguistically sensitive algorithms for checking 
Arabic and Russo-Slavic names. A Hispanic algorithm is 
developed and ready for implementation, and an algorithm for 
East Asian languages is under study. We have been a leader in 
the development of linguistic logic for search purposes, and we 
are actively engaged with other U.S. Government agencies to 
help share this expertise as we work to expand those language 
algorithms.
    The State Department currently shares electronic data with 
other agencies, including INS, and is rapidly expanding 
information-sharing arrangements through the law enforcement 
and intelligence communities. Our CLASS data base is already 
interoperable with the Interagency Border Inspection System, 
IBIS, that INS uses. In fact, we have been sharing information 
between CLASS and IBIS since 1995.
    The Department's systems use open, flexible architecture 
consistent with industry standards in order to facilitate 
information-sharing. All non-immigrant and immigrant visa 
activities at all of our posts worldwide are replicated back to 
a consular consolidated data base in Washington at 5-minute 
intervals, providing the Department, INS, and other U.S. 
Government agencies with a near-real-time window into this 
work.
    We in the State Department are actively participating in 
the design and the development of the Student Exchange and 
Visitor Information System, SEVIS, the permanent system that 
will contribute to our national security as it adds integrity 
to the student and exchange visa-issuing process.
    At the same time we are working on SEVIS implementation in 
response to a separate legislative mandate, the Department has 
launched the Interim Student and Exchange Authentication 
System, ISEAS, which will provide for electronic verification 
of student and exchange visitor visas until SEVIS is fully 
implemented.
    As of October 7, nearly 3,000 educational institutions and 
exchange program sponsors had entered approximately 72,000 
records into ISEAS. Two hundred and thirteen visa-issuing posts 
around the world had used this system to verify 9,000 cases. 
ISEAS has provided both the Department and INS a better system 
to verify incoming foreign and exchange students until SEVIS 
becomes fully operational.
    This concludes my testimony and I would be happy, of 
course, to take any questions.
    [The prepared statement of Mr. Edson appears as a 
submission for the record.]
    Chairperson Feinstein. Thank you very much.
    Mr. Wu?

     STATEMENT OF BENJAMIN WU, DEPUTY UNDER SECRETARY FOR 
      TECHNOLOGY, DEPARTMENT OF COMMERCE, WASHINGTON, D.C.

    Mr. Wu. Good morning, Madam Chairwoman and Ranking Member 
Kyl. I appreciate the opportunity to update you on the 
Department of Commerce's implementation of the USA PATRIOT Act 
and the Enhanced Border Security and Visa Reform Act, of which 
the bulk of the work is performed by our Technology 
Administration's National Institute of Standards and 
Technology.
    NIST is our Nation's oldest Federal laboratory and the only 
laboratory with the express mission of working closely with 
industry to develop measurements, standards, and a variety of 
technologies. Consequently, NIST has been working with the 
biometrics industry and other Federal agencies for years, and 
has especially been in very close collaboration over the past 
year in meeting its statutory requirements to develop a 
biometric standard for visas and passports.
    In this Congress, Congress provided by statute appropriate 
tools required to intercept and obstruct terrorism in our 
country. These laws call for the Departments of Justice and 
State, working with NIST, to develop and certify technology 
standards to be used in visa control systems.
    NIST has responsibility to develop and certify a technology 
standard that can be used to verify the identity of persons 
applying for a U.S. visa or using a visa to enter the country. 
The Department of Justice and the Department of State also 
expect NIST to certify the accuracy of specific government and 
commercial systems being considered for use in the visa system.
    At this time, biometrics that are included in NIST studies 
are face and fingerprints, including the ten-finger rolled 
fingerprint system, the flat fingerprint matching system, and 
also a single flat fingerprint for verification as well as 
face-based verification.
    NIST has received large-scale data bases from both the INS 
and the State Department, and is conducting tests to be used 
for setting standards for certifying the accuracy of proposed 
fingerprint and facial biometric technologies.
    NIST is also establishing interoperability standards for 
use between systems for both identification and verification 
functions. This is being done jointly with industry through 
the----
    Chairperson Feinstein. Can I just stop you there? We heard 
testimony, oh, maybe a year ago about all these biometric cards 
that went on to the border between our country and Mexico; I 
think 5 million, but no readers for those cards.
    Is the biometric system that you are now talking about the 
same as the system that is on those cards, or is this a 
different one?
    Mr. Wu. The system that we are using could be used. My 
understanding is that it could be used for implementation with 
the system that we already have, but I am not clear as to 
whether or not it is the exact same system that you are 
referring to. But we can certainly check on that.
    Chairperson Feinstein. It seems to me you would want one 
system that is used all over so that all readers can gibe with 
the system.
    Mr. Wu. That is the goal ultimately to have one system that 
is interoperable that can be used with multi-systems, and 
ideally even using these standards and applying them 
internationally so we have a worldwide network for verification 
and authentication for visas and border control.
    Chairperson Feinstein. Please continue.
    Mr. Wu. Thank you.
    This is being done jointly with industry through the 
International Committee for Information Technology Standard's 
Biometric Committee in trying to achieve this international 
interoperable standards system.
    NIST has also contributed greatly in laying the foundation 
for interoperable data exchange for one of the primary 
biometric technologies, and that is fingerprint technology. 
NIST, working closely with the FBI, State and local law 
enforcement agencies, and product vendors of fingerprint 
classification systems, recently completed a joint American 
National Standards Institute, ANSI, and NIST standard for the 
data format for exchange of fingerprint information. This 
standard promotes the exchange of fingerprint data among 
different law enforcement agencies using systems from different 
vendors.
    NIST is also spearheading the Face Recognition Vendor Test 
2002 which is evaluating automated facial recognition systems 
that eventually could be used in the identification and 
verification processes for people who apply for visas who visit 
the United States.
    The significance of the Face Recognition Vendor Test 2002 
is evident by its large number of sponsors and supporters. This 
includes 16 Federal Government departments and agencies. The 
current evaluation builds on the success of NIST personnel who 
have had success in evaluating face recognition systems over 
the past decade.
    This evaluation methodology developed for FRVT 2002 will 
become a standard for evaluating other biometric technology and 
we will learn precisely how accurate and reliable these systems 
are. Fourteen companies are currently participating in FRVT 
2002, and we deliberately designed a tough test that involved 
matching extremely challenging real-world images that require 
participants to process a set of about 121,000 images and match 
all possible pairs of images to this image set. In other words, 
this required some 15 billion matches. As you can imagine, this 
generated a mountain of data and we are crunching all the 
numbers to see how well this system worked.
    Also, open consensus standards and associated testing are 
critical to providing higher levels of security through 
biometric identification systems. Throughout the years, NIST 
has worked in partnership with U.S. industry and other Federal 
agencies to establish formal groups for accelerating national 
and international biometric standardization.
    The Biometric Consortium which NIST is leading serves as 
the Federal Government's focal point for research and 
development testing, evaluation, and application of biometric-
developed personal identification and verification technology. 
This Consortium has grown to more than 900 members, including 
60 Government agencies. NIST and the National Security Agency 
co-chair the Consortium.
    NIST has collaborated with the Consortium, the biometric 
industry, and other biometric organizations to create the 
CBEFF, the Common Biometric Exchange File Format. This format 
already is part of a Government requirement for data 
interchange and is being adopted by the biometric industry.
    The specification is a candidate for fast-track approval as 
an ANSI standard and as an international standard for exchange 
by many types of biometric data files, including data on 
fingerprints, faces, retinas, palm prints, and iris and voice 
patterns.
    Later this year, also, NIST expects to submit a report, as 
required by the Acts, on our work to the State and Justice 
Departments for transmittal to the U.S. Congress. The due date, 
I believe, is November 10. The report will make a 
recommendation on which biometric or combination of biometrics 
would best secure the Nation's borders. The report will also 
address interoperability standards and tamper-resistant 
standards.
    Madam Chairwoman, I want to thank you and the committee for 
the passage of the Act, not just because it has made our 
country safer, but also it allows for NIST to cooperate closely 
with several Government agencies in the development of 
biometric standards and testing. This cooperation has really 
been successful and allowed for us to determine appropriate 
test scenarios for biometrics and exchange of very large data 
sets of fingerprints and face images obtained under operational 
conditions. As a result, we believe that the underlying science 
and technology for biometrics will greatly benefit, and the 
overall biometrics industry will also benefit as well.
    We thank you and Congress for providing legislative tools 
to allow us to achieve this goal, and I thank you for the 
opportunity to testify this morning.
    [The prepared statement of Mr. Wu appears as a submission 
for the record.]
    Chairperson Feinstein. Thanks very much, Mr. Wu.
    I am going to try and shorten my questions. I have a number 
of them and I think I would like to send them to you in 
writing, if I might, and hopefully you could respond within a 
week.
    I have a big concern over the visa waiver program, largely 
because it is so huge. Twenty-three million people a year come 
in and I recognize why it is necessary. On the other hand, I 
recognize that it is a very easy thing to abuse.
    Now, as I understand it, in our bill, by October 26, 2004, 
every person participating in the visa waiver program should 
have a machine-readable passport, I assume, with biometric 
data.
    Will you meet that date? You are on the record, Mr. Cronin 
or Mr. Edson.
    Mr. Edson. Yes.
    Chairperson Feinstein. Say that, ``yes.''
    Mr. Edson. Yes. Many of the visa waiver countries have had 
machine-readable passport programs at varying degrees of 
implementation for some time now. We used the passage of the 
legislation to sort of heat up discussions with them on this 
issue.
    The EU countries have indicated to us that they are 
planning on a uniform standard within the European Community 
for the biometric to be adopted. ICAO is proceeding apace with 
work on a sort of a triple standard, and it is our 
understanding right now that the ICAO members would be allowed 
to choose one of those three.
    Although no one is committing to us to definite deployment 
plans right now in these foreign governments, it looks as if 
they will have some biometric that is accepted by ICAO within 
the time allotted.
    Chairperson Feinstein. Well, I might say both Senator Kyl 
and I worked very hard on some of these aspects of the bill and 
this is very important to us, so we are going to be watching 
with glasses on.
    To what extent are you able to develop a pre-screening for 
visa waiver passport-holders so that you know who is coming 
into that program ahead of time?
    Mr. Cronin. If I may, Senator, basically that is done 
through the collection of data on departure by airlines. When 
flights depart for the United States, a manifest is provided to 
the U.S. Customs Service and to INS. We use the data provided 
while the flight is in the air to screen the names of the 
individuals on the flight to identify persons who may be the 
subjects of lookouts.
    We do analysis on that data to identify persons who might 
fit broad criteria that would indicate that they should be 
examined more closely for criminal reasons, for terrorism 
reasons, for reasons relating to migration issues or customs 
issues.
    Chairperson Feinstein. Does the manifest alone contain 
sufficient data to do that?
    Mr. Cronin. It provides us the name, the date of birth, the 
nationality, passport number of the individuals who are coming, 
as well as other data.
    Chairperson Feinstein. And that is in operation now?
    Mr. Cronin. Correct.
    Chairperson Feinstein. And is it observed one hundred 
percent of the time?
    Mr. Cronin. I can't say we are at--we are very close to one 
hundred percent. Both INS and Customs are working closely with 
the carriers to ensure that we are hitting one hundred percent 
as to both the data in the system and the accuracy of the data.
    That is going to continue to be an issue. I mean, we will 
always be faced with keying errors to some degree in the check-
in process or similar aspects of error that can't be avoided, 
but we are very, very close to a hundred percent in terms of 
working with the carriers.
    Chairperson Feinstein. That is good news.
    Now, the 7.1 million non-immigrant visas--what is being 
done to assure that it is properly filled out, that it isn't 
falsified, and that the exit date is carried out?
    Mr. Cronin. In terms of departure data, we are basically 
using the same system of gathering data from the airlines to 
close out the departures of persons who have arrived. The data 
is all coming to us electronically based on airline manifests.
    The way the system functions is the airline provides a 
departure manifest based on check-in information. They provide 
a subsequent departure manifest based on boarding gate 
information to verify that all persons that have checked in 
have, in fact, departed.
    We are going to have to continue to work with the airlines 
in terms of the integrity of the system to ensure that there 
aren't elements of fraud introduced into the system, persons 
using other identities. At this point, we are still relying on 
provision of data from the airlines, albeit in electronic form.
    Chairperson Feinstein. At this point, it could all be 
fraudulent data.
    Mr. Cronin. Sure.
    Chairperson Feinstein. You would have no way of knowing?
    Mr. Cronin. We are relying on data provided at check-in to 
the airlines. The airlines are required to check documentation 
when the individual checks in. By and large, as part of the 
statutory scheme, they are required to check that documentation 
and we get that data from them.
    I would distinguish, then, the national security entry/exit 
registration system where we are tracking select individuals. 
Those individuals on departure will be interviewed by an 
immigration officer. Their biometric will be verified against 
the data collected when they arrived and their departure will 
be recorded by an immigration officer. But, again, that is a 
select group of people that are subject to national security 
entry/exit registration.
    Chairperson Feinstein. I want to turn to Senator Kyl, but 
can you give me a percent compliance of the airlines with this?
    Mr. Cronin. I would prefer to go back and give that to you 
for the record. I am not sure off the top of my head that what 
I would give you would be accurate, but I am certainly happy to 
do that.
    Chairperson Feinstein. Fine, thank you.
    Senator Kyl, I know you have to leave.
    Senator Kyl. Thank you, Senator Feinstein. I would like to 
submit some questions for the record to the entire panel here, 
but because of the timeliness of this article, I would really 
like to focus there.
    Primarily, I suspect, Mr. Edson, these questions will go to 
you. You did not choose to be the subject of my questioning 
this morning and I don't mean this in any way personally, but I 
would like to start by reading three paragraphs from the 
beginning of this article to set the stage for it.
    ``On June 18, 2001, Abdulaziz Alomari filled out a simple, 
two-page application for a visa to come to the United States. 
Alomari was not exactly the ideal candidate for a visa. He 
claimed to be a student, though he left blank the space for the 
name and address of his school. He checked the box claiming he 
was married, yet he left blank the area where he should have 
put the name of his spouse. This `student' indicated that he 
would self-finance a 2-month stay at the `JKK Whyndham Hotel' 
and evidently provided no proof, as required by law, that he 
could actually do so.''
    ``Despite the legal requirement that a visa applicant show 
strong roots in his home country (to give him a reason to 
return from America), Alomari listed his home address as the 
`AlQUDOS HTL JED,' '' in Saudi Arabia. ``Alomari didn't even 
bother filling in the fields asking for his nationality and 
sex, apparently realizing that he didn't need to list much more 
than his name to obtain a visa to the United States. He was 
right. He got his visa.''
    ``When he arrived in the United States, he connected with 
his friend Mohamed Atta. And less than 3 months later, on 
September 11, he helped smash American Airlines Flight 11 into 
the north tower of the World Trade Center. Alomari never should 
have gotten the visa that allowed him to be in the United 
States on that day, and neither should at least 14 of the other 
9/11 terrorists.''
    Now, I discussed in my opening statement some of the other 
facts that are in this story that relied upon the analysis of 
six experts, people who were in the State Department or INS 
looking at these applications. Their conclusion was unanimous 
that of those that they reviewed, none of the individuals 
should have been granted a visa.
    With that as the background, let me just confirm some 
information and then ask the questions.
    Is it correct that Section 214(b) has always been 
determined to create a presumption that the immigrant has the 
burden of proof of demonstrating that he will return to the 
country of origin and not remain in the United States?
    Mr. Edson. Yes, the non-immigrant visa applicant, yes.
    Senator Kyl. And I should have stated these are for non-
immigrant visas, of course, yes.
    And that is a relatively high burden that consular officers 
are trained to try to cause the applicant to meet?
    Mr. Edson. Yes.
    Senator Kyl. Ordinarily, with the kind of application that 
I read to you, if you assume those facts to be true, there 
should have been an oral interview, should there not, to 
inquire into the reasons why the information was left blank 
that was left blank and to inquire further as to what the 
applicant could say that would cause the consular officer to 
believe that he would return to Saudi Arabia?
    Mr. Edson. That is a harder question to answer just because 
we cannot tell from--well, we can't tell how much of the 
article is accurate at this point. I just read it this morning. 
But we also can't tell from looking at the applications whether 
or not an interview took place, whether or not additional 
evidence was submitted with the application and returned to the 
applicant, questions asked over the phone and answered.
    Senator Kyl. That is unclear, although let me get back to 
my question. Ordinarily, wouldn't an application of the kind 
that I read you be followed up with an oral interview? The visa 
wouldn't just be granted on the basis of that information on 
its face, would it?
    Mr. Edson. Not on the basis of that information on its 
face.
    Senator Kyl. OK. If there had been an oral interview, 
wouldn't it be probable that that application, the two pages or 
the face page of it, would have had some notation of an oral 
interview?
    Mr. Edson. It should have. Our instructions would be that 
the officer should have annotated the application.
    Senator Kyl. OK, so either interviews were not held or the 
instructions to annotate the interview application were not 
done. In either case, the consular officers should have done 
something that apparently was not done, is that correct?
    Mr. Edson. Yes. They could have done what they did better, 
it seems.
    Senator Kyl. By the way, let me say I am not blaming any 
consular officers here. The article itself notes that they are 
not implicated in the problem. The problem was the culture that 
had been created by their superiors.
    Since the time is getting beyond us here, let me turn right 
to the penultimate point I wanted to make that these 
individuals should be demonstrating that they have a means of 
financial support, that they have a destination in the United 
States that is clear, that they have a specific reason for 
being in the United States, especially if they are young, 
single men--and every one of these applicants were single and 
none was even 30 years old, by the way--and that they be able 
to demonstrate to the consular officers that they will, in 
fact, return to their country of origin, in this case Saudi 
Arabia.
    Those are all of the kinds of things that the consular 
officers should have looked at, is that correct?
    Mr. Edson. Yes.
    Senator Kyl. Now, the last point that I want to make is 
this: According to the article--and I will ask you if you have 
any reason to believe that this is not true--the consulate in 
Jeddah where many of the terrorist visas were issued refused 
applications for fewer than 2 percent of the Saudi nationals in 
the 12 months prior to September 11, whereas the worldwide 
refusal rate for temporary visas is approximately 25 percent.
    Do those numbers sound reasonable to you, or would you have 
any reason to know?
    Mr. Edson. We track refusal rates based on the source of 
the application, the nationality of the applicants, and the 
type of visa being issued. So it is very difficult to speculate 
and I would much rather answer in writing concerning the 
refusal rates because they could be comparing rates against two 
different populations.
    Senator Kyl. Sure. One thing I would like to ask is if you 
or someone at the Department could get these statistics for us 
and could respond to the allegations in the article as to 
whether or not these statistics are true or, if there are some 
other statistics, what they are. I think that would be very 
useful to us.
    That answer probably then also applies to the 12 months 
following September 11, where the article asserts that 
according to documents bearing its letterhead, the embassy 
there in Saudi Arabia, the refusal rate for Saudi nationals in 
the 12 months following September 11 is a mere 3 percent. I 
gather you would have the same answer with respect to that.
    Mr. Edson. Yes. I need to check and see what they were 
counting.
    Senator Kyl. Just as a matter of visceral reaction, if 
these numbers are correct, would it seem to you that they are 
highly out of balance with the probability that Saudi 
nationals, especially those under 30 years of age, males, could 
prove a likelihood of returning to Saudi Arabia, that those 
numbers do seem to be out of balance?
    Mr. Edson. Not necessarily. Again, not knowing what we are 
counting, it is difficult to speculate. But remember that much 
of the population we are talking about is now subject to 
special additional screening procedures that have been put in 
place since September 11, much of it throughout the U.S. law 
enforcement and intelligence communities. So that the ultimate 
refusal rate might be in that neighborhood would not 
necessarily surprise me, but I don't know. We will have to 
check on the numbers for you.
    Senator Kyl. Well, let me just conclude, then, with this 
general question. Given the fact that all of these people were 
under 30, single males from Saudi Arabia--we were talking about 
the hijackers that caused the terror on September 11--and that 
so many of them, according to this article anyway, obtained a 
visa notwithstanding those facts and notwithstanding the kind 
of omissions that they article reported on their applications, 
would it not suggest to you a need for the State Department to 
immediately investigate what the practices of the State 
Department were at the time in that location, as well as other 
Middle Eastern countries that might be of concern to us, and to 
compare what the instructions are today to the consular 
officers with respect to how they handle such applications as a 
means of ensuring us that the State Department is on top of the 
situation and that its officers are making the right kinds of 
decisions with respect to people coming into this country on 
temporary non-immigrant visas?
    Mr. Edson. Yes. I do not agree with some of the conclusions 
reached by the article, but the important thing is just what 
you have just raised. The article raises the question that we 
have to ask ourselves constantly: Did we do the right thing and 
have we made changes since then to ensure that we are doing the 
best possible thing now in the visa process? That is what we do 
on an ongoing basis and that is what I hope that we do again in 
response to the article as we are looking to it and answering 
your questions.
    Chairperson Feinstein. The Senator is good enough to yield, 
and I would like to associate myself with his comments because 
I asked this question informally and I was told that every 
applicant goes through a special screening process now. If that 
is not true, then I would like to know it because I believe it 
should be and if we need legislation to accomplish it, we 
should do that.
    Mr. Edson. You are speaking to Saudi nationals?
    Chairperson Feinstein. In all these countries where there 
is a very real risk to the United States, every visa applicant 
from those countries goes through this special screening 
process.
    Now, Saudi Arabia isn't on our list as a terrorist state, 
but maybe it should be.
    Senator Kyl. It is, is it not, one of the states that is 
subject to the special screening requirement, nevertheless?
    Mr. Edson. Correct. I assume we are talking about the visa 
Condor process which applies primarily to adult males in all of 
these states that we are talking about.
    Chairperson Feinstein. Every one should be specially 
screened.
    Mr. Edson. It doesn't apply to all of them. I ran some 
numbers yesterday and it is in the high 90's. The criteria are 
driven by intelligence community concerns and don't cover 
everyone as currently constituted.
    Chairperson Feinstein. Well, I think we need to take a look 
at that and see if we have some views.
    Senator Kyl. I concur with Senator Feinstein. I think 
probably with some of the questions that we will submit in 
writing, you can clarify some of this and we will probably need 
to have some additional oral testimony.
    I would also like to conclude, if I could, by making one 
thing clear. This Section 214(b) does not relate to terrorism, 
per se. It rather is a standard part of our immigration policy 
to ensure that non-immigrant visas return to their country of 
origin. So this should have been standard procedure before 
September 11. It is not a terrorism-related filter for 
applicants, but rather one designed to ensure that people will 
comply with the laws of the United States when they seek to be 
our guests temporarily.
    The reason this has such special meaning to me is that 
Senator Feinstein and I were the ones that prepared the Border 
Security Act and part of it was based upon testimony that we 
received in the Subcommittee. And I will never forget the 
testimony of Mary Ryan, who said we didn't have the information 
we needed to deny these visas.
    She specifically talked about Mohamed Atta and I remember 
her saying it is like the person that hits the child who dashes 
out in front of the car in the school zone. You feel horrible 
about it, but there isn't anything you could have done about 
it.
    But it appears to me that there was something that we could 
have done about it, not because of anything related to 
terrorism, but simply enforcing the laws of the United States 
of America. And had those laws been enforced, it is likely that 
most of the terrorists who committed the heinous acts of 
September 11 would not have been permitted into the United 
States, at least under the circumstances in which they were. 
They would have had to come back and complete their 
applications in a very complete way and demonstrate to consular 
officers that they were committed to returning to Saudi Arabia.
    Of course, what they would be trying to prove is something 
that was utterly false, so that the likelihood is that consular 
officers being the good people they are would have found this 
out, discovered the problem, and never granted the visas to 
these people in the first instance.
    If you have any comment, fine. It is not really a question. 
Again, Mr. Edson, I am in no way casting any aspersions upon 
you. You came here to represent the Department, really to deal 
with some other questions, but I hope that you will be a 
conduit of information because we need the answers from the 
State Department with respect to this.
    I don't expect you to have those here this morning, but I 
would hope that you would be as upset as I am that when we talk 
about being able to prevent September 11, this perhaps could 
have prevented September 11 if we had just done our job, having 
nothing to do with terrorism, but just abided by the law of the 
United States. If consular officers had done their job, it is 
quite--and I shouldn't say ``if our consular officers'' because 
I am again not suggesting that they didn't do their job.
    If the State Department had had the proper policies in 
place to be followed by its employees, it is possible that 
these terrorists would never have made it to the United States.
    Chairperson Feinstein. Thank you, Senator Kyl, and I know 
you are under time pressure. I am, as well, but I have four 
quick questions I must ask.
    Let me just make a comment on this. One of the things that 
I really believe is true is that prior to 9/11 immigration 
policy in this country was really forged on humanitarian 
concerns, and then there were also economic concerns of 
facilitating travel. After 9/11, this has changed dramatically 
and national security concerns have to dominate.
    So I think from the perspective of this Subcommittee which 
oversees technology and terrorism, and as that technology 
impacts each of your departments, the goal clearly has to be 
that national security is protected. If anybody errs, they have 
to err toward the conservative, not toward the other side.
    I had taken a position early on in the student visa program 
and I have just four questions.
    In the past year, how many schools have you investigated 
for fraud or violating the terms of the student visa program?
    Mr. Cronin. I don't know the answer to that, Senator. I 
would have to get that for you for the record.
    Chairperson Feinstein. I would like to have the answer.
    How many schools have you dropped from the foreign student 
visa program after finding they were either sham operations, 
had fraudulently obtained student visas for persons not 
intending to attend classes, or had ceased operations?
    Mr. Cronin. Again, I apologize. That is not data that I 
have available.
    Chairperson Feinstein. How many cases of student visa fraud 
has the INS referred for further investigation or prosecution 
in the past 5 years?
    Mr. Cronin. I will have to get that for you for the record.
    Chairperson Feinstein. How many individuals have you 
deported in the past 5 years for foreign student visa 
violations?
    Mr. Cronin. Again, an answer I will have to provide for the 
record.
    Chairperson Feinstein. What type of institutions have you 
identified as high risk in terms of fraud and lack of 
compliance with the law?
    Mr. Cronin. I will provide that for the record, Senator.
    Chairperson Feinstein. What is the INS' timetable for 
conducting site visits to those institutions?
    Mr. Cronin. SEVIS is not under my responsibility. We will 
provide that answer for the record.
    Chairperson Feinstein. I understand, but these are the 
questions that we are going to ask about this program and we 
are going to ask them in the next 3 months, for the next 3 
months. I am going to ask you to come back and I will give you 
a list of the questions, and I would ask you to answer them 
with specificity 3 months from today.
    Mr. Cronin. Absolutely.
    Chairperson Feinstein. Thank you very much. I thank 
everybody. This hearing is adjourned.
    [Whereupon, at 12 p.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
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