[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
88-868 PDF
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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
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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
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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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