    [House Hearing, 108 Congress]
    [From the U.S. Government Publishing Office]

                     RECOMMENDATIONS OF THE 9/11 COMMISSION

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

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON CRIME, TERRORISM,
                             AND HOMELAND SECURITY

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                          ONE HUNDRED EIGHTH CONGRESS

                                 SECOND SESSION

                                   __________

                                AUGUST 23, 2004

                                   __________

                                 Serial No. 115

                                   __________

             Printed for the use of the Committee on the Judiciary

        Available via the World Wide Web: http://www.house.gov/judiciary

                                     ______

                         U.S. GOVERNMENT PRINTING OFFICE
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                           COMMITTEE ON THE JUDICIARY

                F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
    HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
    HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
    LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
    ELTON GALLEGLY, California           JERROLD NADLER, New York
    BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
    STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
    WILLIAM L. JENKINS, Tennessee        ZOE LOFGREN, California
    CHRIS CANNON, Utah                   SHEILA JACKSON LEE, Texas
    SPENCER BACHUS, Alabama              MAXINE WATERS, California
    JOHN N. HOSTETTLER, Indiana          MARTIN T. MEEHAN, Massachusetts
    MARK GREEN, Wisconsin                WILLIAM D. DELAHUNT, Massachusetts
    RIC KELLER, Florida                  ROBERT WEXLER, Florida
    MELISSA A. HART, Pennsylvania        TAMMY BALDWIN, Wisconsin
    JEFF FLAKE, Arizona                  ANTHONY D. WEINER, New York
    MIKE PENCE, Indiana                  ADAM B. SCHIFF, California
    J. RANDY FORBES, Virginia            LINDA T. SANCHEZ, California
    STEVE KING, Iowa
    JOHN R. CARTER, Texas
    TOM FEENEY, Florida
    MARSHA BLACKBURN, Tennessee

                 Philip G. Kiko, Chief of Staff-General Counsel
                   Perry H. Apelbaum, Minority Chief Counsel
                                     ------

            Subcommittee on Crime, Terrorism, and Homeland Security

                     HOWARD COBLE, North Carolina, Chairman

    TOM FEENEY, Florida                  ROBERT C. SCOTT, Virginia
    BOB GOODLATTE, Virginia              ADAM B. SCHIFF, California
    STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
    MARK GREEN, Wisconsin                MAXINE WATERS, California
    RIC KELLER, Florida                  MARTIN T. MEEHAN, Massachusetts
    MIKE PENCE, Indiana
    J. RANDY FORBES, Virginia

                          Jay Apperson, Chief Counsel

                            Elizabeth Sokul, Counsel

                              Katy Crooks, Counsel

                     Jason Cervenak, Full Committee Counsel

                         Bobby Vassar, Minority Counsel

                                C O N T E N T S

                                  ----------

                                AUGUST 23, 2004

                               OPENING STATEMENT

                                                                       Page
    The Honorable Howard Coble, a Representative in Congress From the
      State of North Carolina, and Chairman, Subcommittee on Crime,
      Terrorism, and Homeland Security...............................     1
    The Honorable Robert C. Scott, a Representative in Congress From
      the State of Virginia, and Ranking Member, Subcommittee on
      Crime, Terrorism, and Homeland Security........................     2

                                   WITNESSES

    Mr. Christopher Kojm, Deputy Executive Director, National
      Commission on Terrorist Attacks Upon the United States (``9/11
      Commission'')
      Oral Testimony.................................................     5
      Prepared Statement.............................................     7
    Mr. John S. Pistole, Executive Assistant Director,
      Counterterrorism/Counterintelligence, Federal Bureau of
      Investigation
      Oral Testimony.................................................    13
      Prepared Statement.............................................    15
    Mr. John O. Brennan, Director, Terrorist Threat Integration
      Center
      Oral Testimony.................................................    19
      Prepared Statement.............................................    20
    Mr. Gregory T. Nojeim, Associate Director and Chief Legislative
      Counsel, American Civil Liberties Union
      Oral Testimony.................................................    21
      Prepared Statement.............................................    23

                                    APPENDIX
                   Material Submitted for the Hearing Record

    Prepared Statement by the Honorable Steve Chabot, a
      Representative in Congress From the State of Ohio..............    69
    News Article: ``Terror No-Fly Lists: Tough to Get Off''..........    70
    News Article: ``Science Seen As Slipping''.......................    72
    Prepared Statement from the Honorable Sheila Jackson Lee, a
      Representative in Congress From the State of Texas.............    77
    Letter from Gregory T. Nojeim, along with Report by the
      Electronic Privacy Information Center..........................    87
    Questions and Responses for the Record from Mr. Chris Kojm.......   106
    Questions and Responses for the Record from Mr. John S. Pistole..   107
    Questions and Repsonses for the Record from Mr. John O. Brennan..   111

                            RECOMMENDATIONS OF THE
                                9/11 COMMISSION

                                  ----------

                            MONDAY, AUGUST 23, 2004

                      House of Representatives,
                      Subcommittee on Crime, Terrorism,
                                  and Homeland Security
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 10:02 a.m., in
    Room 2141, Rayburn House Office Building, Hon. Howard Coble
    (Chair of the Subcommittee) presiding.
        Mr. Coble. Good morning, ladies and gentlemen. Today the
    Subcommittee on the Judiciary of Crime, Terrorism, and Homeland
    Security convenes a very important hearing on the report
    released last month by the National Commission on terrorist
    attacks upon the United States, the 9/11 Commission.
        Considerable time has been spent already by this
    Subcommittee as well as other Committees of the House of
    Representatives, and by our colleagues in the Senate as well,
    on attempting to conclude or figure out what went wrong and why
    the attacks of September 11, 2001, were able to be carried out
    with such apparent ease. Today's hearing will focus on some of
    the specific recommendations that were offered by the
    Commission and upon where we are in terms of implementing these
    recommendations.
        To assist us in our examination, we have a distinguished
    panel of witnesses today from the 9/11 Commission itself and
    from some of the agencies that play a major role in the war on
    terror and that are directly impacted by some of the proposed
    recommendations.
        I am pleased to say that some of the much needed change,
    reform, and restructuring has already begun, and in fact
    substantial measures have been undertaken within some of these
    agencies long before the 9/11 Commission concluded its work.
    Before we go any further, I would be remiss if I did not thank
    the members of the Commission for their tedious, thorough, and
    quite extraordinary work.
        I would also like to thank our witnesses and the agencies
    they represent for embracing the work of the Commission as the
    incredible--at the incredible opportunity that it is, an
    opportunity to take a learned input from outside experts and
    implement or supplement meaningful change. As the Commission
    found, our Government intelligence apparatus was of Cold War
    vintage in desperate need of an upgrade. Our numerous
    intelligence and law enforcement agencies were not
    communicating with each other the way they should and perhaps
    we as a Government were not as focused on the things we should
    have been--upon which we should have been focused.
        With the release of their report and the knowledge that we
    as legislators have gained from the many hearings and briefings
    that the Congress has had on the topics of terrorism and
    intelligence since the events of September 11, 2001, we must
    look forward. We must ensure that consistent with our oversight
    responsibilities of the Department of Justice and the
    Department of Homeland Security, we do everything possible to
    define an old axiom: We must do everything possible to ensure
    that history does not repeat itself.
        As this will most certainly not be the last visit that we
    pay to these witnesses or to this topic, today's hearing will
    focus primarily on the 9/11 Commission's recommendations
    regarding the creation of a national intelligence director, the
    need for more secure borders, the need to prevent identity
    theft and fraud, the need to target the networks that provide
    material support for terrorists, and the need to create a
    specialized and integrated national security workforce at the
    FBI.
        Additionally we will hear about the recommendations that
    have already been implemented or are about to be implemented by
    the entities represented here today.
        Before I introduce our distinguished Ranking Member let me
    depart from the opening statement just a minute. It is my
    belief, gentlemen and ladies, that when these people came on 9/
    11, they wanted to destroy us. But failing to do that, I think
    one of their asides was to frustrate our day-to-day living. And
    they have succeeded in spades. One of our salient features as a
    society since its inception has been Americans' eager
    willingness to embrace strangers, for example. Now we're very
    tentative about that, very guarded. I recall, as do you all,
    the anticipation with which families would examine rail or
    train ride or fly across the country. Now it's tentatively
    guarded. So that's where we are now.
        I am pleased to have the gentlelady from Texas and the
    gentleman from Florida with us today. I am going to confine
    opening statements to the Chairman and the Ranking Member and
    all other Members will be permitted to have their statements
    included in the record.
        I am now pleased to recognize the distinguished gentleman
    from Virginia, the Ranking Member of this Subcommittee, Mr.
    Bobby Scott.
        Mr. Scott. Thank you, Mr. Chairman. And thank you for
    holding the hearing on the 9/11 Commission report
    recommendations which fall under the jurisdiction of this
    Subcommittee. The Commission's report represents a reasonable
    blueprint for what must be done to better secure our Nation
    against terrorist attack. I am pleased to see that the
    Commission strongly reaffirmed that securing America does not
    and must not require sacrificing our civil liberties. Indeed,
    the Commission confirmed that we can be safe and free.
    Otherwise we run the risk of doing to ourselves what the
    terrorists were seeking to do, destroying or eroding our
    freedoms upon which this country was founded.
        I believe that we can implement the substance of all of the
    recommendations of the Commission, although we should develop
    them in a planner which maximizes the threat of all of our
    agencies to contribute their best in the fight against
    terrorism. But as those agencies address the threat of
    terrorism, we must not diminish their ability to fulfill their
    traditional missions and we must not sacrifice our civil
    liberties. And this is especially true with law enforcement
    agencies.
        We should also be mindful that the investigation of the 9/
    11 attacks reveal that we had gathered plenty of information on
    the hijackers which, if used properly, could have stopped most
    of them, if not all of them. Accordingly, it appears that our
    intelligence gathering system may have worked reasonably well.
    It is the analysis and use function that failed us. And while
    we consider new ways of analyzing, collecting, and sharing
    intelligence across the Intelligence Community, we have to
    consider all those techniques affect constitutionally-based
    standards of domestic law enforcement. This is particularly
    important when we consider that the report calls for a further
    relaxation of the traditional wall of separation between
    foreign and domestic intelligence gathering. The standards for
    foreign intelligence are significantly lower than the standards
    for domestic intelligence. Although we must permit the
    appropriate sharing of intelligence across the intelligence
    spectrum, we must not allow foreign intelligence gathering
    techniques and uses to be applied against Americans at home.
        Now, it is important to note, Mr. Chairman, that at last
    week's hearing with the Constitution Subcommittee and the
    Administrative Law Subcommittee, one of the commissioners
    indicated that the recommendations on new powers were intended
    to apply to terrorism cases, and not just generally. I think
    that's important, because when we passed the USA PATRIOT Act,
    the new powers were not restricted to terrorism cases.
        The report recommends that Congress better organize its
    oversight and intelligence and counterintelligence functions by
    consolidating the oversight into a single entity in each
    Chamber. Now, coordination of oversight functions by various
    Committees with jurisdiction over homeland security is vitally
    important. We must avoid, however, weakening or watering down
    the oversight function. The different Committees in Congress
    have different areas of expertise. One oversight Committee
    could not possibly be expected to have the expertise in
    constitutional law and international relations, and health
    issues covered by the Centers for Disease Control. We need to
    take advantage of the expertise on all of our Committees and
    Subcommittees.
        So I look forward to the testimony of our witnesses on how
    we might best proceed with implementing the recommendations of
    the 9/11 Commission to ensure that we are putting forth our
    best effort to prevent and address terrorist threats against
    this country. I look forward to working with you, Mr. Chairman,
    as we implement the recommendations which fall under the
    jurisdiction of this subCommittee. I yield back.
        Mr. Coble. Thank you Mr. Scott.
        Mr. Coble. And we have been joined by the gentleman from
    Ohio, Mr. Chabot. Mr. Chabot, you may present your opening
    statement in the record.
        [The information referred to follows in the Appendix]
        Mr. Coble. I am now pleased to introduce our distinguished
    panel. And before I do that, let me say this. It serves no good
    purpose, I think, to point accusatory fingers, because many
    people were to blame. Mistakes occurred in the Clinton
    administration, mistakes have occurred during the Bush
    administration. Mistakes have occurred in the Intelligence
    Community. I think what we need to learn is try to see to it
    that they don't recur. And hopefully we will have some input
    from you all today.
        Our first witness today is Mr. Christopher Kojm, the Deputy
    Executive Director of the 9/11 Commission. Mr. Kojm served on
    the staff of the House Committee on International Relations
    from 1984 to 1998 as director of the Democratic staff that is
    coordinator for regional issues. In addition, prior to joining
    the Commission, he served for 5 years as Deputy Assistant
    Secretary for Intelligence Policy and Coordination at the State
    Department. Mr. Kojm received a master's in public affairs from
    Princeton University and an A.B. from Harvard College.
        Mr. Kojm, I notice your first alma mater has been
    recognized as the top university in the country. I think they
    shared that with Harvard--I guess both your alma maters were at
    the top of the heap. So congratulations to you. If you will,
    Mr. Kojm, convey our good wishes to Governor Kean and to former
    Congressman Lee Hamilton. I think they did a good job in
    guiding this 9/11 Commission through what at times I am sure
    must have appeared to have been shoals and rocks and reefs.
        Our second witness is Mr. John Pistole who serves as the
    Executive Assistant Director of Counterterrorism and
    Counterintelligence at the FBI. Mr. Pistole commenced his
    career with the FBI as a special agent in 1983. Subsequently he
    served in various posts in Minneapolis, New York, Indianapolis,
    Boston, and the FBI headquarters. Prior to assuming his current
    position in December 2003, he served as Assistant Director at
    the Counterterrorism Division.
        We also have with us today Mr. John Brennan, the Director
    of the Terrorist Threat Integration Center. Mr. Brennan
    commenced his career as an intelligence officer with the CIA in
    1980. He served in many capacities within the CIA, including as
    daily intelligence briefer at the White House in 1994 and 95,
    and as chief of station in the Middle East from 1996 to 1999.
    He served as DCI Tenet's chief of staff for 2 years, prior to
    having been appointed Deputy Executive Director in March of
    2001. Mr. Brennan earned his B.A. from Fordham University and
    his M.A. in government from the University of Texas at Austin.
        Our final witness today, Mr. Gregory Nojeim, the Associate
    Director and Chief Legislative Counsel of the American Civil
    Liberties Union. Mr. Nojeim joined the ACLU in 1995 and has
    been responsible for analyzing the civil liberties and
    implications of Federal legislation regarding terrorism,
    national security, immigration and informational privacy. Prior
    to joining the ACLU, he was director of legal services of the
    American Arab Anti-discrimination Committee for 4 years, and as
    an attorney for Kirkpatrick and Lockhart for 5 year. Mr. Nojeim
    received his undergraduate degree from the University of
    Rochester and his J.D. from the University of Virginia.
        I apologize to you all for having singled out Mr. Kojm's
    alma maters, but I don't believe your alma maters nor mine made
    that final cut.
        So, Mr. Kojm, we're glad to have you kick it off.
    Gentleman, traditionally we operate under the 5-minute rule.
    When you see that red light on the panel before you, that means
    that you are skating on eternally thin ice. And we will not
    buggy-whip you, but that's the time to wind down. And we impose
    the 5-minute rule against ourselves as well when we're
    questioning you. So if you could keep your answers terse, we
    would appreciate that.
        Mr. Coble. Mr. Kojm.

       TESTIMONY OF CHRISTOPHER KOJM, DEPUTY EXECUTIVE DIRECTOR,
    NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES

        Mr. Kojm. Mr. Chairman----
        Mr. Coble. I stand corrected. Our Chairman--traditionally
    we swear in all of our witnesses appearing before us. So if you
    all would please stand and raise your right hand.
        [Witnesses sworn.]
        Mr. Coble. Let the record show that each of the witnesses
    answered in the affirmative. Please be seated. Mr. Kojm, you
    will start.
        Mr. Kojm. Mr. Chairman, Ranking Member Scott, distinguished
    Members of the Judiciary Committee, it is an honor to appear
    before you today. I want to thank the Chairman for his
    insightful comments and I certainly do thank the Chair and
    Ranking Member for their expertise and their statements of
    support for the Commission's work. I appreciate it.
        The 9/11 Commission is grateful to you and to the
    leadership of the House for your prompt consideration of the
    report and recommendations of the Commission. As you know, the
    Commission's findings and recommendations were strongly
    endorsed by all commissioners, five Republicans and five
    Democrats who have been active in the public life of our
    Nation. In these difficult times and in an election year, this
    unanimity, we believe, is remarkable and important. It reflects
    a unity of purpose to make our country safer and more secure in
    the face of the threat posed by international terrorism. The
    Commission calls upon the Congress and the Administration to
    respond to our report in the same spirit of bipartisanship.
        Mr. Chairman, you have asked the Commission to present its
    recommendations related to the Federal Bureau of Investigation
    on the topic of border security and the creation of a center
    for counterterrorism and the national intelligence director.
    All topics are treated in the written statement and I will
    confine my opening remarks to the FBI.
        The FBI for the past several decades performed two
    important but related functions. First, it serves as our
    premier Federal law enforcement agency investigating possible
    violations of Federal criminal statutes and working with
    Federal prosecutors to develop and bring cases against
    violators of those laws.
        Second, it is an important member of the Intelligence
    Community, collecting information on foreign intelligence or
    terrorist activities within the United States. That information
    can be used either for additional counterintelligence or
    counterterrorism investigations or to bring criminal
    prosecutions.
        We focused on the FBI's performance as an intelligence
    agency combating the al Qaeda threat within the United States
    before 9/11. Like the Joint Inquiry of the Senate and House
    Intelligence Committees before us, we found that performance
    seriously deficient. Director Freeh did make counterterrorism a
    priority in the 1990's. And Dale Watson, his counterterrorism
    chief, made valiant and substantial efforts to communicate that
    priority to agents in the field, but that priority did not
    effectively find its way into the daily work of the FBI's field
    offices, nor did it result in the creation of a corps of
    intelligence officers and analysts with the professional
    qualifications and skills needed for an effective intelligence
    counterterrorism operation.
        Finally, when FBI agents did develop important information
    about possible terrorist-related activities, that information
    often did not get effectively communicated either within the
    FBI itself or in the Intelligence Community as a whole. Within
    the FBI itself, communication of important information was
    hampered by the traditional case-oriented approach of the
    Agency and the possessive case-file mentality of FBI agents.
    This Committee is only too familiar with the information
    technology problems that have long hampered the FBI's ability
    to know what it knows.
        Even when information was communicated from the field to
    headquarters, it did not always come to the attention of the
    director or other top officials who should have seen it. This
    was the case in the now famous incidents in the summer of 2001
    of the Phoenix electronic communication about Middle Eastern
    immigrants in flight schools and the Minneapolis field office's
    report to headquarters about the arrest of Zacarias Moussaoui.
        The other internal barrier to communication of intelligence
    information between FBI intelligence officials and FBI criminal
    agents and the Federal prosecutors was the wall between
    intelligence and law enforcement that developed in the 1980's
    and was reinforced in the 1990's. Through a combination of
    court decisions, pronouncements from the Department of Justice
    and its Office of Intelligence Policy and Review, and risk-
    averse interpretations of those pronouncements by the FBI, the
    flow of information between the intelligence and criminal sides
    of the FBI and the Justice Department was significantly
    restricted.
        This phenomenon continued until after 9/11 when the
    Congress enacted the USA PATRIOT Act and when the Justice
    Department successfully appealed a FISA court decision that had
    effectively reinstated the wall. These failures in internal
    communications were exacerbated by a reluctance of the FBI to
    share information with sister agencies in the Intelligence
    Community, with the National Security Council, and with State
    and local law enforcement agencies. This culture of nonsharing
    was by no means unique to the FBI, but the FBI was surely one
    of the worst offenders in this regard.
        The FBI under the leadership of its current director,
    Robert Mueller, has undertaken significant reforms to try to
    deal with these deficiencies and build a strong capability in
    intelligence and counterterrorism. It's certainly our distinct
    analysis and impression that Director Mueller has made very
    important reforms. We believe they are all in the right
    direction. But he and the Agency certainly have a long way to
    go.
        And let me conclude, Mr. Chairman, by saying that what the
    Commission recommends is that further steps be taken by the
    President, the Justice Department, and the FBI itself to build
    upon Director Mueller's reforms that have been undertaken and
    to institutionalize these reforms so that the FBI is
    transformed into an effective intelligence and counterterrorism
    agency. The goal, as our report states, is to create within the
    FBI a specialized and integrated national security workforce of
    agents, analysts, linguists, and surveillance specialists who
    create a new FBI culture of expertise and national security and
    intelligence.
        In closing, Mr. Chairman, this Committee will have a vital
    oversight role in monitoring the progress by the FBI and
    ensuring that this new capacity, so critical to our Nation, is
    created and maintained. Thank you.
        Mr. Coble. Thank you Mr. Kojm.
        [The prepared statement of Mr. Kojm follows:]
                   Prepared Statement of Christopher A. Kojm
        Chairman Coble, Ranking Member Scott, distinguished Members of the
    Judiciary Committee: it is an honor to appear before you today. The 9/
    11 Commission is grateful to you, and to the Leadership of the House,
    for your prompt consideration of the Report and recommendations of the
    Commission.
        As you know, the Commission's findings and recommendations were
    strongly endorsed by all Commissioners--five Republicans and five
    Democrats who have been active in the public life of our nation. In
    these difficult times, and in an election year, this unanimity is
    remarkable, and important. It reflects a unity of purpose to make our
    country safer and more secure in the face of the novel threat posed by
    transnational terrorism. The Commission calls upon the Congress and the
    Administration to respond to our Report in the same spirit of
    bipartisanship.
        You have asked the Commission to present its recommendations
    related to the Federal Bureau of Investigation, border security, and
    the creation of a Center for Counterterrorism and the National
    Intelligence Director. Our recommendations follow.

                                    THE FBI
        The FBI has for the past several decades performed two important
    but related functions.
        First, it serves as our premier federal law enforcement agency,
    investigating possible violations of federal criminal statutes and
    working with federal prosecutors to develop and bring cases against
    violators of those laws.
        Second, it is an important member of the Intelligence Community,
    collecting information on foreign intelligence or terrorist activities
    within the United States. That information can be used either for
    additional counterintelligence or counterterrorism investigations, or
    to bring criminal prosecutions.
        We focused on the FBI's performance as an intelligence agency
    combating the al Qaeda threat within the United States before 9/11.
    Like the Joint Inquiry of the Senate and House Intelligence Committees
    before us, we found that performance seriously deficient.
        Director Freeh did make counterterrorism a priority in the 1990s,
    and Dale Watson, his Counterterrorism chief, made valiant efforts to
    communicate that priority to agents in the field. But that priority did
    not effectively find its way into the daily work of the FBI's field
    offices. Nor did it result in the creation of a corps of intelligence
    officers and analysts with the professional qualifications and skills
    needed for an effective intelligence/counterterrorism operation.
        Finally, when FBI agents did develop important information about
    possible terrorist-related activities, that information often did not
    get effectively communicated--either within the FBI itself or in the
    Intelligence Community as a whole.
        Within the FBI itself, communication of important information was
    hampered by the traditional case-oriented approach of the agency and
    the possessive case-file mentality of FBI agents. This Committee is
    only too familiar with the information technology problems that have
    long hampered the FBI's ability to ``know what it knows.''
        Even when information was communicated from the field to
    headquarters, it did not always come to the attention of the Director
    or other top officials who should have seen it. This was the case in
    the now-famous incidents, in the summer of 2001, of the Phoenix
    electronic communication about Middle Eastern immigrants in flight
    schools, and the Minneapolis Field Office's report to headquarters
    about the arrest of Zacarias Moussaoui.
        The other internal barrier to communication of intelligence
    information between FBI intelligence officials and FBI criminal agents
    and federal prosecutors was the ``wall'' between intelligence and law
    enforcement that developed in the 1980s and was reinforced in the
    1990s. Through a combination of court decisions, pronouncements from
    the Department of Justice and its Office of Intelligence Policy and
    Review, and risk-averse interpretations of those pronouncements by the
    FBI, the flow of information between the intelligence and criminal
    sides of the FBI and the Justice Department was significantly
    restricted. This phenomenon continued until after 9/11, when the
    Congress enacted the USA PATRIOT Act, and when the Justice Department
    successfully appealed a FISA Court decision that had effectively
    reinstated the wall.
        These failures in internal communications were exacerbated by a
    reluctance of the FBI to share information with sister agencies in the
    Intelligence Community, with the National Security Council at the White
    House, and with state and local law enforcement agencies. This culture
    of non-sharing was by no means unique to the FBI, but the FBI was
    surely one of the worst offenders.
        The FBI, under the leadership of its current Director, Robert
    Mueller, has undertaken significant reforms to try to deal with these
    deficiencies and build a strong capability in intelligence and
    counterterrorism. These include the establishment of an Office of
    Intelligence, headed by an Associate Director, Maureen Baginski, who is
    an experienced manager of intelligence systems. The FBI has embarked on
    an ambitious program to recruit qualified analysts, to train all agents
    in counterterrorism, and to develop career tracks for agents who want
    to specialize in counterterrorism or intelligence. The agency is also
    making progress, albeit slowly, in upgrading its internal information
    technology system. But, as Director Mueller himself has recognized,
    much more remains to be done before the FBI reaches its full potential
    as an intelligence agency.
        Because of the history of serious deficiencies, and because of
    lingering doubts about whether the FBI can overcome its deep-seated
    law-enforcement culture, the Commission gave serious consideration to
    proposals to move the FBI's intelligence operations to a new agency
    devoted exclusively to intelligence collection inside the United
    States--a variant of the British Security Service, popularly known as
    MI-5.
        We decided not to make such a recommendation for several reasons,
    set forth in our Report. Chief among them were the disadvantages of
    separating domestic intelligence from law enforcement and losing the
    collection resources of FBI field offices around the country,
    supplemented by relationships with state and local law enforcement
    agencies. Another major reason was civil liberties concerns that would
    arise from creating outside the Justice Department an agency whose
    focus is on collecting information from and about American citizens,
    residents, and visitors. The rights and liberties of Americans will be
    better safeguarded, we believe, if this sensitive function remains in
    an agency trained and experienced in following the law and the
    Constitution, and subject to the supervision of the Attorney General.
        We also believe that while the jury is still out on the ultimate
    success of the reforms initiated by Director Mueller, the process he
    has started is a promising one. And many of the benefits that might be
    realized by creating a new agency will be achieved, we are convinced,
    if our important recommendations on restructuring of the Intelligence
    Community--creation of a National Counterterrorism Center and a
    National Intelligence Director with real authority to coordinate and
    direct the activities of our intelligence agencies--are implemented. An
    FBI that is an integral part of the NCTC and is responsive to the
    leadership of the National Intelligence Director will work even more
    effectively with the CIA and other intelligence agencies, while
    retaining the law enforcement tools that continue to be an essential
    weapon in combating terrorism.
        What the Commission recommends, therefore, is that further steps be
    taken--by the President, the Justice Department, and the FBI itself--to
    build on the reforms that have been undertaken already, and to
    institutionalize those reforms so that the FBI is transformed into an
    effective intelligence and counterterrorism agency. The goal, as our
    Report states, is to create within the FBI a specialized and integrated
    national security workforce of agents, analysts, linguists, and
    surveillance specialists who create a new FBI culture of expertise in
    national security and intelligence. This Committee will have a vital
    oversight role in monitoring progress by the FBI and ensuring that this
    new capacity so critical to our nation is created and maintained.

                                 BORDER CONTROL
        As our Report makes clear, in the decade before 9/11, border
    security was not seen as a national security matter. From a strategic
    perspective, border policy focused on counternarcotics efforts, illegal
    immigration, and, more recently, the smuggling of weapons of mass
    destruction. Our government simply did not exhibit a comparable level
    of concern about terrorists' ability to enter and stay in the United
    States.
        During that same period, however, al Qaeda studied how to exploit
    gaps and weaknesses in the passport, visa, and entry systems of the
    United States and other countries. Al Qaeda actually set up its own
    passport office in Kandahar and developed working relationships with
    travel facilitators--travel agents (witting or unwitting), document
    forgers, and corrupt government officials.
        As we know, Al Qaeda's travel tactics allowed the 9/11 hijackers to
    enter the United States quite easily. Yet the Commission found that
    many of the 19 hijackers were potentially vulnerable to detection by
    border authorities. Although the intelligence as to their tactics was
    not developed at the time, examining their passports could have allowed
    authorities to detect from four to 15 hijackers. More effective use of
    information in government databases could have allowed border
    authorities to intercept up to three of the hijackers had they been
    watchlisted.
        More robust enforcement of routine immigration laws, supported by
    better information, could also have made a difference. Two hijackers
    made statements on their visa applications that could have been shown
    to be false by U.S. government records available to consular officers.
    Many of the hijackers lied about their employment or educational
    status. Two hijackers could have been denied admission at the port of
    entry based on violations of immigration rules governing terms of
    admission. Three hijackers violated the immigration laws after entry,
    one by failing to enroll in school as declared, and two by overstays of
    their terms of admission.
        Neither the intelligence community, nor the border security
    agencies or the FBI, had programs in place to analyze and act upon
    intelligence about terrorist travel tactics--how they obtained
    passports, made travel arrangements, and subverted national laws and
    processes governing entry and stays in foreign countries.
        Congress during the 1990s took some steps to provide better
    information to immigration officials by legislating requirements for a
    foreign student information system and an entry-exit system. As we
    know, these programs were not successfully implemented before 9/11.
        Since 9/11, some important steps have been taken to strengthen our
    border security. The Department of Homeland Security has been
    established, combining the resources of the former Immigration and
    Naturalization Service and the Customs Bureau into new agencies to
    protect our borders and to enforce the immigration laws within the
    United States. The visa process and the terrorist watchlist system have
    been strengthened. DHS has begun to implement, through the US VISIT
    program, a biometric screening system for use at the border.
        These efforts have made us safer, but not safe enough. As a nation
    we have not yet fully absorbed the lessons of 9/11 with respect to
    border security. The need to travel makes terrorists vulnerable. They
    must leave safe havens, travel clandestinely, and use evasive
    techniques, from altered travel documents to lies and cover stories.
    Terrorist entry often can be prevented and terrorist travel can be
    constrained by acting on this knowledge.
        Targeting terrorist travel is at least as powerful a weapon against
    terrorists as targeting their finances.
        The Commission therefore has recommended that we combine terrorist
    travel intelligence, operations, and law enforcement in a strategy to
    intercept terrorists, find terrorist travel facilitators, and constrain
    terrorist mobility.
    Targeting Terrorist Travel
        Front line border agencies must not only obtain from the
    Intelligence Community--on a real-time basis information on terrorists;
    they must also assist in collecting it. Consular officers and
    immigration inspectors, after all, are the people who encounter
    travelers and their documents. Specialists must be developed and
    deployed in consulates and at the border to detect terrorists through
    their travel practices, including their documents. Technology has a
    vital role to play. The three years since 9/11 have been more than
    enough time for border officials to integrate into their operations
    terrorist travel indicators that have been developed by the
    intelligence community. The intelligence community and the border
    security community have not been close partners in the past. This must
    change.
        We also need an operational program to target terrorist travel
    facilitators--forgers, human smugglers, travel agencies, and corrupt
    border officials. Some may be found here, but most will be found
    abroad. Disrupting them would seriously constrain terrorist mobility.
    While there have been some successes in this area, intelligence far
    outstrips action. This should be rectified by providing the interagency
    mandate and the necessary resources to Homeland Security's enforcement
    arm, Immigration and Customs Enforcement (ICE), and other relevant
    agencies, including the FBI.
        This problem illustrates the need for a National Counterterrorism
    Center. Investigations of travel facilitators raise complicated
    questions: Should a particular travel facilitator be arrested or should
    he be the subject of continued intelligence operations? In which
    country should he be arrested? The NCTC could bring the relevant
    intelligence agencies to the table to coordinate and plan the best
    course of action.
    Screening Systems
        To provide better information to our consular officers and
    immigration inspectors, the government must accelerate its efforts to
    build a biometric entry and exit screening system. This is an area in
    which Congress has been active since the mid-1990's. It has been a
    frustrating journey. Congress first legislated an entry-exit system in
    1996, to increase compliance with our immigration laws. It was neither
    associated with counterterrorism, nor with biometric identification. As
    a practical matter, the entry-exit effort was not seriously funded
    until the end of 2002. By that time, aspects of a system were governed
    by four separate laws. The establishment of the Department of Homeland
    Security then changed the organizational context for implementing those
    laws.
        The new Department is emerging from its difficult start-up period
    and is, we believe, poised to move forward to implement Congress's
    mandates in this area. We would like to stress four principles that we
    believe must guide our efforts in this arena.
        First, the U.S. border security system must be an effective part of
    a larger network of screening points that includes our transportation
    system and access to vital facilities, such as nuclear reactors. The
    Department of Homeland Security should lead an effort to design a
    comprehensive screening system, addressing common problems and setting
    common standards with system-wide goals in mind.
        Second, a biometric entry and exit screening system is fundamental
    to intercepting terrorists and its development should be accelerated.
    Each element of the system is important. The biometric identifier makes
    it difficult to defeat a watchlist by an alteration in spelling of a
    name, a technique relied upon by terrorists. The screening system
    enables border officials access to all relevant information about a
    traveler, in order to assess the risk they may pose. Exit information
    allows authorities to know if a suspect individual has left the country
    and to establish compliance with immigration laws.
        Third, United States citizens should not be exempt from carrying
    biometric passports or otherwise enabling their identities to be
    securely verified. Nor should Canadians or Mexicans.
        Fourth, there should be a unified program to speed known travelers,
    so inspectors can focus on those travelers who might present greater
    risks. This is especially important for border communities.
        We believe that the schedule for completion of this biometric
    entry-exit screening system should be accelerated to the extent
    feasible. This will require additional annual funding, and a mandate to
    a central organizational authority, such as the US VISIT office, to
    manage the effort.
    International Collaboration
        We need to dedicate a much greater effort to collaboration with
    foreign governments with respect to border security. This means more
    exchange of information about terrorists and passports, and improved
    global passport design standards. Implicit in this recommendation is
    continued close cooperation with Mexico and Canada. One particularly
    important effort is to improve screening efforts prior to departure
    from foreign airports, especially in countries participating in the
    visa waiver program.
    Immigration Law and Enforcement
        We must be able to monitor and respond to entries along our long
    borders with Canada and Mexico, working with those countries as much as
    possible. Our law enforcement system ought to send a message of
    welcome, tolerance, and justice to members of the immigrant communities
    in the United States, while also fostering the respect for the rule of
    law. Good immigration services are one way to reach out that is
    valuable, including for intelligence. State and local law enforcement
    agencies need more training and partnerships with federal agencies so
    they can cooperate more effectively with those federal authorities in
    identifying terrorist suspects.
        Finally, secure identification should begin in the United States.
    We believe that the federal government should set standards for the
    issuance of birth certificates and sources of identification such as
    drivers' licenses.
        The agenda on immigration and border control, then, is multi-
    faceted and vital to our national security. The bottom line is that our
    visa and border control systems must become an integral part of our
    counterterrorism intelligence system. We must steer a course that
    remains true to our commitment to an open society that welcomes
    legitimate immigrants and refugees while concentrating our resources on
    identification of potential of potential terrorists and prevention of
    their entry into the United States.

                       THE NATIONAL INTELLIGENCE DIRECTOR
        As part of the 9/11 story, we spent a very considerable time
    looking at the performance of the Intelligence Community. We identified
    at least six major problems confronting the Intelligence Community that
    became apparent in 9/11 and still continue today.
        First, there are major structural barriers to the performance of
    joint intelligence work. National intelligence is still organized
    around the collection disciplines of the home agencies, not the joint
    mission. The importance of integrated, all-source analysis cannot be
    overstated. Without it, it is not possible to ``connect the dots.''
        Second, there is a lack of common standards and practices across
    the foreign-domestic divide for the collection, processing, reporting,
    analyzing, and sharing of intelligence.
        Third, there is divided management of national intelligence
    capabilities, between the Director of Central Intelligence and the
    Defense Department
        Fourth, the Director of Central Intelligence has a weak capacity to
    set priorities and move funds and other resources;
        Fifth, the Director of Central Intelligence now has at least three
    jobs--running the CIA, running the Intelligence Community, and serving
    as the President's Chief Intelligence Adviser. No one person can
    perform all three.
        Finally, the Intelligence Community is too complex, and too secret.
    Its 15 agencies are governed by arcane rules, and all of its money and
    most of its work is shielded from public scrutiny.
        We come to the recommendation of a National Intelligence Director
    not because we want to create some new ``czar'' or new layer of
    bureaucracy to sit atop the existing bureaucracy. We come to this
    recommendation because we see it as the only way to effect what we
    believe is necessary: a complete transformation of the way the
    Intelligence Community does business.
        We believe that the Intelligence Community needs a wholesale
    Goldwater-Nichols reform of the way it does business. The collection
    agencies should have the same mission as the Armed Services do: they
    should organize, train and equip their personnel. Those intelligence
    professionals, in turn, should be assigned to unified joint commands,
    or in the language of the Intelligence Community, ``Joint Mission
    Centers.'' A joint mission center on WMD and proliferation, for
    example, would bring together the imagery, signals, and HUMINT
    specialists, both collectors and analysts, who would work together
    jointly on behalf of the mission. All the resources of the community
    would be brought to bear on the key intelligence issues as identified
    by the National Intelligence Director.
        We believe you cannot get the necessary transformation of the
    Intelligence Community--smashing the stovepipes and creating joint
    mission centers--unless you have a National Intelligence Director.
        The National Intelligence Director needs authority over all
    intelligence community elements, including authority over personnel,
    information technology and security. Appropriations for intelligence
    should come to him, and he should have the authority to reprogram funds
    within and between intelligence agencies.
        The National Intelligence Director would create, and then oversee
    the joint work done by the intelligence centers. He should have a small
    staff--about the size of the current Community Management Staff.
        He would not be like other ``czars'' who get the title but have no
    meaningful authority. The National Intelligence Director would have
    real authority. He will control National Intelligence Program purse
    strings. He will have hire and fire authority over agency heads in the
    Intelligence Community. He will control the IT. He will have real
    ``troops,'' as the National Counterterrorism Center and all the Joint
    Mission Centers would report to him.
        We concluded that the Intelligence Community just isn't going to
    get its job done unless somebody is in charge. That is just not the
    case now, and we paid the price: information wasn't shared, agencies
    didn't work together. We have to--and can--do better as a government.
        To underscore again, we support a National Intelligence Director
    not for the purpose of naming another Chief to sit on top of all the
    other Chiefs. We support the creation of this position because it is
    the only way to catalyze transformation in the Intelligence Community,
    and manage a transformed Community afterward.

                      THE NATIONAL COUNTERTERRORISM CENTER
        Our report details many unexploited opportunities to disrupt the 9/
    11 plot: failures to watchlist, failures to share information, failure
    to connect the dots. The story of Hazmi and Mihdhar in Kuala Lumpur in
    January 2000 is a telling example. We caught a glimpse of the future
    hijackers, but we lost their trail in Bangkok. Domestic officials were
    not informed until August, 2001 that Hazmi and Mihdhar had entered the
    United States. Late leads were pursued, but time ran out.
        In this and in other examples, we find that no one was firmly in
    charge of managing the case. No one was able to draw relevant
    intelligence from anywhere within the government, assign
    responsibilities across the agencies (foreign or domestic), track
    progress and quickly bring obstacles up to a level where they could be
    resolved. No one was the quarterback. No one was calling the play. No
    one was assigning roles so that government agencies could execute as a
    team.
        We believe the solution to this problem rests with the creation of
    a new institution, the National Counterterrorism Center. We believe, as
    Secretary Rumsfeld told us, that each of the agencies need to ``give up
    some of their existing turf and authority in exchange for a stronger,
    faster, more efficient government wide joint effort.'' We therefore
    propose a civilian-led unified joint command for counterterrorism. It
    would combine intelligence (what the military calls the J-2 function)
    with operational planning (what the military calls the J-3 function) in
    one agency, keeping overall policy direction where it belongs, in the
    hands of the President and the National Security Council.
        Again, we consciously and deliberately draw on the military model,
    the Goldwater-Nichols model. We can and should learn from the
    successful reforms in the military two decades ago. We want all the
    government agencies which play a role in counterterrorism to work
    together in a unified command. We want them to work together as one
    team, in one fight against transnational terrorism.
        The National Counterterrorism Center would build on the existing
    Terrorist Threat Integration Center, and replace it and other terrorism
    ``fusion centers'' within the government with one, unified center.
        The NCTC would have tasking authority on counterterrorism for all
    collection and analysis across the government, across the foreign-
    domestic divide. It would be in charge of warning.
        The NCTC would coordinate anti-terrorist operations across the
    government, but individual agencies would execute operations within
    their competences.
        The NCTC's chief would have control over the personnel assigned to
    the Center, and must have the right to concur in the choices of
    personnel to lead the operating entities of the departments and
    agencies focused on counterterrorism, specifically the top
    counterterrorism officials at the CIA, FBI, Defense and State
    Departments. The NCTC chief would report to the National Intelligence
    Director.
        We appreciate that this is a new and difficult idea for those of us
    schooled in government of the 20th century. We won the Second World War
    and the Cold War because of the great departments of government--the
    State Department, the Defense Department, the CIA, the FBI--organized
    against clear nation-state adversaries. Today, we face a transnational
    threat. It respects no boundaries, and makes no distinction between
    foreign and domestic. The enemy is resourceful, flexible and
    disciplined. We need a system of management that is as flexible and
    resourceful as is the enemy, a system that can bring all the resources
    of government to bear on the problem--and that can change and respond
    as the threat changes. We need a model of government that meets the
    needs of the 21st century. We believe the National Counterterrorist
    Center meets that test.

                         REFORMS AS A COMPLETE PACKAGE
        Taken together, we believe these reforms within the structure of
    the Executive branch, together with reforms in Congress, and the many
    recommendations we have proposed for foreign policy, public diplomacy,
    border and transportation security, and national preparedness--can make
    a significant difference in making America safer and more secure.
        We believe that reforms of executive branch structures, in the
    absence of implementing the other reforms and recommendations in our
    report, will have significantly less value than the value of these
    reforms as a complete package. In short, while we welcome each step
    toward implementation of our recommendations, no one should be mistaken
    in believing that solving structural problems in the executive branch
    addresses completely, or even satisfactorily, the current terrorist
    threat we face.

                         THE ADMINISTRATION'S RESPONSE
        We are gratified by the rapid response of the White House to our
    recommendations. President Bush has acknowledged the need for a
    National Intelligence Director separate from the head of the CIA.
    Senator Kerry shares this judgment. It is our firm belief that the
    National Intelligence Director must have budgetary appropriation
    authority over the agencies of the intelligence community. Moreover, he
    should have hire and fire authority for significant positions within
    the community. A National Intelligence Director without these
    authorities would be, in our view, a mere figurehead, and there would
    be no significant advance over the current arrangement, which we have
    found to be inadequate to protect the nation.

                                   CONCLUSION
        The most important responsibility of government is to protect the
    people.
        We have made specific proposals. We believe they can make our
    country safer and more secure. We invite the American public to join
    the debate.
        We are gratified by the rapid response of the White House to our
    recommendations. We welcome the President's support for a National
    Intelligence Director, and a National Counterterrorism Center. We
    welcome the support of Senator Kerry.
        We look forward to working with you on our recommendations.
        We should seize this historic opportunity and move expeditiously.
    With your counsel and direction, we believe that the nation can, and
    will, make wise choices.
        We would be pleased to respond to your questions.

        Mr. Coble. Mr. Pistol.

      TESTIMONY OF JOHN S. PISTOLE, EXECUTIVE ASSISTANT DIRECTOR,
        COUNTERTERRORISM/COUNTERINTELLIGENCE, FEDERAL BUREAU OF
                             INVESTIGATION

        Mr. Pistole. Good morning, Chairman Coble, Ranking Member
    Scott, Members of the Subcommittee. Thank you for the
    invitation to speak here this morning.
        The FBI has worked closely with the 9/11 Commission staff
    and we commend it for its extraordinary efforts. Throughout
    this process we have approached the Commission's inquiry as an
    opportunity to gain further input from outside experts. We took
    its critique seriously, adapted our ongoing reform efforts, and
    have already taken substantial steps to address its remaining
    concerns.
        First, on the transformation of the FBI under Director
    Mueller's leadership, we have moved aggressively to implement a
    comprehensive plan that has fundamentally transformed the FBI
    with one goal in mind: establishing the prevention of terrorism
    as the Bureau's number one priority.
        Director Mueller has focused on four areas. One is
    centralized our counterterrorism operations; two, expanded our
    intelligence capabilities; three, modernized our business
    practices and technology; and four, improved coordination with
    our partners.
        A number of steps have been taken to--have taken place to
    enhance operational and analytic capabilities and to ensure
    continued sharing of information with our partners at the
    Federal, State, local, tribal and international levels. As a
    result, we have more than doubled the number of
    counterterrorism agents, intelligence analysts, and linguists.
    We have created and expanded the terrorism financing operation
    section. We have become active participants in the Terrorist
    Threat Integration Center and the Terrorist Screening Center.
    We've integrated our intelligence operations with CIA at
    virtually every level. This cooperation will be further
    enhanced as our counterterrorism division continues to colocate
    with the CIA's Counterterrorist Center and the TTIC.
        We have also expanded the number of joint terrorism task
    forces from 34 prior to 9/11, to currently 100 nationwide. We
    have created and refined new information sharing systems and
    centralized the management of our CT program to ensure
    consistency of CT priorities and strategy, integrated CT
    operations domestically and overseas, improved coordination
    with other agencies and governments and to make senior managers
    accountable for the overall development and success of our CT
    efforts.
        In our intelligence program we've recognized that a strong
    enterprise-wide intelligence program is critical to our success
    across all investigations. And we have worked to develop a
    strong intelligence capability and to integrate intelligence
    into every investigation and operation across the U.S. and
    across the FBI.
        Along those lines we have stood up the Offices of
    intelligence with Maureen Baginski, my colleague, as Executive
    Director for Intelligence.
        We have established a formal analyst training program.
        We have developed and are in the process of executing
    concepts of operations governing all aspects of the
    intelligence process.
        We have established a Requirements and Collection
    Management Unit to identify intelligence gaps and developed
    collection strategies to fill those gaps.
        We have established Reports Officers positions and Field
    Intelligence Groups in each of our field offices.
        The FBI's Joint Terrorism Task Force program continues to
    be the U.S. Government's primary operational arm for preventing
    and investigating terrorist attacks in the United States. As I
    mentioned, we now have 100 nationwide.
        Details on our efforts in counterproliferation and the new
    workforce are included in my written statement. I won't go into
    details at this time in my oral statement.
        On August 2nd, the President announced his intention to
    establish a national intelligence director to take on the
    responsibility of principal intelligence advisor and head of
    the Intelligence Community at a national counterterrorism
    center. While the details of these two new entities are still
    being worked out, the FBI does agree that operations and
    intelligence need to be intertwined and complementary to each
    other. We believe that concerns regarding civil liberties must
    be appropriately addressed in all that is proposed. This will
    require paying particular attention to legal and historical
    differences regarding the question of information in the United
    States and overseas.
        We look forward to working with you and your Subcommittee
    on the functions of both the NID and NCTC. The 9/11
    Commission's recommendations will enhance the FBI's capability
    by providing more robust intelligence-focused organizational
    structure, workforce, and infrastructure.
        The FBI looks forward to an ongoing public discussion of
    ways to support the Intelligence Community's CT capabilities,
    collection mission, and collection support mission, and to
    further enhance information sharing and collaboration with the
    intelligence and law enforcement communities.
        Again, the FBI would like to thank the 9/11 Commission for
    its public service. And I thank you for inviting me here today
    to testify before the Subcommittee. Thank you, Mr. Chairman.
        Mr. Coble. Thank you, Mr. Pistole.
        [The prepared statement of Mr. Pistole follows:]
                     Prepared Statement of John S. Pistole
        Good afternoon Chairman Coble, Ranking Member Scott and members of
    the Subcommittee. Thank you for inviting me to speak to you today
    regarding the 9/11 Commission's Recommendations, specifically those
    recommendations that focus on the creation of a National Intelligence
    Director, creating a specialized and integrated national security
    workforce at the FBI, and targeting the networks that provide material
    support to terrorism. The FBI has worked closely with the 9/11
    Commission and its staff and we commend it for an extraordinary effort.
    Throughout this process, we have approached the Commission's inquiry as
    an opportunity to gain further input from outside experts. We took its
    critiques seriously, adapted our ongoing reform efforts, and have
    already taken substantial steps to address its remaining concerns. We
    are gratified and encouraged that the Commission has embraced our
    vision for change and recognized the progress that the men and women of
    the FBI have made to implement that vision. We agree with the
    Commission that much work remains to be done, and will consider its
    findings and recommendations as we refine our continuing transformation
    efforts.

                           TRANSFORMATION OF THE FBI
        Under the leadership of Director Mueller, the FBI has moved
    aggressively forward to implement a comprehensive plan that has
    fundamentally transformed the FBI with one goal in mind: establishing
    the prevention of terrorism as the Bureau's number one priority. No
    longer are we content to concentrate on investigating terrorist crimes
    after they occur; the FBI now is dedicated to disrupting terrorists
    before they are able to strike. Director Mueller has overhauled our
    counterterrorism operations, expanded our intelligence capabilities,
    modernized our business practices and technology, and improved
    coordination with our partners.
        At the FBI we are taking full advantage of our dual role as both a
    law enforcement and an intelligence agency. As we continue to transform
    the FBI to address the priorities articulated by the Director, a number
    of steps have taken place to enhance operational and analytical
    capabilities and to ensure continued sharing of information with our
    partners at the federal, state, local, tribal, and international
    levels. As a result:

              We have more than doubled the number of
            counterterrorism Agents, intelligence analysts, and linguists.

              We created and expanded the Terrorism Financing
            Operations Section which is dedicated to identifying, tracking,
            and cutting off terrorist funds.

              We are active participants in the Terrorist Threat
            Integration Center (TTIC) and the Terrorist Screening Center
            (TSC), which provide a new line of defense against terrorism by
            making information about known or suspected terrorists
            available to the national security, homeland security, and law
            enforcement communities.

              We have worked hard to break down the walls that have
            sometimes hampered our coordination with our partners in
            federal, state and local law enforcement. Today, the FBI and
            CIA are integrated at virtually every level of our intelligence
            operations. This cooperation will be further enhanced as our
            Counterterrorism Division continues to co-locate with the DCI's
            Counter Terrorist Center and the multi-agency Terrorist Threat
            Integration Center.

              We expanded the number of Joint Terrorism Task Forces
            (JTTF) from 34 to 100 nationwide.

              We created and refined new information sharing
            systems, such as the FBI National Alert System and the
            interagency Alert System that electronically link us with our
            domestic partners.

              We have sent approximately 275 FBI executives to the
            Kellogg School of Management at Northwestern University to
            receive training on executive leadership and strategic change.

        We centralized management of our Counterterrorism Program at
    Headquarters to limit ``stove-piping'' of information, to ensure
    consistency of counterterrorism priorities and strategy across the
    organization, to integrate counterterrorism operations domestically and
    overseas, to improve coordination with other agencies and governments,
    and to make senior managers accountable for the overall development and
    success of our counterterrorism efforts.
        Recognizing that a strong, enterprise-wide intelligence program is
    critical to our success across all investigations, we have worked
    relentlessly to develop a strong intelligence capability and to
    integrate intelligence into every investigation and operation across
    the FBI:

              We stood up the Office of Intelligence, under the
            direction of a new Executive Assistant Director for
            Intelligence. The Office of Intelligence sets unified
            standards, policies, and training for analysts, who examine
            intelligence and ensure it is shared with our law enforcement
            and intelligence partners. The Office of Intelligence has
            already provided over 2,600 intelligence reports and other
            documents for the President and members of the Intelligence
            Community.

              We established a formal analyst training program. We
            are accelerating the hiring and training of analytical
            personnel, and developing career paths for analysts that are
            commensurate with their importance to the mission of the FBI.

              We developed and are in the process of executing
            Concepts of Operations governing all aspects of the
            intelligence process--from the identification of intelligence
            requirements to the methodology for intelligence assessment to
            the drafting and formatting of intelligence products.

              We established a Requirements and Collection
            Management Unit to identify intelligence gaps and develop
            collection strategies to fill those gaps.

              We established Reports Officers positions and Field
            Intelligence Groups in the field offices, whose members review
            investigative information--not only for use in investigations
            in that field office--but to disseminate it throughout the FBI
            and among our law enforcement and Intelligence Community
            partners.

         PREVENTING TERRORISM AT HOME AND AGAINST U.S. INTERESTS ABROAD
        The FBI's JTTF Program continues to have primary operational
    responsibility for terrorism investigations that are not related to
    ongoing prosecutions. Since September 11th, the FBI has increased the
    number of JTTFs nationwide from 34 to 100. The JTTFs are comprised of
    FBI Special Agents and personnel from other federal, state, local and
    tribal government and law enforcement agencies. We also established the
    National Joint Terrorism Task Force (NJTTF) at FBI Headquarters,
    staffed by representatives from 38 federal, state, and local agencies.
    The mission of the NJTTF is to enhance communication, coordination, and
    cooperation by acting as the hub of support for the JTTFs throughout
    the United States, providing a point of fusion for intelligence
    acquired in support of counterterrorism operations.
        In addition, we continue to grow the Field Intelligence Groups
    (FIGs) established in every FBI field office and are on track to add
    some 300 Intelligence Analysts to the FIGs in FY 2004. The FIGs conduct
    analysis, direct the collection of information to fill identified
    intelligence gaps, and ensure that intelligence is disseminated
    horizontally and vertically to internal and external customers,
    including our State, local and tribal law enforcement partners.
        We have also improved our relationships with foreign governments by
    building on the overseas expansion of our Legat Program; by offering
    investigative and forensic support and training, and by working
    together on task forces and joint operations. Finally, the FBI has
    expanded outreach to minority communities, and improved coordination
    with private businesses involved in critical infrastructure and
    finance.

                              INTELLIGENCE PROGRAM
        At the FBI, we recognize that a prerequisite for any operational
    coordination is the full and free exchange of information. Without
    procedures and mechanisms that both appropriately protect the privacy
    of information and allow information sharing on a regular and timely
    basis, we and our partners cannot expect to align our operational
    efforts to best accomplish our shared mission. Accordingly, we have
    taken steps to establish unified FBI-wide policies for sharing
    information and intelligence both within the FBI and outside it. This
    has occurred under the umbrella of the FBI(s Intelligence Program.
        The mission of the FBI(s Intelligence Program is to optimally
    position the FBI to meet current and emerging national security and
    criminal threats by (1) aiming core investigative work proactively
    against threats to US interests, (2) building and sustaining
    enterprise-wide intelligence policies and human and technical
    capabilities, and (3) providing useful, appropriate, and timely
    information and analysis to the national security, homeland security,
    and law enforcement communities.
        We built the FBI Intelligence Program on the following core
    principles:

              Independent Requirements and Collection Management:
            While intelligence collection, operations, analysis, and
            reporting are integrated at headquarters divisions and in the
            field, the Office of Intelligence manages the requirements and
            collection management process. This ensures that we focus
            intelligence collection and production on priority intelligence
            requirements and on filling key gaps in our knowledge.

              Centralized Management and Distributed Execution: The
            power of the FBI intelligence capability is in its 56 field
            offices, 400 resident agencies and 56 legal attache offices
            around the world. The Office of Intelligence must provide those
            entities with sufficient guidance to drive intelligence
            production effectively and efficiently, but not micro-manage
            field intelligence operations.

              Focused Strategic Analysis: The Office of
            Intelligence sets strategic analysis priorities and ensures
            they are carried out both at headquarters and in the field.

              Integration of Analysis with Operations: Intelligence
            analysis is best when collectors and analysts work side-by-side
            in integrated operations.

        Concepts of Operations (CONOPs) guide FBI intelligence processes
    and detailed implementation plans drive specific actions to implement
    them. Our CONOPs describe the Intelligence Requirements and Collection
    Management system and are supported by lower-level collection and
    collection support processes and procedures defined in our Intelligence
    Requirements and Collection Management Handbook. These concepts and
    processes complement FBI operations and are enhanced by the
    Commission's recommendations.
        What follows are some of our key accomplishments:

              We have issued our first ever FBI collection tasking
            for international threats, including international terrorism.
            We based those requirements on the National Intelligence
            Priorities Framework and, in cooperation with the Intelligence
            Community, issued an unclassified version for our partners in
            state and local law enforcement.

              We have inventoried our collection capability. We
            created an on-line inventory of all our collection sources.
            This tells us what we could know about all threats.

              We are now comparing the intelligence requirements to
            our capabilities and identifying gaps in our ability to produce
            information described in our requirements. Dedicated targeting
            analysts at headquarters and the field then analyze how we
            could fill those gaps by developing new sources. Source
            development tasks are given to each Field Intelligence Group
            (FIG) to execute.

              As a result of this process, we then produce
            information--both raw intelligence reports and finished
            assessments--in response to requirements. Each intelligence
            report requests customer feedback. Based on what we learn, we
            adjust collection and production.

                             COUNTER PROLIFERATION
        In the area of counter-proliferation, our Counterintelligence
    Division is currently in the process of creating a counter-
    proliferation unit in each of its region and issue-oriented operational
    Headquarters sections. While we currently work diligently on
    proliferation matters, this will further the emphasis our fifty six
    field divisions place on counter-proliferation investigations through a
    more robust Bureau-wide orientation. These new units will also form the
    basis for the future creation of a new Counter-proliferation Section at
    FBI Headquarters. This enhanced organizational architecture will enable
    the FBI to meet the growing challenges of world-wide WMD proliferation
    and to continue to protect our national security.

                               THE NEW WORKFORCE
        The FBI is actively working to build a workforce with expertise in
    intelligence. While much remains to be done, we have already taken
    steps to ensure this transformation.
        On March 22, 2004, Director Mueller adopted a proposal to establish
    a career path in which new Special Agents are initially assigned to a
    small field office and exposed to a wide range of field experiences.
    After approximately three years, agents will be transferred to a large
    field office where they will specialize in one of four program areas:
    Intelligence, Counterterrorism/ Counterintelligence, Cyber, or
    Criminal, and will receive advanced training tailored to their area of
    specialization. We are working to implement this new career track.
        Director Mueller has also approved a proposal to establish a formal
    Intelligence Officer Certification that can be earned through a
    combination of intelligence assignments and training. Once established,
    this certification will be a prerequisite for promotion to the level of
    Section Chief at FBIHQ, or Assistant Special Agent in Charge (ASAC) at
    the field level, thus ensuring that all members of the FBI's highest
    management levels will be staffed by fully trained and experienced
    intelligence officers.
        We have implemented a strategic plan to recruit, hire, and retain
    Intelligence Analysts. The Bureau has selected veteran analysts to
    attend events at colleges and universities, as well as designated
    career fairs throughout the country. We executed an aggressive
    marketing plan, and for the first time in FBI history, we are offering
    hiring bonuses for FBI analysts.
        In our Special Agent hiring program, we have updated the list of
    ``critical skills'' we are seeking in candidates to include
    intelligence experience and expertise, foreign languages, and
    technology.
        The FBI's Executive Assistant Director for Intelligence has been
    given personal responsibility for developing and ensuring the health of
    the FBI intelligence personnel resources. It is important to note that
    the FBI's intelligence cadre is not limited to intelligence analysts,
    but also includes agents, language analysts, surveillance specialists,
    and others. It takes all of these specialists to perform quality
    intelligence production at the FBI. The FBI's plan to create a cradle-
    to-grave career path for intelligence professionals at the FBI
    parallels the one that has existed and functioned so well for our
    agents and has been codified in our Concept of Operations (CONOP) for
    Human Talent for Intelligence Production.
      national intelligence director and national counterterrorism center
        On August 2nd, the President announced his intention to establish a
    National Intelligence Director (NID), to take on the responsibility of
    principle intelligence advisor and head of the Intelligence Community,
    and a National Counter Terrorism Center (NCTC). While the details of
    these two new entities still need to be fleshed out and discussed, the
    FBI does agree that operations and intelligence need to be intertwined
    and complementary to each other. We believe that concerns regarding
    civil liberties must be appropriately addressed in all that is
    proposed. This will require paying particular attention to legal and
    historical differences regarding the collection of information in the
    United States and overseas. We look forward to working with you on the
    functions of both the NID and the NCTC.
        As the Commission points out, we have much work still to do, but we
    have made great progress and continue to move forward in accordance
    with a clear plan. With the support and understanding of lawmakers and
    the American people, I am confident that we will successfully complete
    our transformation and ultimately prevail against terrorists and all
    adversaries who would do harm to our Nation.
        The FBI looks forward to an ongoing public discussion of ways to
    support the Intelligence Community's counterterrorism mission and
    capabilities and to further enhance information sharing and
    collaboration within the Intelligence and Law Enforcement Communities.
    The Commission's recommendations will enhance the FBI's capabilities by
    providing a more robust, intelligence-focused organizational structure,
    work force and infrastructure.
        The FBI thanks the 9/11 Commission for its public service and I
    thank you for inviting me here today to testify before the Committee.
    It will be my pleasure to answer any questions you may have at the
    appropriate time.

        Mr. Coble. Mr. Brennan.

       TESTIMONY OF JOHN O. BRENNAN, DIRECTOR, TERRORIST THREAT
                           INTEGRATION CENTER

        Mr. Brennan. Good morning, Mr. Chairman, and distinguished
    Subcommittee Members. It's an honor and privilege to be before
    you today to talk about the Terrorist Threat Integration
    Center, or TTIC, and the recommendations of the 9/11
    Commission.
        In his State of the Union speech in January 2003, the
    President called for the creation of an integrated center to
    merge and analyze all threat information in a single location.
    On 1 May of last year that vision became a reality with the
    stand up of the TTIC. For the first time in our history a
    multiagency entity has access to information systems and
    databases spanning the intelligence, law enforcement, homeland
    security, diplomatic and military communities that contain
    information related to the threats of international terrorism.
    In fact, TTIC has direct access connectivity to 26 separate
    U.S. Government networks, with more networks coming online,
    enabling information sharing as never before in the U.S.
    Government.
        This unprecedented access to information allows
    comprehensive insight to information related to terrorist
    threats to U.S. interests at home and abroad. Most importantly,
    it enhances the Government's ability to provide this
    information and related analysis to those responsible for
    detecting, disrupting, deterring and defending against
    terrorist attacks.
        There currently exists within the TTIC joint venture real-
    time collaboration among analysts from a broad array of
    agencies and departments who sit side by side sharing
    information and piecing together the scattered pieces of the
    terrorism puzzle. These partners include not only the FBI, CIA,
    and the Departments of State, Defense, and Homeland Security,
    but also other Federal agencies and departments such as the
    Nuclear Regulatory Commission, the Department of Health and
    Human Services, and the Department of Energy.
        This integration of perspectives from multiple agencies and
    departments represented in TTIC is serving as a force
    multiplier in the fight against terrorism. On a strategic level
    TTIC works with the community to provide the President and key
    officials a daily analytic product on the most serious
    terrorist threats and related terrorism information that serves
    as a common foundation for decision-making regarding the
    actions necessary to disrupt terrorist plans.
        Rather than multiple threat assessments and disparate
    information flows on the same subject matter being forwarded
    separately to senior policymakers, information and finished
    analysis are now fused in a multiagency environment so that an
    integrated and comprehensive threat picture is provided. If
    there are analytic differences, they are incorporated into
    analysis.
        The Terrorist Threat Integration Center embodies several of
    the characteristics envisioned by the 9/11 Commission report
    for the proposed national counterterrorism center. TTIC is an
    existing joint intelligence center, staffed by personnel from
    various agencies and well positioned to integrate all sources
    of terrorism information. It is likely for those reasons that
    the Commission recommends that TTIC serve as the foundation of
    a new national counterterrorism center. As a long time
    proponent of structural reform of the Intelligence Community, I
    fully and personally support the integration concept and the
    establishment of a national counterterrorist center.
        In the weeks and months ahead I look forward to working
    with TTIC's partner agencies, the Congress, and the White House
    to build upon TTIC's strong foundation and create a national
    counterterrorism center. The potential benefits of a national
    counterterrorism center are enormous. So too, however, are the
    challenges associated with Government transformation. I have
    experienced those challenges firsthand over the past 15 months
    in the establishment and development of TTIC. Together we will
    need to determine how to implement the national
    counterterrorism center in a thoughtful and evolutionary manner
    so that we do not adversely affect ongoing activities in the
    global war on terrorism which is so ably led by the different
    departments and agencies throughout the U.S. Government.
        Thank you, Mr. Chairman. I look forward to taking your
    questions.
        Mr. Coble. Thank you, Mr. Brennan.
        [The prepared statement of Mr. Brennan follows:]
                     Prepared Statement of John O. Brennan
        Good afternoon, Chairman Coble, Congressman Scott, and Subcommittee
    members.
        It is an honor to appear before you today to talk about the
    Terrorist Threat Integration Center, TTIC, and discuss the
    recommendations of the 9/11 Commission, specifically the creation of
    the National Counterterrorism Center as announced by the President.
        As this Committee knows, the President has embraced the
    Commission's recommendation for the creation of a centralized
    organization to integrate terrorist threat information. The President's
    formal announcement to establish a National Counterterrorism Center is
    a natural extension of the work and successes the administration has
    already achieved through the establishment of TTIC.
        In his State of the Union speech, in January 2003, the President
    called for the creation of an integrated center to merge and analyze
    all threat information in a single location. On May of last year, that
    vision became a reality with the stand-up of TTIC. Over the past 15
    months, TTIC has endeavored to optimize the U.S. Government's knowledge
    and formidable capabilities in the fight against terrorism.
        For the first time in our history, a multi-agency entity has access
    to information systems and databases spanning the intelligence, law
    enforcement, homeland security, diplomatic, and military communities
    that contain information related to the threat of international
    terrorism. In fact, TTIC has direct-access connectivity with 26
    separate U.S. Government networks--with more networks coming on-line--
    enabling information sharing as never before in the U.S. Government.
        This unprecedented access to information allows us to gain
    comprehensive insight to information related to terrorist threats to
    U.S. interests at home and abroad. Most importantly, it enhances the
    Government's ability to provide this information and related analysis
    to those responsible for detecting, disrupting, deterring, and
    defending against terrorist attacks.
        In addition, there currently exists within the TTIC joint venture,
    real-time collaboration among analysts from a broad array of agencies
    and departments who sit side-by-side, sharing information and piecing
    together the scattered pieces of the terrorism puzzle. These partners
    include not only the FBI, CIA and the Departments of State, Defense and
    Homeland Security, but also other federal agencies and departments such
    as the Nuclear Regulatory Commission, the Department of Health and
    Human Services, and the Department of Energy.

              As envisioned by the President, this physical
            integration of expertise and sharing of information enables and
            empowers the key organizations involved in the fight against
            terrorism. Collectively, they are fulfilling their shared
            responsibilities in a fused environment, ``doing business''
            jointly as TTIC. This fusion and synergy will be further
            enhanced when CIA's Counterterrorist Center and FBI's
            Counterterrorism Division collocate with TTIC in the coming
            months.

              This integrated business model not only capitalizes
            on our respective and cumulative expertise, but it also
            optimizes analytic resources in a manner that allows us to
            cover more effectively and comprehensively the vast expanse of
            terrorist threats that will face the Homeland and U.S.
            interests worldwide for the foreseeable future.

        This integration of perspectives from multiple agencies and
    departments represented in TTIC is serving as a force multiplier in the
    fight against terrorism. On a strategic level, TTIC works with the
    Community to provide the President and key officials a daily analytic
    product on the most serious terrorist threats and related terrorism
    information that serves as a common foundation for decision making
    regarding the actions necessary to disrupt terrorist plans. Rather than
    multiple threat assessments and disparate information flows on the same
    subject matter being forwarded separately to senior policymakers,
    information and finished analysis are now fused in a multi-agency
    environment so that an integrated and comprehensive threat picture is
    provided. If there are analytic differences on the nature or
    seriousness of a particular threat, they are incorporated into the
    analysis.
        As is evident, the Terrorist Threat Integration Center embodies
    several of the characteristics envisioned by the 9/11 Commission report
    for the proposed ``National Counterterrorism Center.'' TTIC is an
    existing center for ``joint intelligence, staffed by personnel from the
    various agencies'' and well positioned to ``integrate all sources of
    information to see the enemy as a whole.'' It is likely for those
    reasons that the Commission recommends that TTIC serve as the
    foundation of a new National Counterterrorism Center. As a long-time
    proponent of structural reform of the Intelligence Community, I fully
    support the integration concept and the establishment of a National
    Counterterrorism Center.
        In the weeks and months ahead, I look forward to working with
    TTIC's partner agencies, the Congress, and the White House to build
    upon TTIC's strong foundation and create a National Counterterrorism
    Center. The potential benefits of a National Counterterrorism Center
    are enormous. So too, however, are the challenges associated with
    Government transformation. I have experienced those challenges
    firsthand over the past 15 months in the establishment and development
    of TTIC. Together, we will need to determine how to implement the
    National Counterterrorism Center in a thoughtful and evolutionary
    manner so that we do not adversely affect ongoing activities in the
    global war on terrorism which are so ably led by my colleagues on this
    panel.
        In conclusion, I believe the benefits to be gained from this
    integration concept, as envisioned by the President and called for by
    the 9/11 Commission, strongly support the creation of a National
    Counterterrorism Center, and I look forward to working with you to
    implement a national counterterrorism system that maximizes the
    security and safety of all Americans wherever they live or work.
        Thank you Mister Chairman. I look forward to taking your questions.

        Mr. Coble. Mr. Nojeim.

     TESTIMONY OF GREGORY T. NOJEIM, ASSOCIATE DIRECTOR AND CHIEF
          LEGISLATIVE COUNSEL, AMERICAN CIVIL LIBERTIES UNION

        Mr. Nojeim. Thank you, Chairman Coble, Ranking Member
    Scott, Members of the Subcommittee. Thanks for the opportunity
    to testify before you today on behalf of the ACLU about the
    recommendations of the 9/11 Commission. The ACLU is a
    nationwide, non-partisan organization of 400,000 members
    dedicated to protecting the principles of freedom and equality
    set forth in our Nation's Constitution and our civil rights
    laws.
        The ACLU supports intelligence and other reforms that are
    calculated to make us both more secure and to secure liberty.
    We recognize the real continuing threat that terrorism poses.
    We also recognize that securing the Nation means securing the
    freedoms that make our Nation great.
        The Commission's report proposes major structural changes
    to address intelligence failures. It is to be commended for its
    work and for recognizing that many of its recommendations call
    for the Government to increase its presence in the lives of
    Americans. This, and the proposed consolidation of intelligence
    powers, pose challenges to civil liberties that must be
    addressed.
        My written testimony includes 19 recommendations calculated
    to protect civil liberties. I will focus on four of them.
        First, the Judiciary Committees in the House and Senate
    should retain jurisdiction to conduct oversight over domestic
    intelligence and criminal surveillance and over governmental
    actions to fight terrorism that affect legal and constitutional
    rights. This may seem an unusual position for the ACLU. After
    all, more civil liberties lawsuits challenge the
    constitutionality of statutes that come out of the Judiciary
    Committee than from any other.
        At the same time, though, the Judiciary Committee conducts
    vigorous oversight openly and it takes significant statutory
    steps to preserve civil liberties. The Committee's
    determination to report to the full House H.R. 338, the Federal
    Agency Protection of Privacy Act, is a good example. It would
    require Federal agencies to consider the privacy impact of the
    regulations they propose and adopt. Limiting the number of
    congressional Committees with oversight duties may frustrate,
    rather than enhance, congressional oversight.
        Second, we support the Commission's call for a civil
    liberties oversight board that would become the office that
    looks at actions taken government-wide to protect America. It
    would ensure that liberty concerns are appropriately
    considered. As Commission Vice Chair Hamilton recognized, the
    civil liberties board must have enough clout to make Federal
    agencies respond to it. And that means it must have subpoena
    power. It should be independent, nonpartisan, and open. It
    should be both a proactive voice for civil liberties while
    policies are being formulated, and it should be able to look
    retrospectively at patterns of civil liberties abuses. It would
    supplement, not supplant, the Inspectors General.
        By helping focus security measures on truly dangerous
    people and not on everyone else, a civil liberties board serves
    both the causes of liberty and security. Remember, a security
    system that spends 20 hours treating Senator Ted Kennedy and
    Representative John Lewis as potential terrorists has 20 fewer
    hours to identify the next Mohammad Atta.
        Third, should Congress create a national intelligence
    director, it should not put it in the Executive Office of the
    President. The President himself shares this view, as does the
    Ranking Member of the House Intelligence Committee,
    Representative Harman, and the Ranking Member of the Senate
    Armed Services Committee, Senator Levin. To locate this
    function in the President's Office could complicate
    congressional oversight with claims of executive privilege and
    would risk politicizing the use of intelligence power.
        Finally, we urge you to reject the federalization of
    identity documents issued by the States, a back door to a
    national identification card. Once the Federal Government tells
    the States what can and cannot go on the card and what data
    will be behind the card, the card will be required to clear and
    track all manner of transactions now conducted freely and
    privately. Businesses will want to see and swipe the card and
    they will use the identifiers on the card to track customer
    purchases and activities.
        We urge you, finally, to act with care as you consider the
    Commission's recommendations. Changes to the structure of the
    Intelligence Community will last generations. Mistakes could be
    very costly. Any such changes should be accompanied by measures
    to ensure that America remains not only safe but free. Thank
    you.
        Mr. Coble. Thank you Mr. Nojeim.
        [The prepared statement of Mr. Nojeim follows:]
                    Prepared Statement of Gregory T. Nojeim
        Chairman Coble, Ranking Member Scott and Members of the
    Subcommittee:
        I am pleased to appear before you today on behalf of the American
    Civil Liberties Union and its more than 400,000 members, dedicated to
    preserving the principles of the Constitution and Bill of Rights, to
    explain the ACLU's views on the recommendations in the Final Report of
    the National Commission on Terrorist Attacks Upon the United States
    (``9/11 Commission report'').
        The 9/11 Commission report exhaustively details significant
    failures of the intelligence agencies, including the Federal Bureau of
    Investigation (FBI) and the Central Intelligence Agency (CIA), and
    proposes major structural changes to address those failures. The report
    contains helpful suggestions on privacy and civil liberties, proposing
    a Civil Liberties Protection Board and a framework for judging anti-
    terrorism powers including the USA PATRIOT Act. The report also
    endorses more effective oversight of the intelligence community, and
    real reform of excessive secrecy.
        The report also contains detailed discussion of border and
    transportation security issues, including airline screening, the ``no
    fly'' list that has stranded many innocent travelers, and passenger
    profiling. By endorsing an expansion of intrusive border screening to
    domestic travel, the report's recommendations could--if implemented
    without change--result in a ``checkpoint society'' in which a
    federally-standardized drivers license serves as a ``national ID'' and
    internal passport.
        As the 9/11 Commission itself acknowledges, ``many of our
    recommendations call for the government to increase its presence in our
    lives. . . .'' (p. 395). In fact, as outlined, a number of specific
    proposals could have serious unintended consequences that would be
    highly detrimental for basic civil liberties. Legislation must include
    significant changes to some recommendations to protect civil liberties.
    The Commission's proposals to advance civil liberties--including
    increased oversight, reduced secrecy and a Civil Liberties Protection
    Board--must be implemented to ensure that, as the government
    centralizes some powers, it provides stronger checks and balances.
        No one doubts the necessity of reorienting an intelligence
    community built to fight the Cold War to focus on the national security
    threats of the 21st Century. The ACLU strongly favors reforming the
    intelligence community in a way that enhances national security,
    encourages openness, and protects civil liberties.
        This testimony outlines specific recommendations for how to
    implement the reforms proposed by the Commission without eroding basic
    freedoms.

       THE NATIONAL INTELLIGENCE DIRECTOR AND NATIONAL COUNTER-TERRORISM
                                     CENTER
        Recommendation #1: The National Intelligence Director (NID) should
    not be a Cabinet or White House official and the National Counter-
    Terrorism Center (NCTC) should not placed in the Executive Office of
    the President, nor should stronger community-wide powers be given to an
    official who continues to head the CIA. A new head of the intelligence
    community, if one is created, should instead head an independent Office
    of the Director of National Intelligence.
        In a democratic society, domestic surveillance must serve the goals
    of preventing terrorism, espionage and other serious crime, not the
    political goals of the party in power. As we have learned from past
    mistakes, the temptation to use the intelligence community to further a
    political agenda is ever-present.
        Misuse of both foreign and domestic intelligence powers for
    political ends can occur under any Administration. Direct White House
    control of intelligence powers and access to sensitive intelligence
    files have been responsible for serious mistakes that undermine civil
    liberties and accountability, and have lessened the confidence of
    Americans in their government. For example, the worst spying abuses of
    the Nixon Administration were directed by White House staff with
    intelligence backgrounds and included warrentless secret searches to
    obtain medical records, covert wiretaps of journalists, and the
    Watergate break-in itself. Under President Reagan, a covert operation
    conducted by National Security Council staff member Lt. Col. Oliver
    North led to the most serious crisis of Reagan's presidency when it was
    revealed that the operation involved trading arms for hostages and
    using the proceeds to provide assistance to Nicaraguan rebels. Under
    President Clinton, White House political staff obtained hundreds of
    confidential FBI files on prominent Republicans that had been created
    from extensive background checks designed to protect national security.
        In spite of these lessons, the 9/11 Commission's recommendations
    place effective control over the intelligence community--including
    parts of the FBI, Department of Homeland Security, and other agencies
    that exercise domestic surveillance powers--in the Executive Office of
    the President (the White House) and fail to include any mechanism (such
    as a fixed term) to ensure the National Intelligence Director's
    autonomy. The proposal seriously increases the risk of spying for
    political ends.
        The proposed structure centralizes too much power over both foreign
    and domestic intelligence in the White House, and risks a re-run of the
    mistakes that led to Watergate, Iran-contra, ``Filegate,'' and other
    significant abuses of Presidential power.
        The placement of the National Intelligence Director in the White
    House could also frustrate Congressional oversight. White House
    officials have long received, on separation of powers grounds, far less
    scrutiny from Congress than agency heads and other Executive Branch
    officials. White House officials are not usually subject to Senate
    confirmation and do not usually testify before Congress on matters of
    policy. Executive privilege may be claimed as a shield for
    conversations between the President and his advisors from both
    Congressional and judicial inquiries.
        President Bush announced on Monday, August 2, a proposal for a
    national intelligence director that is not a White House or Cabinet
    official, but instead heads an independent office. Likewise, bills
    proposed by leading Democratic members of the House and Senate
    intelligence committees do not make that person a White House official.
        Rep. Jane Harman, the ranking member of the House Permanent Select
    Committee on Intelligence, has introduced legislation to create a
    ``Director of National Intelligence.'' Like President Bush's proposal,
    H.R. 4140, the ``Intelligence Transformation Act,'' places the new
    intelligence director in an independent office, not the White House.
    The leading Senate legislation takes the same approach. Senate bills
    include S. 190, the ``Intelligence Community Leadership Act of 2003,''
    sponsored by Senator Feinstein (D-CA) and S. 1520, the ``9/11 Memorial
    Intelligence Reform Act,'' sponsored by Senators Graham (D-FL),
    Feinstein (D-CA) and Rockefeller (D-WV).
        The ACLU supports placing a new intelligence director in an
    independent office. The National Intelligence Director and the National
    Counter-Terrorism Center, if they are established, should be
    accountable to the President, but they should not be servants of the
    President's political or ideological agenda.
        Pitfalls of greater power for head of the CIA. Rep. Porter Goss (R-
    FL), President Bush's nominee for Director of Central Intelligence
    (DCI), has introduced a different intelligence reorganization bill,
    H.R. 4584, the ``Directing Community Integration Act.'' The Goss bill
    rejects a new intelligence director and instead enhances the powers of
    the DCI over community-wide responsibilities, including domestic
    collection of intelligence, while leaving the DCI as the head of the
    CIA.
        The Goss bill is, in some respects, even worse than the
    Commission's proposal for a White House NID, because it contemplates
    much greater involvement of the DCI--the head of a foreign intelligence
    agency--in domestic intelligence matters. The Goss bill would even go
    so far as to render toothless the current prohibition on CIA
    involvement in domestic activities by amending it to bar ``police,
    subpoena, or law enforcement powers within the United States, except as
    otherwise permitted by law or as directed by the President.'' \1\
    ---------------------------------------------------------------------------
        \1\ H.R. 4584 Sec. 102(a) (amending 50 U.S.C. Sec. 401-1(c) and
    repealing Sec. 403-3(d) (emphasis added)).
    ---------------------------------------------------------------------------
        The proposed amendment would erase a fundamental limitation on CIA
    authority that prevents the use of CIA-style covert operations and
    intelligence techniques--including warrantless surveillance, break-ins,
    and infiltration and manipulation of political groups--from being used
    in the United States against Americans.
        Recommendation #2: The National Intelligence Director must be
    subject to Senate confirmation and Congressional oversight, and should,
    like the Director of the CIA, have a fixed term that does not coincide
    with that of the President.
        Congress must ensure that the National Intelligence Director is
    appointed by and with the advise and consent of the Senate, and that
    the NID will regularly testify before Congress. The Office of the NID
    and the NCTC must also be answerable to Congress. Congress must make
    clear that key officials will be asked to testify and that the NID and
    the NCTC are expected to provide answers to questions, relevant
    documents, and cooperate with Congressional inquiries.
        The Commission recommends that the Director of the CIA should serve
    a fixed term, like the Director of the FBI, that does not coincide with
    the President's term. Insulating the CIA further from political
    pressure is a welcome step.
        Ensuring the intelligence community works well together is an
    extremely important responsibility that must remain above partisan
    politics or the appearance of serving an ideological agenda. The
    President should, of course, appoint the National Intelligence
    Director, with Senate approval, and should retain the power to fire the
    director for poor performance. As with the head of the FBI or the
    Chairman of the Federal Reserve Board, however, the director should
    serve a fixed term that does not coincide with the President's term.
        Recommendation #3: To ensure the FBI retains control of domestic
    surveillance operations, the head of the FBI's intelligence operations
    must report to the FBI Director and the Attorney General, not to the
    National Intelligence Director or another intelligence official.
        The United States has--historically and to the present day--
    entrusted the domestic collection of information about spies,
    terrorists, and other national security threats to federal and state
    law enforcement, with the FBI playing the most important role. The
    reason is simple: Americans do not believe the government should
    investigate you if you are not involved in a crime--if your activities,
    however unpopular, are not illegal.
        For this reason, the CIA--a pure spy agency with no law enforcement
    functions--has been barred from domestic surveillance ever since it was
    created by the National Security Act in 1947. President Truman--a
    strong opponent of Communism and a hawk on security--shared the
    concerns of many Americans about the CIA's establishment as a peacetime
    agency. Truman believed that a permanent secret spy agency could, if
    allowed to operate on American soil, use espionage techniques--
    including blackmail, extortion and disinformation--against American
    citizens who were critical of government policy or the incumbent
    administration, but had broken no law. With Truman's support, the
    National Security Act, sometimes described as the CIA's ``charter,''
    contains a prohibition--which stands today--on the CIA's exercising any
    ``police, subpoena, or law enforcement powers or internal security
    functions.'' \2\
    ---------------------------------------------------------------------------
        \2\ 50 U.S.C. Sec. 403-3(d)(1).
    ---------------------------------------------------------------------------
        Truman's concerns were not just with bureaucratic turf--whether the
    FBI or the CIA was the lead agency in collecting information about
    national security threats within the United States. Truman believed
    that the domestic collection of information about national security
    threats should generally be handled as a law enforcement matter.
    Indeed, Truman often clashed with FBI Director Hoover over whether the
    FBI had any business using break-ins, illegal wiretaps, and other spy
    techniques, at one point saying Hoover's advocacy of such methods
    risked transforming the FBI into the equivalent of the Gestapo.\3\
    Truman did not just want to prevent the CIA itself from operating on
    American soil--he wanted to ensure that a CIA-style agency did not
    become dominant in domestic collection of intelligence about national
    security threats.
    ---------------------------------------------------------------------------
        \3\ See Curt Gentry, J. Edgar Hoover: The Man and the Secrets
    (2001).
    ---------------------------------------------------------------------------
        The 9/11 Commission proposes that the NID hires both the FBI's
    Director of Intelligence and the intelligence chief of the Department
    of Homeland Security, either of whom may serve as the deputy NID for
    homeland intelligence. This proposal is very problematic. The
    Commission proposal puts the FBI's intelligence capabilities in the
    hands of a super-spy who could involve in domestic spying officials of
    the CIA and other agencies that use the methods of agencies that
    operate overseas--such as break-ins, warrantless surveillance, or
    covert operations.
        While a NID could play a role in coordinating the activities of the
    Intelligence Community, the NID should not be given, as the
    Commission's proposal currently contemplates, what amounts to control
    over targets of intelligence collection within the United States. That
    should remain the responsibility of the FBI Director, under the
    supervision of the Attorney General.
        Recommendation #4: The FBI Director and the Attorney General should
    have the responsibility to ensure that the guidelines and rules that
    govern domestic surveillance in both criminal and national security
    investigations are followed. The guidelines must be strengthened. While
    they may continue to allow ``enterprise investigations'' of criminal
    organizations including foreign and domestic terrorist organizations,
    they should clearly prohibit domestic spying on First Amendment-
    protected activity.
        The FBI's own mistakes and missteps show the dangers of a powerful
    government agency that uses its investigating authority without regard
    to whether the subjects of its investigations are involved in criminal
    activities. To a large degree, these abuses were the result of the
    FBI's unique lack of accountability to the courts, Congress and even
    the Attorney General under the direction of FBI Director J. Edgar
    Hoover.
        Today, as a result of the Church Committee reforms, the FBI
    operates under both internal and external controls that constrain its
    criminal and national security investigations. These controls are
    designed to ensure that its intrusive intelligence-gathering and
    criminal surveillance powers are directed at organizations involved in
    criminal activities and at the investigation of foreign agents and not
    at lawful political, religious and other First Amendment activities.
    Controls that protect civil liberties include guidelines for FBI
    investigations, constitutional limits enforced by the exclusionary
    rule, and the ``case-oriented'' focus of the FBI. Putting a spy chief
    in charge of parts of the FBI could seriously erode each of these
    controls.
        Domestic terrorism guidelines. For criminal investigations of
    organized crime or domestic terrorism, Attorney General guidelines
    restrict the use of most surveillance techniques--such as tracking
    mail, following suspects, and interviewing witnesses--to situations
    where there is at least some indication of criminal activity. These
    guidelines were weakened, following September 11, to allow FBI agents
    to visit, on a clandestine basis, political and religious meetings that
    are ``open to the public'' without any such indication. The ACLU and
    many members of the House and Senate judiciary committees opposed this
    change. Most other investigative techniques still do require at least
    some indication of crime.
        International Terrorism Guidelines. National security
    investigations of international terrorist groups are governed by
    separate guidelines, important parts of which are secret. The
    guidelines do not require probable cause of crime but are, in theory,
    designed to restrict national security investigations to circumstances
    in which there is some indication of hostile activity by an agent of a
    foreign power. The most intrusive national security investigations--
    those that involve physical searches or electronic eavesdropping--must
    also at least ``involve'' some possible criminal activity when the
    subject of the investigation is a United States citizen or permanent
    resident, although this falls far short of the constitutional standard
    of criminal probable cause.
        Investigative guidelines are vitally important to preserving civil
    liberties. The government argues that a number of highly intrusive
    intelligence gathering techniques--including collecting files on
    individuals and groups, physical surveillance in public places, and
    tracking the sender and recipient of mail, telephone and Internet
    communications--are not constitutional ``searches'' subject to the
    Fourth Amendment's probable cause standards. As a result, for
    investigations using such techniques, it is only the guidelines and
    case-oriented structure of the investigating agency that protects
    against widespread spying on lawful political and religious activities.
        The Constitution and the exclusionary rule. For those intrusive
    techniques that the government concedes are searches--including
    electronic eavesdropping of the content of communications and searches
    of a person's home or office--the Fourth Amendment and federal statutes
    plainly require court approval based on probable cause. However, the
    Fourth Amendment's principal remedy, the exclusionary rule that
    provides illegally-obtained evidence may not be used in court, does
    nothing to hinder illegal searches and wiretaps if the government does
    not plan to use the information in a prosecution.
        The danger is certainly exacerbated by putting the FBI's
    intelligence operations in the hands of the government's ``top spy''
    instead of its ``top cop.'' The FBI Director could, of course, direct
    abuses on the theory that the information is to be used for
    intelligence purposes rather than criminal prosecution and so need not
    be gathered legally. The danger would be far greater, however, if the
    FBI's national security operations are under the effective control of
    intelligence officials who are used to operating entirely outside the
    constraints of the exclusionary rule.
        The FBI's case-oriented approach. The FBI's focus on both criminal
    and intelligence ``cases'' helps prevent highly intrusive and sensitive
    investigations that may involve religious and political activities that
    are protected by the First Amendment from losing all focus on crime and
    terrorism. This focus is vitally important to civil liberties, and
    could be lost if a spy chief is placed in charge of parts of the FBI.
        Critics of placing the FBI in charge of domestic national security
    surveillance argue that the case-oriented mindset of a law enforcement
    agency cannot be reconciled with quality intelligence analysis. While
    the FBI concerns itself with gathering information of relevance to
    particular cases, they argue, intelligence analysts must be looking
    more broadly to see how specific data fits into the ``big picture'' of
    a national security threat.
        This critique sweeps too broadly because it fails to recognize the
    difference between two very different kinds of cases. The FBI not only
    investigates particular crimes--generally, crimes that have already
    occurred and must be ``solved''--it also opens ``enterprise''
    investigations of organized crime and terrorism. For example, in
    investigating a domestic funding network for Al Qaeda as a possible
    criminal enterprise, the FBI is not limited to investigating whether
    the organization was involved in funding specific terrorist bombings or
    other attacks, such as the 1998 embassy bombings in Africa, the 1999
    bombing of the U.S.S. Cole, or the September 11 attacks. Rather, the
    FBI has authority to investigate the organization as an enterprise, and
    to fit together bits of information that help prevent future terrorist
    attacks, not just gather information about past crimes. The FBI's
    failures in analyzing information about Al Qaeda's domestic activities
    are not a result of flaws in the basic concept of an enterprise
    investigation; rather, they appear to be the result of a combination of
    other failures that must be addressed on their own terms.
        Recommendation #5: The powers of the NID and the National Counter-
    Terrorism Center should be specified by a statutory charter that
    prohibits powers not authorized and requires the NID to observe
    guidelines to protect against domestic spying on First Amendment
    activity. Explicit, enforceable statutory language should make clear
    that the NID does not have what amounts to operational control of
    targets of domestic surveillance, whether directly or through the NCTC.
        The Commission proposes a powerful new National Counter-Terrorism
    Center under the authority of the NID. The Center, while not itself a
    domestic collection agency, would go beyond the analysis of
    intelligence collected in the United States and abroad that is the
    function of the existing Terrorism Threat Integration Center (TTIC). If
    the Center's powers are not specified, and if it is not barred from
    monitoring First Amendment activities within the United States, the
    Center could task domestic collection efforts that seriously erode the
    limits the collection agencies themselves are bound to respect.
        The Center would be structured like the CIA. The Center would have
    separate divisions for ``intelligence'' and ``operations.'' It would
    have the authority to ``task collection requirements'' and to ``assign
    operational responsibilities'' for all intelligence agencies--including
    the FBI--and to follow-up to ensure its mandates are implemented.
        The Center's power over both intelligence collection and operations
    throughout the intelligence community could pose grave risks of
    encouraging espionage and covert operations techniques on American
    soil. The Center's tasking and strategic planning functions would
    extend not only to the FBI's national security investigations, but also
    to other domestic agencies, including the Department of Homeland
    Security, with immigration, border control and transportation security
    functions.
        Likewise, some of the powers of the NID and the Center over the
    intelligence agencies of the Department of Defense--the largest
    agencies, consuming the large majority of the intelligence community's
    budget--could have domestic implications. The Department of Defense,
    after September 11, established a powerful regional Northern Command
    (NORTHCOM), led by a four-star general, with responsibility for the
    domestic United States (together with Mexico and Canada).
        NORTHCOM already has a military intelligence unit, which raises
    serious questions under the Posse Comitatus Act--the law that limits
    military involvement in domestic affairs. Under the proposed structure,
    the NID and the Center could have what amounts to control of the
    domestic intelligence operations of civilian federal law enforcement
    and of the NORTHCOM intelligence unit, creating a real risk of blurring
    the military and civilian functions.
        Recommendation #6: The National Intelligence Director and the
    National Counter-Terrorism Center should not be permitted to direct or
    plan intelligence ``operations'' that include ``dirty tricks'' or other
    extra-legal methods within the United States. Domestic use of
    intelligence information must remain bound by the legal system.
        Perhaps the most far reaching power of the National Counter-
    Terrorism Center is its authority to plan and direct intelligence
    ``operations'' throughout the intelligence community. If the NID and
    the NCTC are created, it must be made clear that information derived
    from domestic surveillance is only to be used within the bounds of the
    legal system, and cannot be used for domestic ``operations'' outside
    that system.
        The FBI's COINTELPRO operations--``counterintelligence'' programs
    under FBI Director J. Edgar Hoover that both gathered intelligence and
    used that intelligence to disrupt perceived national security threats--
    led to extremely serious abuses of power. These abuses included the
    illegal wiretapping of Martin Luther King, Jr. and the infiltration of
    scores of social, political and religious groups that opposed
    government policy, as well as ``dirty tricks'' campaigns to exploit
    damaging information without exposing the FBI's sources and methods in
    a criminal prosecution.
        The COINTELPRO programs were initially rationalized as attempts to
    counter what Hoover perceived as the influence, or possible influence,
    of the Soviet Union on the civil rights and anti-war movements.
    However, a lack of internal or external controls led to the
    continuation of these highly intrusive operations without any real
    evidence of involvement of a genuine agent of a foreign government or
    organization and without an indication of criminal activity. In other
    words, the FBI's most serious abuses of civil liberties occurred
    precisely when its top leadership forgot it was a law enforcement
    agency operating to enforce and uphold the law--not a freestanding
    security or spy agency designed to counter those individuals and groups
    whose views seemed, to the government officials, to be dangerous or un-
    American.
        If the powers of the National Counter-Terrorism Center are not
    properly limited, the result could be the establishment of what amounts
    to just such a freestanding spy agency in all but name. For civil
    liberties reasons, the 9/11 Commission soundly rejected the idea of
    moving the FBI's counter-intelligence and intelligence gathering
    functions to a separate agency patterned on the UK's Security Service
    or MI-5. The FBI, because of its mission and culture, can serve the
    intelligence gathering mission that the CIA serves overseas, but the
    FBI must operate under the U.S. Constitution and ``quite different laws
    and rules.'' The Commission was also sensitive to the dangers of
    negative public reaction to civil liberties abuses that would result
    from creating an agency unconstrained by those rules. A ``backlash,''
    it says, could ``impair the collection of needed intelligence.''
        It also objects to the MI-5 idea for these reasons:

              The creation of a new agency, and the appearance of
            another big kid on the intelligence block, would distract the
            officials most involved in counter-terrorism at a time when the
            threat of attack remains high.

              The new agency would need to acquire, train and
            deploy a vast amount of new assets and personnel, which the FBI
            already has at its disposal.

              Counter-terrorism very easily ropes in matters
            involving criminal investigation. With the removal of the pre-
            9/11 ``wall,'' it makes logical sense, the commission says, to
            have one agency utilize the entire range of intelligence and
            criminal investigative tools against terrorist targets.

              In the field, the cooperation between counter-
            terrorism investigators and the criminal side of the FBI has
            many benefits.

        The Commission was right to reject the model of a domestic
    intelligence agency. For much the same reason, however, its proposals
    for intelligence reform must be modified and clarified. 1Reducing
    Excessive Secrecy and Strengthening Oversight of the Intelligence
    Community
        As the 9/11 Commission observes, structural reform of the
    intelligence community will not by itself solve basic intelligence
    deficiencies that contributed to recent intelligence failures.
    Substantive reforms--including strong internal watchdogs and a civil
    liberties board, a reduction in excessive secrecy, an increase in real
    public and Congressional oversight, and stronger efforts to incorporate
    dissenting views into analysis--must be adopted to prevent future
    intelligence breakdowns.
        Recommendation #7: The Commission recognized its recommendations
    could increase government intrusion on civil liberties and urged strong
    oversight. Congress should not act to reorganize the intelligence
    community without also implementing the Commission's proposals for
    strong internal watchdogs and an effective civil liberties protection
    board.
        Strong internal watchdogs. Proposals to reform the intelligence
    community have included the creation of an Inspector General for the
    intelligence community. The Inspector General would have significant
    investigative powers, including subpoena power, that would aid internal
    investigations. An Inspector General for the intelligence community
    would report directly to the National Intelligence Director and, as a
    result, could be a more powerful, and more independent, watchdog than
    the inspectors general that currently have jurisdiction over each of
    the fifteen intelligence agencies.
        Civil liberties protection board. The 9/11 Commission should be
    commended for recognizing the need to protect civil liberties and
    endorsing an independent watchdog board to strengthen oversight
    throughout the government. While various entities and offices within
    the Executive Branch, such as inspectors general, officers for civil
    rights and privacy, and oversight boards, are charged with policing
    certain departments, agencies or programs, no one board has the
    responsibility for ensuring that civil liberties are not compromised by
    the need for enhanced security.
        The need for such an independent, nonpartisan voice is clear. The
    Commission recommends putting the burden of proof on the government to
    show the need for new security powers, such as those enacted by the USA
    PATRIOT Act, but there is no reliable, independent agency that performs
    this function. The Commission did not, however, set forth any specific
    proposals with respect to what a civil liberties board could do.
        The 9/11 Commission observed:

            ``[D]uring the course of our inquiry, we were told that there
            is no office within the government whose job it is to look
            across the government at the actions we are taking to protect
            ourselves to ensure that liberty concerns are appropriately
            considered. If, as we recommend, there is substantial change in
            the way we collect and share intelligence, there should be a
            voice within the executive branch for those concerns.''

        The Commission proposes a board that would ``oversee adherence to
    the guidelines we recommend and the commitment the government makes to
    defend our civil liberties.''
        The recommendation implicitly recognizes that that there is a need
    for two functions, one proactive and one retrospective. First, a board
    should be a proactive voice for civil liberties during the development
    of counter-terrorism policies. For example, during the development of
    the government's ``no fly'' list, the board should be asked to study
    and address civil liberties concerns. How are persons who are
    mistakenly put on such a list to get off the list? How will the
    government ensure that innocent travelers who have the same or similar
    name to a person on the ``no fly'' list are not harassed?
        Second, a board must be able to look retrospectively at patterns of
    civil liberties abuse, or at significant new programs or laws that
    intrude on civil liberties. The board could, for example, examine the
    treatment of terrorism suspects detained on immigration violations or
    as ``material witnesses,'' but not charged with terrorism. The board
    could also look at the effectiveness, and impact on civil liberties, of
    new powers, such as the USA PATRIOT Act, and issue a report prior to
    the expiration of such powers.
        This investigative function should build on the work of others,
    including the inspectors general of the agencies involved. Because
    those offices do not have government-wide authority, a board must be
    able to have the discretion to review and assess the work of inspectors
    general and other existing investigators, and to go further where
    necessary.
        To complete its objectives, the board must have substantial clout,
    authority, and powers. It should be bipartisan. Ideally, appointments
    should be shared between the President and Congressional leaders, if
    such an appointment process can be reconciled with separation-of-powers
    concerns. Board members should have independence and should serve a
    fixed term, and they should be prominent citizens with experience in
    civil liberties, government investigations, and security. The board
    should hire an full-time executive director and a staff that permits it
    to carry out its functions.
        The board should have the power to hold public hearings and issue
    both annual reports assessing the state of civil liberties and special
    reports that detail the results of investigations. Agencies should be
    required to respond to their recommendations, and the board should also
    make recommendations, where appropriate, for legislation. The board
    should have the power to subpoena documents and witnesses, and should
    enjoy the cooperation of all departments. Members and staff should have
    high-level security clearances to enable the examination of even the
    most sensitive national security secrets.
        Recommendation #8: A presumption against classification without
    good reason was contained in Executive Order 12958 but has been
    rescinded. As a first step in reforming an outmoded system of secrecy
    designed for the Cold War, the presumption should be reinstated.
        As the 9/11 Commission report recognized, excessive
    classification--not civil liberties protections--almost certainly
    represents the greatest barrier to effective information sharing. As
    the report states, too often the attitude has been that ``[n]o one has
    to pay the long-term costs of over-classifying information, though
    these costs . . . are substantial.'' The report laments an outdated,
    Cold War-era ``need to know'' paradigm that presumes it is possible to
    know, in advance, who requires access to critical information. Instead,
    it recommends a `` `need-to-share' culture of integration.''
        ``Groupthink'' led to some in the government discounting the
    possibility that Al Qaeda terrorism was directed at the United States,
    rather than overseas. According to the Senate Select Committee on
    Intelligence, groupthink was also the major culprit behind the
    intelligence failures regarding Iraq's WMD programs. Groupthink cannot
    be challenged in secret. Public pressure--including the media and
    public interest groups--can challenge government agencies to reassess
    their assumptions.
        Unfortunately, the Bush Administration has moved in the opposite
    direction--towards greater secrecy. President Bush's executive order on
    classification, issued after September 11, not only extended a deadline
    for automatic declassification of old documents, it actually reversed a
    presumption against classification without good reason that was put
    into place by President Clinton in 1995 as a signal to agencies that
    their classification decisions should have stronger justification.\4\
    ---------------------------------------------------------------------------
        \4\ Further Amendment to E.O. 12958 (March 25, 2003); See Adam
    Clymer, U.S. Ready to Rescind Clinton Order on Government Secrets, N.Y.
    Times, March 21, 2003.
    ---------------------------------------------------------------------------
        Recommendation #9: The Freedom of Information Act should be amended
    to require courts to balance the public's need to have access to
    information that is critical for oversight of government--such as
    serious security flaws, or civil liberties abuses such as the
    mistreatment of detainees--against government claims that the
    information is exempt from disclosure.
        ``Need-to-share'' cannot be limited to agencies within the
    government or defense and homeland security contractors, but also must
    include, to the greatest extent possible, sharing relevant information
    with the public. Congress and the Administration have created, through
    the Homeland Security Act, an entirely new category of information that
    is withheld from public view--sensitive but unclassified (SBU)
    information. While the 9/11 Commission criticizes excessive secrecy, it
    also endorses establishing a ``trusted information network'' for
    sharing of unclassified, but still nonpublic, homeland security
    information.
        The Commission's calls for greater openness and sharing of
    information will not be effective if it succeeds only in adding another
    set of complex secrecy rules designed to limit public access to
    ``homeland security information'' on top of the existing classification
    regime. New categories of secret information--including ``sensitive but
    unclassified,'' homeland security information, or information in a new
    ``trusted information network''--may succeed only in replacing one
    unwieldy secrecy regime with another. The need for government and
    industry to keep critical infrastructure information from the public
    must be balanced against the public interest in access to critical
    oversight information. The Freedom of Information Act should be amended
    to require this.
        Recommendation #10: Congress should enact H.R. 2429, the
    Surveillance Oversight and Disclosure Act, sponsored by Rep. Hoeffel
    (D-PA), or its Senate counterpart, S. 436, the Domestic Surveillance
    Oversight Act, as a first step towards making more information about
    the use of FISA available to the public.
        The Commission calls for a debate on the USA PATRIOT Act, putting
    the burden on the government to show why a given power is needed.
    However, the government still takes the position that its use of
    surveillance authorities under the Foreign Intelligence Surveillance
    Act (FISA) is classified, and that the public's right to know only
    extends to the total number of surveillance applications made and the
    total number of orders granted. There can be no meaningful debate on
    the government's use of the USA PATRIOT Act, which expanded FISA
    surveillance powers, without any publicly-available objective data on
    such basic matters as how many surveillance orders are directed at
    United States persons, how many orders are for electronic surveillance,
    how many are for secret searches of personal records, and so on.
        Rep. Hoeffel has introduced legislation (H.R. 2429) that would
    provide more public information about the use of FISA, and Senators
    Leahy, Specter and Grassley have introduced a similar measure (S.436).
        Recommendation #11: Congress should enact H.R. 4855, sponsored by
    Rep. Bud Cramer (D-AL), which establishes a bipartisan classification
    review board, or its Senate counterpart, S. 2672, the Lott-Wyden bill.
    Congress should consider enhancing the board's power to release
    improperly classified documents. The Senate Select Committee on
    Intelligence should also make clear it will wield its existing power
    under the Senate rules as an effective check against intransigence by
    the President in releasing classified information that the board
    recommends to be released.
        The Congress should enact H.R. 4855, sponsored by Rep. Bud Cramer,
    the ``Independent National Security Classification Board Act of 2004.''
    An identical bill, S. 2672, has been introduced in the Senate by
    Senators Trent Lott (R-MS) and Ron Wyden (D-WA).
        The bill would create a bipartisan board, appointed by the
    President and members of Congress, to review and reform classification
    rules. The board should consider whether a complex system of government
    secrets that has grown to include layers upon layers of bureaucratic
    rules is the best way to safeguard the national security, and recommend
    real reforms.
        Recommendation #12: The intelligence committees should hold far
    more open hearings. The annual hearings on legislation authorizing the
    intelligence community--as well as other legislative hearings--should
    be open to the public.
        The 9/11 Commission called for Congressional oversight to be
    greatly improved, calling the current structure ``dysfunctional.'' As
    the Commission made clear, the establishment of a Senate and House
    committee devoted to intelligence matters does not provide effective
    oversight when hearings--even hearings on legislative matters--are
    almost always closed to the public
        Recommendation #13: The intelligence budget should be made public
    as the Commission recommends.
        Perhaps the most inexplicable example of excessive secrecy that
    frustrates real accountability is the continued insistence by the
    intelligence community on keeping basic information--even information
    that is widely known or guessed--classified. Even the overall amount of
    money budgeted for intelligence activities, which is widely reported as
    being approximately $40 billion, is classified as is the amount of
    money budgeted for components of the intelligence community. At least
    these numbers, and other information that would help the public know
    how its dollars are being spent, should be made available.
        Recommendation #14: While Congress should consider ways to
    consolidate and strengthen oversight of the intelligence community, the
    intelligence community should not be shielded from the oversight of
    relevant committees. Most importantly, the House and Senate judiciary
    committees must retain jurisdiction that is concurrent with the
    intelligence and homeland security committees over domestic
    surveillance, access to the courts and other government actions that
    affect legal and constitutional rights.
        The Commission's other recommendations include investing the
    intelligence committees, or a joint committee of both Houses of
    Congress, with authorizing and appropriations powers over the
    intelligence communities. This proposal should be approached with
    caution. Limiting the number of committees with jurisdiction over the
    intelligence community may frustrate oversight instead of enhancing it.
    If the single committee with jurisdiction over intelligence does not
    ask probing questions concerning a given program or policy, there will
    no longer be the potential for another committee to fill the void.
        Most importantly, the judiciary committees of the House and Senate
    must retain concurrent jurisdiction over intelligence matters affecting
    legal and constitutional rights. A more powerful intelligence committee
    should not have the exclusive or final say on amendments to the Foreign
    Intelligence Surveillance Act or other sensitive surveillance statutes,
    for example. The same need for some concurrent jurisdiction in the
    judiciary committees arises if Congress adopts the Commission's
    proposal for permanent committees to oversee the Department of Homeland
    Security.
        Recommendation #15: Congress should enact H.R. 3281, the Platts
    bill, or its Senate counterpart, S. 2628, the Akaka-Grassley bill,
    providing special protections for national security whistleblowers.
        Finally, a thorough and comprehensive review of the treatment of
    national security whistleblowers must be part of any reform of the
    intelligence community. The role of whistleblowers in assisting our
    understanding of pre 9/11 intelligence failures has been essential.
        National security whistleblowers face unique obstacles. Many
    intelligence and national security jobs are exempt from the civil
    service protections, including whistleblower protections, enjoyed by
    most government employees. National security whistleblowers also face
    additional hurdles, such as the loss of a security clearance or
    possible criminal charges for allegedly disclosing classified
    information, that are not faced by most government whistleblowers.
        The 9/11 Commission's calls for reform of the intelligence
    community that would challenge conventional wisdom should include
    specific procedures that would encourage whistleblowers. Additional
    safeguards, consistent with national security, must be enacted to
    encourage employees who see distorted and sloppy analysis or other
    serious shortcomings to come forward without fear of losing their jobs,
    security clearances, or going to prison.

                              THE USA PATRIOT ACT
        Recommendation #16: Congress should adopt the 9/11 Commission's
    framework for determining whether to extend controversial provisions of
    the USA PATRIOT Act when they expire next year, which puts the burden
    on the government to show why powers are needed before examining the
    impact on civil liberties. In particular, Congress should wait until
    next year to decide whether to re-authorize the sections of the law
    that sunset so as to preserve an adequate opportunity for the debate
    for which the Commission called.
        During the rush to enact the USA PATRIOT Act after September 11,
    the White House and Attorney General implied that if changes to the law
    did not pass quickly, and there was another terrorist attack, the blame
    would rest on Congress. Not surprisingly, the law passed by wide
    margins: 96 to 1 in the Senate, 357 to 66 in the House. Since then,
    however, numerous lawmakers have expressed reservations, and many,
    including members of the Subcommittee, are actively seeking to refine
    the law to better protect civil liberties.
        Congress wisely included a series of ``sunset'' provisions in the
    law, which would require Congress to reauthorize certain provisions or
    let them expire by December 31, 2005. The Administration has asked
    Congress to act this year to remove the sunset provisions, which would
    make the entire law permanent.
        The 9/11 Commission report unequivocally said that the government
    has the responsibility for defending the expansions of government power
    that are the hallmark of the USA PATRIOT Act. The Commission could
    have, but did not, endorse the PATRIOT Act and call for its renewal.
    Instead, the Commission called for a ``full and fair debate'' over the
    need for these new powers, with the burden of proof resting on the
    government to show why a power is needed. In our view, the Department
    of Justice has not to date met this burden--particularly with respect
    to the most controversial parts of the USA PATRIOT Act. These sections
    relate to secret searches and access to library and other records,
    either under a minimal level of judicial review under Section 215, or
    with no review at all in the case of National Security Letters in
    Section 505.
        The 9/11 Commission also recommended that expansions of government
    power must come only with adequate supervision of the executive's use
    of the powers to ensure protection of civil liberties. This is a very
    important recommendation. We believe that enacting the Security and
    Freedom Ensured Act (``SAFE'' Act), H.R. 3352 (and S. 1709 in the
    Senate) is an important step that Congress could take to increase
    judicial, Congressional and public supervision.

                               A NATIONAL ID CARD
        Recommendation #17: Congress should reject any proposal to (1) make
    state-issued driver's licenses into a common license that is federally-
    designed, but issued by the states, (2) require licenses to contain an
    embedded computer chip bearing the holder's biometric identification
    information (i.e. a fingerprint or retina scan and digital picture), or
    (3) link the ability to obtain a drivers license to immigration status.
        While the 9/11 Commission did not endorse a national identification
    card per se, its recommendations for federal standards for drivers
    licenses would almost certainly amount to a back-door way of
    accomplishing the same objective. Rep. Cannon (R-Utah) pointed this out
    at a hearing on August 20.
        Even during periods of national threat, most notably the Cold War
    and World War II, the country has never thought it necessary to require
    citizens to carry ``papers'' with them at all times. If Congress did so
    now, it would endanger both security and civil liberties.
        Once federalized, drivers licenses would be demanded for all manner
    of personal transactions that do not now require one. Moreover,
    federalized licenses would be the key that accesses personal
    information about the holder that would be inevitably linked to the
    license. Today, that information would include obvious identifiers such
    as Social Security Number and address. But tomorrow, it would include
    less obvious identifiers, and not just fingerprints and retina scans.
    Many businesses--from landlords to retailers--would themselves, or
    through the government, seek to tie personal information to the
    federalized drivers license, and they would not allow routine
    transactions unless a person produced their federalized drivers
    license.
        Some states have decided that drivers licenses should be issued to
    those who can prove that they can drive, as opposed to those who can
    also prove that they are in the country lawfully. They have decided
    that it serves their public safety needs to ensure that all drivers are
    licensed regardless of immigration status. Congress should not step in
    to upset this determination.
        Moreover, the same people who produce fraudulent state
    identification documents today would produce fraudulent federalized
    identification documents tomorrow. The fraudulent federalized documents
    would be used not only by those seeking to commit fraud, but by those
    intending to do much more serious harm.
        Finally, Congress has considered, and ultimately rejected, this
    proposal before. This proposal is very similar to Section 656(b) of the
    Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
    The regulation the Department of Transportation proposed to implement
    Section 656(b) was roundly criticized as a system of national
    identification, and was never implemented. The regulation that the DOT
    proposed drew literally thousands of negative comments from members of
    the public. Congress wisely repealed the provision in a subsequent
    transportation appropriations bill.
        A much better approach would be for Congress to fund state efforts
    to make drivers licenses more secure.

                AIRLINE PASSENGER PROFILING AND ``NO FLY'' LISTS
        Recommendation #18: Before the TSA begins administering no-fly
    lists, Congress should ensure that there is some independent review,
    subject to appropriate security measures, of how someone gets on the
    no-fly list. For travelers who find themselves wrongfully included in
    the no-fly list, there must be some process for them to clear their
    names, and the TSA should be required to track the number and cost
    (both to effectiveness and civil liberties) of ``false positives.''
        The 9/11 Commission took no position on whether the passenger
    profiling system known as CAPPS II should go forward. Moreover, its
    factual findings suggest that the approach taken by the proposed CAPPS
    II--to subject every commercial air passenger to an invasive background
    check against business and intelligence databases--is not necessary to
    ensure airport security.
        However, the Commission did endorse broad expansions of ``no-fly''
    and ``automatic selectee'' lists, and that screening against these
    lists should be performed by the Transportation Security
    Administration, instead of by the airlines, as is now the case.
        The ACLU has long-standing concerns about the use of federal
    watchlists. While it does not oppose the concept of a watchlist per se,
    the practical use of such tools is fraught with peril for civil
    liberties. As currently administered, the no-fly list has spawned
    stigmatization, interrogation, delay, enhanced searches, detention and/
    or other travel impediments for innocent passengers. These innocent
    passengers can include prominent Americans such as Senator Ted Kennedy,
    who recently revealed that he was on the ``no-fly'' list for weeks, and
    people with the same name as terrorist suspects, such as the four
    innocent ``David Nelsons'' who were repeatedly stopped in the airport
    because their name was on such a list. ACLU has filed a lawsuit seeking
    to vindicate the due process rights of people on the list.
    (www.aclu.org/nofly).
        Expansion of the ``no-fly'' and ``automatic selectee'' lists, as
    proposed by the 9/11 Commission, should not go forward unless the TSA
    establishes adequate policies and procedures to ensure that the right
    people are on the list, people who are wrongly identified as terrorist
    suspects have a way of getting off of the list, and there is an
    independent review of the criteria used to put a person on one of the
    lists. The ombudsman process that the TSA has established has not to
    date proven adequate to accomplish these ends.
        There is also some ambiguity in the report, which could result in
    parts of CAPPS II making their way into a reformed passenger screening
    system. Most notably, the commission's recommendations that the air
    carriers turn over all necessary information about their passengers to
    implement any new screening system could open the door to the same
    kinds of problems with the CAPPS II proposal. The TSA must not use this
    as an opening to engage in the dragnet screening of every air traveler.
    Suspicion must still be individualized, and based on reliable
    indicators of threat, not whimsy, bias or unproven profiling schemes.

                        BORDER SECURITY AND IMMIGRATION
        Recommendation #19: While improved border security is important for
    national security, the report's ``integrated approach'' recommendation
    should not be implemented in a manner that creates what amounts to an
    ``checkpoint society'' or internal passport system. Discriminatory
    profiling should be rejected.
        The 9/11 Commission recommended that the U.S. border security
    system be integrated into a larger network of screening points that
    includes our transportation system and access to vital facilities, such
    as nuclear reactors. While border security screening needs to be
    improved, it should not be converted into a system of internal
    checkpoints at all major transportation systems.
        Major transportation systems include trains, light rail, inter-city
    bus systems, intra-city bus systems, and subway systems such as the
    Metro system here in Washington, D.C. The process for boarding a Metro
    train should not be integrated into the system designed for those
    crossing the border. To do so would not only bring internal
    transportation to a crawl, but would fundamentally change the character
    of American society by creating a system of internal checkpoints. One
    should not have to scan a passport--or a federalized drivers license--
    to board a bus or hop on a subway train.
        We do not believe that the 9/11 Commission meant to call for such a
    system, and we encourage members of the Commission to clarify this
    recommendation.
        Rejection of discriminatory profiling and the ``special
    registration'' for visitors from Arab and Muslim countries. The 9/11
    Commission essentially rejected any border security scheme that singles
    visitors out based on national origin or other categorical criteria.
    None of its recommendations should be construed as supportive of any
    such system. The report says: ``We advocate a system for screening, not
    categorical profiling. A screening system looks for particular,
    identifiable suspects or indicators of risk. It does not involve
    guesswork about who might be dangerous.'' (pg. 387).
        We are hopeful that the Administration will interpret this
    recommendation in a way that ensures that the US VISIT program does not
    follow the path of its predecessor, the National Security Entry-Exit
    Registration System, or NSEERS. NSEERS singled young men visiting the
    United States from certain Muslim and Arab countries out for heightened
    scrutiny and forced them to register with the government; Congress
    should ensure that US VISIT does not go down this road.
    Conclusion
        Increased threats of terrorism after September 11, 2001,
    lightening-fast technological innovation, and the erosion of key
    privacy protections under the law threaten to alter the American way of
    life in fundamental ways. Terrorism threatens--and is calculated to
    threaten--not only our sense of safety, but also our freedom and way of
    life. Terrorists intend to frighten us into changing our basic laws and
    values and to take actions that are not in our long-term interests.
        Proposals for fundamental reforms of the intelligence community are
    particularly sensitive because of the fundamental tension between
    intelligence gathering and civil liberties. Where government is focused
    on gathering intelligence information not connected to specific
    criminal activity, there is a substantial risk of chilling lawful
    dissent. Such inquiries plainly have a chilling effect on
    constitutional rights.
        The answer is not to reject all intelligence and other reforms. The
    answer, instead, to ensure that specific safeguards for domestic
    collection of intelligence information that preserve the role of the
    FBI while ensuring against the use of spy tactics against Americans
    through strengthened guidelines and other checks to bar political
    spying. Greater openness, real accountability to both Congress and the
    public, and protection of whistleblowers is vitally necessary to
    challenge old assumptions and ensure better analysis and performance.
    If watch lists are used that have real consequences to those errantly
    on the list, then there must be a way to ensure that innocent people
    are not mistaken for dangerous ones, and to ensure that they can get
    off the list.
        The 9/11 Commission should be applauded for avoiding the easy--and
    wrong--scapegoating of civil liberties and human rights protections for
    intelligence failures. The commissioners clearly understood that in
    order for America to remain strong and free, any reform of our
    intelligence or law enforcement communities must reflect the values and
    the ideals of our Constitution.
        While we take exception to some of the 9/11 Commission's
    recommendations, such as the federalization of drivers licenses, we
    take heart from others, such as the call on government to justify broad
    expansions of power.
        The challenge to our intelligence community is the same as the
    challenge to Congress, and for the nation as a whole. Securing the
    nation's freedom depends not on making a choice between security and
    liberty, but in designing and implementing policies that allow the
    American people to be both safe and free.
                                     ______

                                    APPENDIX

                        9/11 COMMISSION RECOMMENDATIONS
                     SUMMARY OF CIVIL LIBERTIES SAFEGUARDS
    National Intelligence Director, Counter-Terrorism Center must be
            accountable, not political
        1. Intelligence director should not be White House official, but
    should be independent office, counter-terrorism center should not be in
    White House, and head of CIA should not be given more powers over
    domestic surveillance.
        2. Intelligence director should be subject to Senate confirmation
    and should have a fixed term, like FBI Director and new Director of the
    CIA; President can fire for cause.
    Make sure a ``top cop,'' not a ``top spy'' remains in charge of
            domestic surveillance
        3. Head of FBI intelligence operations must report to FBI Director
    and Attorney General, not intelligence chief;
        4. FBI Director and Attorney General should be required to make and
    enforce guidelines prohibiting spying on First Amendment protected
    activity;
        5. Powers of intelligence director and counter-terrorism center
    should be specified by statute, and other activities barred. Explicit,
    enforceable language should make clear intelligence director does not
    have effective control of domestic surveillance, whether directly or
    through counter terrorism-center.
        6. No ``covert operations'' on American soil--use of domestic
    intelligence must be bound by legal system;
    Reduce excessive secrecy, improve accountability
        7. Create strong Inspector General and other internal watchdogs for
    intelligence community; create Civil Liberties Protection Board with
    real power to investigate abuses and prompt corrective action;
        8. Restore presumption against classification for no good reason in
    prior Executive Order;
        9. Amend Freedom of Information Act to provide that exemptions for
    new categories of unclassified, but nonpublic, information must be
    balanced against public interest in disclosure;
        10. Enact legislation (e.g., S. 436/H.R. 2429) increasing public
    reporting on use of Foreign Intelligence Surveillance Act (FISA) that
    governs FBI national security wiretaps, secret searches, and records
    demands within United States;
        11. Enact Lott-Wyden bill (S. 2672/H.R. 4855) establishing
    bipartisan classification review board, and make clear Senate is
    prepared to release information on board's recommendation if President
    is intransigent;
        12. Intelligence committees must hold more open hearings, and open
    all legislative hearings;
        13. Make intelligence budget public;
        14. New and stronger committees to oversee intelligence community
    and Department of Homeland Security must allow for oversight by other
    relevant committees. Judiciary committees must have concurrent
    jurisdiction over domestic spying and other actions affecting
    constitutional rights.
        15. Enact legislation (e.g., S. 2628/H.R. 3281) to provide specific
    protections for national security whistleblowers.
    The USA Patriot Act
        16. Congress should adopt the 9/11 Commission's framework for
    evaluating the USA PATRIOT Act, which puts the burden on the government
    to show a power is needed.
    Border and Transportation Security
        17. Congress should reject proposals to federalize drivers licenses
    and thereby turn them into a national ID that links databases and
    mandates immigration restrictions.
        18. Standards for ``no fly'' and other watchlists must be enhanced
    to ensure there is clarity about how a person gets on a list, how the
    ``same name'' problem can be addressed, and how a person gets off.
        19. Tracking ``terrorist travel'' should not be accomplished by a
    system of internal ``checkpoints'' that requires Americans to carry
    what amounts to an internal passport. Discriminatory profiling should
    be rejected.

        Mr. Coble. I commend you witnesses. You complied very
    consistently with our request for the 5-minute rule. You know,
    folks, time is a very precious element in this hectic era in
    which we live. There is another 9/11 hearing being conducted
    simultaneously, at least one more on the Hill I know of. But in
    view of the significance of this hearing, I believe that we
    will have a second round of questioning. This will permit the
    Members to examine you all on a second round.
        Having said that, Mr. Kojm, a new report from the staff of
    the 9/11 Commission was released just this morning. And I don't
    mean to be critical--well, strike that. I guess I mean to be
    critical, unless there was a good reason for our not getting it
    prior to this morning. If we could have gotten it earlier, it
    would have been of great help. But in any event, this report
    that we just received this morning details the lax controls on
    immigration and customs that the hijackers exploited to carry
    out their plot, beginning by acquiring false visas in April
    1999.
        Mr. Kojm, if you could expand on these new developments and
    what recommendations you can make with regard to improving visa
    tracking and entry exit security.
        Mr. Kojm. Mr. Chairman, first with respect to release of
    the report, this was a staff report neither endorsed by nor
    reviewed by the commissioners. And we needed to put it out
    before the Commission went out of existence, which was on
    Saturday. And we had a full complete process of prepublication
    review with the executive branch which only concluded very late
    on Friday. So that explains why it was released so late. And,
    of course, we apologize that this Committee did not have
    sufficient time to review it before this hearing.
        Mr. Coble. Well, that diminishes my criticism, then.
        Mr. Kojm. Mr. Chairman, with respect to the recommendations
    of the Commission, they remain the same. The staff report
    essentially provides more detail on the same questions, but we
    believe strongly that it is critical that terrorists' travel
    intelligence be integrated into all agencies that have
    responsibility for border security.
        For example, it was quite startling to us that the people
    in the Department of Homeland Security, who have responsibility
    for borders, did not even know the names of their counterparts
    in the Intelligence Community who work on these very issues
    with respect to terrorism travel. Now, that's not the kind of
    relationship that our Government needs to have. What we believe
    here is that there needs to be a very close relationship, an
    operational one, so that what is known by the experts in the
    Intelligence Community, that this information gets right to the
    border inspectors, to the consular officials, that they can
    punch numbers and buttons on their screens. This information is
    available to them. Otherwise, we can do all the great
    intelligence work we want, but if it's not available to our
    point people on the line every day, then it's not making a
    difference. And I'll just stop right there. Thank you.
        Mr. Coble. Mr. Nojeim, it has been suggested by some that
    the Congress immediately implement all of the 9/11 Commission
    recommendations for the safety of the American public. What is
    your response to that?
        Mr. Nojeim. We believe that the Congress ought to move very
    carefully and very cautiously, and that a rush to implement all
    of the provisions at once would probably be a mistake. It would
    be important for the Congress--and I think that the Commission
    expected this--to examine each recommendation very carefully,
    make an assessment, bringing in experts such as the people at
    this table to assess whether the recommendation makes sense,
    have a full debate about it, and take whatever time is
    necessary.
        Mr. Coble. I'm inclined to agree with that. I think a
    deliberate rather than an accelerated response probably is more
    desirable.
        Mr. Pistole, according to the Commission staff report on
    terrorist financing that was released Saturday, the CIA is
    developing institutional and long-term expertise in the area of
    terrorist financing. How does this role complement the role of
    the FBI's terrorist financing operation section?
        Mr. Pistole. Mr. Chairman, the FBI and CIA have a very
    close working relationship in the area of terrorism financing
    since 9/11. The terrorism financing operation section of the
    FBI is actually the largest of the 10 sections of the
    counterterrorism division, with over 150 people working just on
    terrorism financing at our headquarters. We also have terrorism
    financing coordinators in each of our 56 offices who work very
    closely with FINO from the Counterterrorist Center of the CIA
    on both international and domestic terrorism financing matters.
    It is a very proactive, operationally focused effort with a
    number of different private sector entities involved in that.
        Mr. Coble. I thank you. I see the red light now illuminates
    in my eye. I want to revisit this with you on the second round,
    Mr. Pistole. The gentleman from Virginia.
        Mr. Scott. Thank you, Mr. Chairman. When we talk about
    reorganization there's a difference between just reorganizing
    things and actually improving things, especially when
    reorganization brings with it some inefficiencies. Just mention
    the fact that some people didn't know their counterparts. When
    you reorganize, nobody is going to know anybody.
        Exactly what information was not gathered under the present
    system that, if you reorganize all the boxes, would have been
    gathered and what could have been done with it under a new
    organization that could not be done under the present
    organization if people would just do their jobs better?
        Mr. Kojm. Mr. Scott, let me begin--first of all, thank you
    for the question. We on the Commission do appreciate the
    changes have been made since 9/11 and that they have been
    important changes, largely, we believe, in the right direction.
    But we believe that change has not been sufficient. We still
    are dealing with Cold War institutions. And the national
    security threat we face today is fundamentally different from
    any we faced in the previous two generations. So we believe
    that the institutions of Government must reorganize. Two
    stories, briefly. We caught----
        Mr. Scott. Let me stop you there. Just reorganizing--
    sometimes when you have a problem and you don't like the status
    quo, the suggestion is therefore you must agree with the
    proposed change. Sometimes the proposed change isn't any better
    than the status quo. My question is how is the proposed change
    going to make--what is the proposed structure going to do
    better necessarily than the old structure, particularly when
    you have people knowing each other a little bit on this side
    and, if you can just improve the way they're doing their jobs,
    will that do a better job than reorganizing everything?
        Mr. Kojm. Mr. Scott, fundamentally we believe the answer to
    that question is no. Good people are working together and
    working together better, but they are still hampered by, we
    believe, bad structures. We believe the risks for the Nation
    are greater if we do not change than the risks that always
    accompany periods of change and transition.
        Simply one story from 9/11 that we find powerful is of
    Kuala Lumpur where in January of 2000 we saw two future
    hijackers, we caught a glimpse of them. The CIA did a very good
    job tracking those people. The trail was lost in Bangkok.
    Ultimately those two hijackers came to the United States. That
    information never was passed to the FBI until August of 2001.
    We could have made a significant difference and we believe it
    is certainly possible that we could have disrupted that plot
    had there been better----
        Mr. Scott. What would have happened to the information
    under the new structure?
        Mr. Kojm. Under the new structure, under the national
    counterterrorism center, the FBI and CIA would be living
    together, sharing this information on a daily basis. There
    would be a quarterback in charge. So when the trail was lost in
    Bangkok, there would be someone who knew it was lost and would
    give an order to make sure that the case was followed, that the
    case was managed and that the case was not dropped, as occurred
    in the 9/11 story.
        Mr. Scott. And that means everything goes into the TTIC. Is
    that----
        Mr. Kojm. Well, this would be the national counterterrorism
    center that we believe needs to built on the good foundation
    that was started with the creation of TTIC that Mr. Brennan
    heads.
        Mr. Scott. What would happen to TTIC under this new
    structure?
        Mr. Kojm. Well, I think Mr. Brennan's words are apt. It is
    a good foundation, but a foundation is not the same as the
    house. We believe that the head of the national
    counterterrorism center needs people assigned to him, not
    detailed to him. He needs tasking authority. He needs to
    conduct strategic analysis. He needs to conduct warning. He
    needs to have more power over the analysis of information and
    he needs a counterpart who plans joint intelligence operations
    under the leadership of the head of the national
    counterterrorism center.
        Mr. Scott. Mr. Brennan, you want to comment on that?
        Mr. Brennan. I agree with some of the things that Chris
    said, but I don't think that structural change would have made
    a difference as far as that information that he was referring
    to as far as Malaysia is concerned. Having a quarterback in
    charge of those different elements doesn't mean that that
    quarterback is going to know every single bit of data that
    resides within the terrorism arena. And there are terabytes of
    data.
        I think what is most important is to have an information
    sharing architecture and system that will allow the information
    to get into the appropriate databases that can be then pulsed
    by FBI, CIA, and other offices as appropriate. And I happen to
    be, again, a proponent of some reform, but I don't think it
    would have addressed the issue that you raised, as far as--or
    that Chris raised there.
        Mr. Scott. Thank you, Mr. Chairman.
        Mr. Coble. I thank the gentleman. The gentleman from
    Florida, Mr. Feeney.
        Mr. Feeney. Thank you, Mr. Chairman. And thank all of you
    for your testimony. I was here on Friday when we had Mr.
    Hamilton and Senator--Slade and others testify on some privacy-
    related matters. I hope to take that up with Mr. Nojeim in a
    minute.
        But, Mr. Kojm, I am this morning. We did get a copy of
    addendum of materials that add to the 9/11 report. So we
    haven't been able to get through that entirely. But one of the
    new things that is suggested appears in the report, is that in
    1992 a manual produced by the CIA known as the ``Red Book''
    which advised border and security agents in how to deal with
    the potential targeting and identification of terrorists or
    threats to security was discontinued as a training tool for
    those border agents in 1992.
        Was the Commission able to determine why the training was
    discontinued? Was there any document that was used to replace
    training for our security or immigration or border clerks? And
    if not, in light of the World Trade Center bombing in 1993,
    what was done to try to put our people in charge of protecting
    our borders on notice that there were ways to try to detect
    potential threats?
        Mr. Kojm. Mr. Feeney, thank you for the question. The
    question you asked about the Red Book is exactly the same one
    that we wrestled with. I'm not sure we got a fully satisfactory
    answer. Part of the reason it was discontinued in 1992, we
    believe, is because it was felt that it was compromised. This
    book we shared with counterpart foreign governments and liaison
    services, and they found it very useful. But we do believe it
    was compromised--the Commission was told this--and for this
    reason it was discontinued.
        The maddening question, of course, though, is why wasn't
    this replaced with either an electronic database or some other
    kind of system and training? We don't have a good answer for
    that.
        As to your second question, after the first World Trade
    Center bombing, there was a significant effort to modernize and
    update the State Department's watch list. And it was
    computerized, with assistance from the Intelligence Community,
    into what became known as the tip-off look out system, which
    had 60,000 terrorist names in its database at the time of 9/11.
    Unfortunately, the names of the hijackers, of what turned out
    to be three of them, were not entered until August 23, 2001.
        Mr. Feeney. Thank you. I hope to come back to that.
        Mr. Nojeim, I guess this an opportunity to take up some of
    your testimony. By the way, I was struck by how much of it I
    actually agree with, at least with respect to the concerns that
    I have. I don't always agree with positions of the American
    Civil Liberties Union, but I do agree that the privacy and
    civil liberties is the foundation for what makes America great.
    Appreciate that.
        Along those lines there's a wonderful book written, believe
    it or not, by our Chief Justice Rehnquist, called ``All the
    Laws But One'' which talks about the pendulum between civil
    liberties and securities. It was issued in 1987, 15 years
    before the September 11 attacks. We're going through one of
    those periods where rebalancing civil liberties and new
    security threats is necessary.
        Some of your concerns, maybe not specific recommendations I
    agree with, are concerns about the national ID card; the
    potential use of surveillance domestically to infiltrate and
    manipulate political organizations; the fact that the national
    intelligence director, if we're going to create one, ought to
    have some responsibility in answering to Congress, including
    potentially Senate confirmation; and the concern that FBI and
    domestic surveillance not be allowed to engage in ad hoc spying
    across the board; that there ought to be specific incidents or
    threats before we turn spies loose on citizens.
        One of the things I probably disagree with the ACLU, the
    protection for American citizens as opposed to noncitizens. I
    think that there are two very distinct categories under our
    Constitution. But some of your positions are troubling. For
    example, you suggest that it's inappropriate for domestic
    intelligence officers to show up at public meetings and find
    out what people are saying. If the KKK Grand Wizard was having
    a discussion about what to do, legally or illegally, I think we
    would want people at a public meeting in that audience. Same
    thing, if a Nazi rally. ACLU supported the right of Nazis to
    march through Skokie, Illinois for example.
        At the upcoming GOP Convention, the ACLU officers have
    expressed skepticism about some of the surveillance that the
    FBI is doing on Web sites and people that have actually
    suggested using Molotov cocktails, sling shots, bolt cutters,
    et cetera, people that have not only refused to renounce
    violence, but in the name of apparently peace are suggesting
    that we ought to have some violence against at least property
    if not persons.
        Can you tell me where we draw the line about the use of
    American domestic officers attending public meetings and going
    to places where the discussion of terrorist activities or
    threats is actually out in the open?
        Mr. Nojeim. Yes. Yes, I think I can be helpful on that. We
    believe that the FBI should follow up when it has a lead; that
    it shouldn't be monitoring what every political group, what
    every religious group is saying when it's meeting and not
    engaging in any criminal or otherwise unlawful activity. When
    the FBI has a lead, it should be able to go in and watch and
    listen and gather information. That was the old rule. That was
    the rule under the FBI guidelines before they were changed in
    May of 2002. Now the rule is that the FBI can go to any
    political meeting and monitor what people are saying, even
    though it doesn't have any evidence that anybody is up to
    anything that's unlawful.
        Mr. Coble. The gentleman's time has expired. The gentlelady
    from Texas, Ms. Jackson Lee.
        Ms. Jackson Lee. Thank you very much Mr. Chairman. Let me
    add my respect and appreciation for the Chairman and the
    Ranking Member for convening this hearing. I serve as a Member
    of the Homeland Security Select Committee, and we too had
    hearings along with a number of other Committees.
        Allow me in my respect as well for the witnesses and, of
    course, the Commission to really offer my debt of gratitude,
    although they know that they wished that more could have come
    from those of us who serve in public policy positions--that is
    the families of the 9/11 victims, those who lost their lives
    and those who suffer still today from the tragedy and the
    enormity of that day--and offer an apology for the failures of
    this Government and our systems, infrastructure.
        I think more than ever as we have received the 9/11
    Commission report, we should never forget that this Government
    failed the American people. Mr. Chairman, this is not
    accusatory, because you're right; it's not important to point
    as to who and why. I think the 9/11 Commission has
    appropriately thrown a large net and all can stand under it.
    But my great concern as we have these meetings and these
    hearings, although very appropriate, I think it is important to
    note for the Members of this body as well as the American
    people, that this Congress is not convened for legislative
    business; that those of us who have written legislation and are
    prepared to move and work on initiatives that I think are
    imperative to act on--the recommendations of the 9/11
    Commission--are barred from performing our duties because our
    leadership has failed to convene, if you will, the legislative
    process that is necessary.
        I hope that as we proceed that there may be an opportunity,
    even before the end of August, maybe in the first weeks that we
    return, that immediate legislative action could be included so
    that all the worries that have been expended both in these
    hearings and in the 9/11 Commission report would certainly
    provide us with an opportunity for action. I think, if
    anything, we owe this to the American people. And we certainly
    owe this to the many, many members of the 9/11 families who
    were persistent, determined, and with great passion for this
    Commission to exist and for its report to come in finally.
        Let me add to the record my comments on the Chairman's
    comments about this report that came out in the last days of
    this past weekend, and only say that I hope that the lateness
    of it--and I appreciate your explanation and recognize that
    there is a sense of, if you will, tediousness and bureaucracy
    when we're trying to move paperwork, but I really would hope
    that this had nothing to do with political vetting. We have not
    had a chance to read this. And I hope that it's not the case of
    let's cover ourselves and not let any information get out. I
    would have hoped--and I have this document here--that we would
    have been able to read it. Maybe in the next question I would
    have gotten a sentence or two on it. Because our Committee that
    I serve on on Immigration would, I think, benefit from having
    the review of this document. And I think that might be an
    appropriate hearing for us.
        Mr. Chairman, allow me to ask to submit into the record the
    first page of my legislation dealing with elevating or making
    the director of intelligence a Cabinet position. I am delighted
    to be joined by Senator Roberts. My legislation was written on
    August 11, 2004. It would have been nice to be in session so it
    could have been filed. I would ask to submit the first page
    into the record. I ask unanimous consent.
        Mr. Coble. Without objection.
        [The information referred to follows:]

        Ms. Jackson Lee. I also ask unanimous consent to submit
    into the record the FAIR Act of 2004, written on August 4th,
    2004.

        Again because we're not in legislative session, this bill
    cannot be introduced. It deals with funding vulnerable areas so
    that if it is determined on a threat assessment basis that your
    area is more vulnerable than others, without any disrespect to
    any other areas of the United States, this legislation would be
    appropriate.
        I do that in the name of understanding the works of local
    authorities. And I want to make note that the port of Houston
    today is opening their new communication system that deals with
    local authorities who are trying to follow the 9/11 Commission
    report and coordinate, if you will, all of the items that they
    have.
        I see my time is out in terms of a question. I will just
    say this, Mr. Chairman. I understand that have you a second
    round of questioning.
        Mr. Coble. There will be a second round.
        Ms. Jackson Lee. If you would allow me 10 seconds to make
    mention of this, it will lay the groundwork for the questions
    in the second round, the approach that I will take on national
    IDs and standardized questions. Sitting in a jailhouse in
    Houston, Texas, very quickly I will say this is an Indian
    national. He has a 6-month visa. He is in fact in this country
    legally. He was detained as an elderly citizen at the Houston
    airport on the grounds of having knives. They were decorative
    knives that all of us know from the Indian culture and other
    places, brought for his daughter. He was detained by Homeland
    Security and Customs. They looked at the decorative knives and
    ultimately cleared him. What happened? District Attorney
    Rosenthal, our local district attorney now, has him in a Harris
    County jail for 30 days under the pretense of possessing
    illegal weapons. In the midst of that, our Homeland Security
    has put a hold on him. Why? Because the local authorities asked
    for that; not because he is here illegally, not because he has
    ever been an overstay, not for any other reason other than
    overreach and abuse. We must be fearful of a system that
    pretends to protect us and yet follows in a trend that
    undermines the Constitution of the United States of America.
        Ms. Jackson Lee. I look forward to asking questions to the
    witnesses in the next round
        Mr. Coble. You all may want to consider that question when
    it comes her time again.
        The gentlewoman's time has expired. The gentleman from Ohio
    is recognized.
        Mr. Chabot. Thank you, Mr. Chairman. I thank you for
    holding this hearing.
        Mr. Pistole, in the addendum report that was released just
    this morning by the 9/11 Commission indicates three of the
    September 11 hijackers were carrying Saudi passports containing
    ``a possible extremist indicator which was present in the
    passports of many of the al-Qaeda members.''
        While it's not clear what the indicator was, the report
    added that it had not been analyzed by the FBI or the CIA or
    border authorities. Why was this the case, and has that
    indicator now been disseminated among the agencies charged with
    examining these documents, and are FBI agents now trained in
    how to detect such indicators?
        Mr. Pistole. Congressman, I think you've hit on a key point
    of the transformation of both the Law Enforcement/Intelligence
    Communities post-9/11, and that is the timely sharing of
    information and the actions taken in response to that
    information.
        To address your specific question, I have not read the
    specific details of that, so I'll have to get back with you on
    that, but as to the sharing of information of the indicators, I
    am not aware of when the FBI received that information pre-9/
    11. The issue that has been addressed in the post-9/11
    environment is that there's a whole new paradigm of that
    information-sharing, and information such as that now, through
    a number of different media, would be exchanged on a timely
    basis and acted on in a way that did not exist prior to 9/11.
    So if that's of any consolation in terms of changes that have
    been made, I'll be glad to go into detail if you'd like on
    those changes both within the FBI and within the community that
    would pick that up now.
        Mr. Chabot. Thank you. Because we're so limited in time,
    I'd like to move on to another area now.
        Would you please explain the distinction between a money
    remitter and a hawala? What characteristics of either of these
    allow criminal activity to flourish, lack of recordkeeping and
    oversight and that sort of thing?
        Mr. Pistole. Sure. Both a money remitter and hawala,
    different names depending on how you are defining them, could
    be for the same entity that uses a method of exchanging
    finances, money, currency, without extensive recordkeeping. And
    by that, for example, hawala may be operating in Chicago and
    pre-9/11 could have money deposited with it from a person in
    Chicago, sent to anyplace over the world, but the money is not
    actually sent, and there's simply a recognition at the
    receiving end that a person is entitled to X amount of money,
    similar to a wire transfer, money order that's being sent
    through any number of different entities.
        The change with the PATRIOT Act, these money remitters,
    hawalas, if they're engaged in that business, do not have to be
    registered in the State that they are located. And what it does
    is it provides a way of tracking money that was, we believe,
    some of the funding for the 9/11 hijackers. We did not have
    that system in place prior to 9/11, and it caused great
    difficulties in determining where the approximately $400-
    $500,000 the 9/11 hijackers used, where that all came from. And
    so that's been one of the areas that there has been a
    legislative fix, if you will, to help us in our law enforcement
    efforts.
        Mr. Chabot. Thank you. Let me continue with you, if I can.
        What is the al Barakat network, and why does the FBI and
    the Office of Foreign Assets Control at the Treasury Department
    differ as to whether this network has terrorist links?
        Mr. Pistole. In terms of al Barakat, there is a fair amount
    of reporting, both intelligence and evidence of its support for
    terrorist activities. I would be glad to go into much more
    detail in a closed setting if that would be appropriate, and I
    would be glad to provide that briefing. Suffice it to say that
    there is both intelligence and evidence to indicate that it has
    provided funding to groups such as al Qaeda and other groups.
        Mr. Chabot. Thank you, Mr. Chairman. I note the yellow
    light has been on some time, so I will get to my following
    questions in the next round. Thank you, Mr. Chairman.
        Mr. Coble. I thank the gentleman from Ohio.
        We have been joined by the gentleman from Wisconsin Mr.
    Green, who is now recognized.
        Mr. Green. I thank the Chairman. I apologize for being
    late. I have the privilege of serving on both this Committee
    and the Financial Services Committee, and they are
    simultaneously having hearings on the 9/11 Commission, so I am
    running back and forth a great deal.
        A couple of brief questions. First off, Mr. Kojm, will the
    Commission be supporting legislation as we go forward? How is
    it going to respond to the different legislative proposals that
    are almost certainly going to be floating around when we return
    back in September?
        Mr. Kojm. Thank you for the question.
        Well, I'm certain that Commissioners will want to reflect
    upon bills as introduced and meet now as former Commissioners
    and assess their response. I think it's fair to say that the
    closer the legislation, draft legislation, is to the Commission
    recommendations, the more comfortable they will be in signaling
    their support for it.
        I should add, too, that this is a learning process for
    Commissioners, and they have taken the view that please adopt
    our recommendations or something better. So by no means do the
    now former Commissioners exclude the ability to improve upon
    their work.
        Mr. Green. Thank you.
        Mr. Pistole, we have been working on legislation, I think
    it is fair to say a number of Members have been working on
    legislation, ever since 9/11, looking to provide tools for the
    FBI, Intelligence Community, obviously responding to changing
    conditions as we understand them. One piece of legislation that
    we've introduced is H.R. 4942 that deals with the, quote/
    unquote, material support for terrorism. It tries to get at the
    different ways in which individuals may support terrorist
    organizations other than the obvious supply of money, the
    supply of physical, tangible goods; instead, perhaps,
    intellectual support or where an individual, someone residing
    in this country, a citizen or not a citizen, becomes a recruit
    and actually travels and attends a terrorist training camp,
    whether or not that person then goes on to participate in
    terrorist activities.
        Have you given thought to the types of tools that we should
    be working on? And, secondly, with the specific reference to
    legislation that I referred to, I don't know if you are
    familiar with it at all, and would you be willing to respond to
    that concept, whether or not you think that would be useful?
        Mr. Pistole. Yes, Congressman. Thank you for the
    opportunity.
        Let me just start by saying one of the very basic tools
    that we do not have in terrorism investigations which we do in
    other select investigations is the use of administrative
    subpoenas for counterterrorism investigations. It's something
    that we use in drug investigations, we use in health care fraud
    investigations by statute, but we do not have the authority to
    use administrative subpoenas, which are basically just a
    streamlined way of obtaining documentary evidence.
        One example is where somebody checks into a hotel late at
    night. The desk clerk is suspicious because the person looks
    like somebody who may be wanted on charges, terrorism charges,
    but there's a question as to what the legal process is for
    obtaining that. The JTTF, Joint Terrorism Task Force, goes out
    to the hotel and the general manager says, no, we cannot give
    you the registration, the name of the person who checked in,
    because you don't have a subpoena.
        If we had administrative subpoena authority, we could get
    that information right away, and given the timeliness of
    terrorism investigations, that's something that just seems very
    basic to us, which would be a beneficial tool; whereas if we
    have to go to an assistant U.S. Attorney to get a Federal grand
    jury subpoena, obviously by the time we get that, circumstances
    may change, and in a worst-case scenario, we could be dealing
    with a terrorist attack that's already happened. That's one
    basic thing.
        I don't have the specifics of H.R. 4942, so I'll take a
    look at that and be glad to get back to you on that. Anything
    that helps us in our efforts to identify somebody who may be
    providing material support obviously would be welcome.
        We look at several areas that terrorists have to engage in
    to commit an act, and along those lines, obviously, we have the
    operators who are the bomb-throwers, if you will; we have the
    facilitators, who may be unknowing and unwitting in what
    they're doing; but we have the financial people. And at any of
    those stages if we can intercept somebody using the material
    support statute, that is of benefit to us.
        Mr. Nojeim. Could I add to that for just a minute? I did
    review the legislation before I came over. I think that one of
    the purposes of the legislation is to respond to the
    Humanitarian Law Project cases. Those cases were about expert
    advice and assistance and the finding of specific intent for
    that particular crime of providing material support for expert
    advice and assistance. Since that case was decided, there's
    been additional cases decided, one in Florida involving Mr. Al-
    Arian, that have a much broader interpretation of the kind of
    intent that would be required, and also has some very helpful
    information about inferring intent. And we'd like to work with
    you on that because I think that's kind of the next generation
    of where the law is going, and you'll want your legislation to
    be responsive to it.
        As for the administrative subpoenas, in the very example
    that Mr. Pistole used, the person who reported to the FBI that
    a suspicious character had come into the hotel under current
    law can give the record to the FBI when they show up. There's
    no need for a subpoena. There's no need for a grand jury
    subpoena. That person who said a suspicious person is here can
    give that information away.
        Mr. Green. I appreciate your additional response to the
    question. I would appreciate your input again, in particular
    with H.R. 4942 as we try to move forward. Obviously, the
    greater clarity of detail that we can provide, I think the
    better for all of us in making this an effective tool.
        I guess I would just say before I surrender back my time, I
    think it's clear that particularly in the House we will want to
    act in September to make sure that we do a great deal of the
    work that's been recommended by the 9/11 Commission, but we're
    also looking for opportunities, given how much time will pass
    between September and when we're likely to return next session,
    to make sure that we do a good job in providing necessary tools
    with this evolving threat. So I would invite all of you to help
    us through that process, because obviously time will be short.
        With that, Mr. Chairman, I surrender back my time.
        Mr. Coble. I say to the gentleman from Wisconsin the
    Subcommittee appreciates your attending two hearings
    simultaneously today. I know that's a stretch, but we thank you
    for being here.
        We will now commence our second round of questioning. Let
    me revisit terrorism financing with Mr. Pistole.
        Mr. Pistole, I am firmly convinced that terrorism is
    heavily subsidized through illegal drug trafficking. To what
    extent, if any, is American organized crime or American drug
    trafficking involved, if you know?
        Mr. Pistole. Mr. Chairman, the FBI has had a number of
    investigations which led to prosecutions where one of the
    underlying criminal acts that was being charged was drug
    trafficking. We have a number of investigations that are
    ongoing which involve that also, and drug trafficking being one
    of any number of illegal activities that we believe help
    support terrorist organizations overseas and perhaps also here
    in the U.S. We have not seen a direct link between organized
    crime either in the traditional sense or any of the emerging
    organized crime groups that are directly and knowingly
    supporting terrorist activity through the drug trafficking.
        Mr. Coble. If you would keep this Subcommittee current on
    that, Mr. Pistole, I would be appreciative.
        Mr. Brennan, I have ignored you up until now. The current
    Terrorist Threat Integration Center is a multiagency joint
    effort that is tasked with the integration and analysis of
    terrorism through threat-related information and disseminates
    that information to key officials. To what degree do you
    attribute the success of TTIC to the fact that it is not housed
    in or controlled by one agency and is therefore able to
    minimize the effects of interagency turf battles?
        Mr. Brennan. Thank you, Mr. Chairman. I think whatever
    success TTIC has enjoyed is precisely because of that, because
    we are not housed in one single department or agency. I think
    over the years there have been some issues related to one
    department or agency does not necessarily want to follow
    another one in terms of how business is conducted and how they
    do their work. When you have a collaborative multiagency joint
    venture such as TTIC, I think it allows the departments and
    agencies really to collaborate with one another in a way that
    hasn't happened before.
        Mr. Coble. I think, as we have learned today, that was one
    of the problems, the fact that communication lines were clogged
    between various entities in the Intelligence Community, and
    hopefully that has at least been recognized and is hopefully
    being resolved.
        Mr. Kojm, do you believe that the PATRIOT Act has assisted
    in the war on terror, A; and, B, have you been provided with
    any evidence that law enforcement has abused the new
    authorities and updated authorities provided in the USA PATRIOT
    Act?
        Mr. Kojm. Mr. Chairman, on the first part of your question,
    we looked in detail at the question of the wall with respect to
    the PATRIOT Act, and the Commission is certainly of the
    unanimous view that taking down the wall was a very beneficial
    step and has significantly improved communication between law
    enforcement and intelligence. And more generally on the
    question of terrorism, we did not take any point-by-point
    review of the PATRIOT Act. We do appreciate that many of its
    aspects relate to updating current statutes to the digital age,
    but apart from the question of the wall, we did not take a
    detailed view.
        Mr. Coble. Mr. Nojeim, I think I pronounced your name
    several ways, but I think I finally have it down. Mr. Nojeim.
        The 9/11 Commission recommended the creation of a position
    of a National Intelligence Director, NID, located in the
    Executive Office of the President. I think we have touched on
    this previously. The President has proposed a slightly
    different model which would allow the NID to oversee the NCTC
    and to report directly to the President, but not be a member of
    the Cabinet nor have the authority to circumvent the agency
    heads. What advantages and/or disadvantages do you see with
    these models?
        Mr. Nojeim. The disadvantage with the model of having the
    NID at the White House is that it politicizes the analysis of
    intelligence and the consolidation of intelligence. Under the
    Commission's proposal, the FBI intelligence function would
    report to somebody inside the White House. Now, remember a few
    years ago when it was a big scandal that a number of FBI
    files--that a number of FBI files on individuals ended up in
    the White House? That was called the Filegate incident. We're
    concerned that under the proposal, FBI files in the White House
    would not be so unusual. It would not be so unusual, because,
    at least in the case of surveillance files, that might be where
    the Director looks at them.
        Mr. Coble. My time has expired, but I see Mr. Kojm is antsy
    to respond, so let me have Mr. Kojm respond as well.
        Mr. Kojm. Thank you, Mr. Chairman.
        I want to be clear here, the Commission recommendations do
    not change in any way, shape or form the legal authorities
    under which the FBI operates, and that includes the
    restrictions on its authorities. What is crucial for us is the
    sharing of intelligence and the FBI participating in that, and
    the sharing of operational plannings. And the FBI would be
    involved in that process, but there would be no control by the
    White House, and I invite my colleague to complete my answer
    here.
        Mr. Pistole. Mr. Chairman, if I could just add on that
    point, clearly the independence of the FBI from political
    process is critical to our being able to protect the civil
    liberties and the safety of everybody in the U.S. So it's at--
    the very notion that it would be politicized under this
    recommendation is contrary to the way we interpret that.
        Mr. Coble. I thank you, gentlemen. My time has expired.
        The gentleman from Virginia.
        Mr. Scott. Thank you, Mr. Chairman.
        I want to thank Mr. Nojeim for pointing out the difference
    in the investigation pursuant to the Levy guidelines where you
    have to actually be investigating some kind of a lead or a
    crime before you start infiltrating organizations and
    conducting them under the pre-Levy guidelines, where you just
    snoop around and infiltrate groups just to gather information
    on people. And that is obviously a stark difference.
        One of questions I had is on a kind of flowchart where the
    National Counterterrorism Center is under the National
    Intelligence Director. It's on page 413 of the report. It seems
    to me that the National Counterterrorism Center really ought to
    be serving as a staff of the Director, otherwise things may get
    to the center, it would have to go back up or go back down. At
    some point a CIA agent who has some information has to give it
    to somebody and has to filter through the process so that an
    FBI agent can use that information.
        Now, I understand that we're gathering enough information,
    but I kind of view this as kind of the ``Where's Waldo''
    puzzle, where if somebody on that puzzle--if somebody shows you
    the picture, there he is, it's obvious, but in the whole
    picture, trying to find him may take you a long time.
        Now, my question is, with all the information coming to one
    person, will they be deluged with so much information that it
    will be essentially useless? And, Mr. Brennan, in TTIC are you
    running into that where you get all the information, if
    somebody had just pointed out to you which of the 20,000 e-
    mails is actually important, it would be obvious to you what to
    do; but if somebody is sitting at a desk and runs 20,000 e-
    mails, what did you do with that information?
        Mr. Brennan. Yes, Mr. Scott. That's why the information has
    to be put in some type of information system architecture and
    database that can be accessed and pulsed as a result of
    searches that are done. Right now in TTIC we have access to all
    FBI information coming from the field, all CIA information
    coming in from the field, on a real-time basis. So you have to
    apply the analytic tools and the computer tools in order to
    access that information because there's just voluminous
    information that comes in on a daily basis.
        People keep talking about information-sharing, and it's not
    sufficient just for me to share information just with Mr.
    Pistole. In the Government you need to make sure that the
    special agent in New York City or the case officer over in
    Africa or a State Department officer in Europe has access to
    information as appropriate, and that requires a tremendous
    engineering of that process.
        Mr. Scott. Will the new proposal make things better or
    worse?
        Mr. Brennan. We are on a glide path right now to do this.
    In order to access the information right now within TTIC, we
    have 180 officers from all throughout the Government who are
    able to access this information. But I do not see how this,
    what they're calling for, is going to allow us to do that on
    its own.
        There is a recommendation in here on information-sharing
    that talks about incentives for information-sharing, and that's
    one of the issues that I take objection to. You can't
    incentivize information-sharing. You have to institutionalize
    it, and you have to have an enforcement mechanism and a
    compliance regimen in order to ensure that happens.
        Mr. Scott. I have a lot more questions. I'm sorry. Go
    ahead.
        Mr. Kojm. Mr. Scott, thank you for letting me just respond
    briefly to Mr. Brennan.
        One of the incentives is precisely what Mr. Brennan
    outlines, a new architecture for information-sharing, and I
    couldn't agree with him more in the importance of a system that
    allows just the kind of work that analysts need to do. That's
    one of the incentives that needs to be built into the system.
        One of the things we found in our study is that even when
    the FBI and the CIA put people in each other's centers and
    detailed them there, that alone was not enough to have
    information shared. We have to get the systems right, and
    therefore I agree with Mr. Brennan.
        Mr. Scott. Mr. Nojeim, they're talking about taking down
    the wall between CIA information gathered under the casual
    foreign intelligence gathering systems and FBI, which has
    limited probable cause and other kinds of barriers. Is there
    any limit to the amount of information that ought to be shared
    between the CIA and the FBI, particularly when they're working
    in joint operations?
        Mr. Nojeim. I think I would look at it a little bit
    differently. The situation that we have now is one where if an
    agent has--if an agent believes that a person is involved in a
    crime, but they don't have probable cause of crime, they can go
    around the Fourth Amendment's probable cause of crime
    requirement and conduct the wiretap or a physical search of a
    home with the use of intelligence authorities. That's what
    happened in the PATRIOT Act in section 218.
        We think that that situation needs to be fixed somehow.
    It's not necessary to re-erect a wall to fix it, but it is
    necessary to ensure that when the Government is looking for
    crime, and it's doing a very intrusive search, that it have
    probable cause of crime as found by a Federal judge.
        Mr. Scott. Can I ask a quick follow-up question then? At
    the last hearing we heard that these new powers and
    information-sharing was aimed at terrorism and not at general
    law enforcement. If you are talking about general law
    enforcement and using foreign intelligence techniques to
    conduct what is essentially a criminal investigation, should we
    just limit it, these new powers, to terrorism so that we know
    what we're talking about, not just general run-of-the-mill
    crime?
        Mr. Nojeim. Some of the new powers in the PATRIOT Act were
    limited to terrorism, and some were not. For example, the
    secret searches, the sneak-and-peek searches, those are for all
    searches, not just for searches involving allegations of
    terrorism. We think that there should be truth in advertising;
    that when a bill is sold as an anti-terrorism tool, that it
    used as an anti-terrorism tool.
        Mr. Pistole. Mr. Scott, if I could just comment also, sir,
    on the issue of the wiretaps. In any use of a wiretap, whether
    it's under the criminal title III laws or under the Foreign
    Intelligence Surveillance Court laws, the FISA Act, in each and
    every instance there is an application made to a court, and a
    court establishes that, yes, there is justifiable probable
    cause, but that a wiretap should be granted----
        Mr. Scott. Probable cause of what under FISA?
        Mr. Pistole. Under FISA it's establishment that there's
    either a foreign power or a terrorist nexus in that.
        Mr. Scott. And no allegation of crime is needed, just that
    you have got an agent of a foreign government, and you are
    curious of what is going on.
        Mr. Pistole. No, that there is a relationship between that
    individual that we're trying to establish additional
    information about, that that person has engaged in something
    that is contrary to the national security of the United States.
    And under that----
        Mr. Scott. Which could be a trade deal, a trade deal.
        Mr. Pistole. Well, there are laws on certain exports of
    trade items, if that's what you're talking about. Obviously,
    the foreign intelligence collection that the FBI does
    transcends counterterrorism. I also have responsibility for
    counterintelligence, and there's a lot of issues there that
    involve no crimes.
        Mr. Scott. And the question is if you can get foreign
    intelligence wiretaps without any allegation of a crime. And
    the question is, as Mr. Nojeim has suggested, that if you are
    actually running a criminal investigation, but do not have
    probable cause, you can run the investigation under the foreign
    intelligence gathering standard, get all the information, and
    then if you find something, then you can hand it over to the
    FBI.
        Mr. Pistole. Well, the safeguards that are in effect on
    that, sir, are the Office of Intelligence Policy Review, the
    OIPR, the Department of Justice----
        Mr. Scott. The precedent is the wall; you cannot get it
    over there. There is no incentive to do it if this wall is
    erect, but we are talking about taking it down.
        Mr. Pistole. That's what the PATRIOT Act did is eliminate
    the wall. Just as an example, in New York if there's an agent,
    an FBI agent, who is investigating the blind sheikh, for
    example, that agent would have to open either an intelligence
    or criminal investigation on the blind sheikh. This is pre-9/
    11. There could be a separate parallel investigation, either
    criminal or intelligence, that would be conducted, but the two
    could not share that information.
        What the PATRIOT Act did in a FISA court of review
    decision, coupled with the AG guidelines, what that did was
    allow that information to be shared which goes to the national
    security of the United States. And that's all we're trying to
    do is make sure that the people of the United States are free
    from terrorist attacks and that we're doing everything humanly
    possible to address that. Pursuit under criminal sanctions,
    that's one thing, we can lock somebody up. If they're not
    criminal sanctions, we can still collect on a national security
    matter.
        Mr. Scott. Mr. Chairman, I do not want to belabor the
    point, but as Mr. Nojeim has indicated, we ought to have some
    truth in advertising. You have discussed a terrorism situation,
    but you could say the same thing if you trip over some
    information in an investigation that had nothing to do with the
    terrorism, and you trip over a crime, or you were looking for
    the crime, and you can use the information by gathering it
    under the foreign intelligence standards, which are very
    casual, and give over to the FBI information they could not
    have gotten otherwise.
        Mr. Pistole. With all due respect, Congressman, we could
    not use the FISA wiretap in that situation you just described.
    We would have to have the articulation of a foreign power or
    terrorist entity that is involved in that situation before the
    FISA court will ever give us the authority. Otherwise we have
    to have the criminal allegations, probable cause under title
    III of the wiretap authority. So we cannot casually collect
    information like that. I disagree with your assessment there,
    sir.
        Mr. Nojeim. If I could clarify a little bit.
        Mr. Coble. Very quickly, Mr. Nojeim.
        Mr. Nojeim. It's that the wall wasn't erected just based on
    the law. It was based on interpretations of the law, and the
    PATRIOT Act changed the law. But the wall was the result of
    much more than just what the law said. It was the result of the
    way it was interpreted.
        Mr. Coble. Well, the good news is this will probably not be
    the final time we visit with you all. This will be ongoing.
        Mr. Feeney from Florida, I previously commended the
    gentleman from Wisconsin for his agility and durability in
    simultaneously attending two hearings today. I didn't want to
    omit that recognition to you. I now recognize you.
        Mr. Feeney. Thank you.
        Yes, Mr. Hamilton is testifying in the Financial Services
    Committee, but, Mr. Chairman, this is my second round of
    questioning here. They have not gotten to me over there. So
    this shows how efficient you run your Committee, for which I am
    grateful.
        Mr. Pistole, to go back for a second, because this is a
    very important matter. Mr. Nojeim would have people believe
    that we have a couple thousand James Bonds running around
    snooping in our living rooms based on the way he put the
    question, and that they do not needs warrants. FISA wiretaps
    are only done pursuant to a warrant issued by the FISA court;
    is that right?
        Mr. Pistole. Absolutely, Congressman.
        Mr. Feeney. And there always has to be proof established
    that there is either a foreign agent involved, likely involved,
    probable cause, or that there is probable cause that a
    terrorist activity under our new definition of terrorist crimes
    or related crimes is involved; is that correct?
        Mr. Pistole. That's correct, sir.
        Mr. Feeney. And not every terrorist crime involves
    hijacking a plane and committing suicide or using a bomb. There
    are a lot of crimes or activities that are necessary predicates
    to the ultimate crime, and they are eligible for surveillance
    under the new PATRIOT Act guidelines; is that right?
        Mr. Pistole. That's exactly right, sir.
        Mr. Feeney. I think the concerns are legitimate because I
    do not want warrantless searches of the American people, and I
    do not want unreasonable search warrants being issued, but by
    the same token, what's reasonable, because our Founding Fathers
    were very wise men indeed, depends on the circumstances and
    threat, in my view, and unfortunately the threat is something
    that we have not always anticipated.
        Going back to some of the problems with the wall, Mr.
    Pistole, the new addendum to the 9/11 report, and by the way,
    it's not necessarily an addendum. I'm told by Mr. Hamilton that
    this was issued by the staff because of the incredible research
    that they did, and while it is intended to complement the
    report, it has not been approved or authorized or voted on by
    the Commission. Mr. Hamilton wanted to make that clear. Mr.
    Kojm, do you want to confirm that?
        Mr. Kojm. Mr. Hamilton is always right.
        Mr. Feeney. And he also suggests that there may be several
    other subsequent reports issued by staff to fill in details,
    and once things become appropriately clear and so forth.
        Mr. Kojm. We were able to get the cooperation of the
    executive branch with respect to these two reports before time
    ran out in the Commission's life, and the executive branch was
    very cooperative. It is simply difficult to get these cleared,
    and they did. Thank you.
        Mr. Feeney. The CIA claimed this addendum is not really an
    addendum, but this staff report that we just got over the
    weekend, that they did not get to review terrorist travel
    documents after 1992 because the FBI decided not to share what
    they gathered in law enforcement investigations, some of the
    cross-sharing of information that we're talking about between
    law enforcement investigations and surveillance. Is that the
    case, Mr. Kojm, and has that been rectified since 1993, the
    World Trade Center bombings, or since 9/11?
        Mr. Kojm. Our strong impression is that today very
    significant progress has been made with respect to information-
    sharing in this regard, but we still believe it can be better
    and must be better. I'm really not prepared to respond to the
    immediate aftermath of '92. I just don't have that information
    with me, and we can provide that for the record.
        Mr. Feeney. Mr. Kojm, some of the concerns expressed by the
    ACLU representative I do share as well, because out of the
    sunshine, allegations can be made by the executive branch of
    the Government. A court will issue a wiretap perhaps if
    probable cause is made, but it's very difficult for the
    American people to hold folks accountable when it's not done in
    the sunshine. However, in the surveillance situation it
    sometimes is necessary. It's one of the reasons for the privacy
    and civil liberties officer that the Commission has strongly
    suggested be set up as a national protection for civil
    liberties and privacy. Is that one of the reasons that you have
    suggested that? And as you answer that, tell me about how that
    privacy officer can protect the sharing of data and also
    people's civil liberties and privacy as we share not just
    between Federal agencies, but up and down with the States and
    localities.
        For the first time since 1812, States and local Governments
    have got to be involved in preventing and deterring and
    stopping attacks on the American mainland by foreign-authorized
    threats. So tell me how that privacy officer can balance civil
    liberties and privacy up and down as well as across Federal
    agencies.
        Mr. Kojm. Congressman, I'll start your question, and then
    I'll invite my colleague, the former general counsel, Dan
    Marcus, he may wish to join in further comment.
        Your question exactly establishes why the Commission did
    what it did. We're quite mindful that our recommendations would
    increase the intrusiveness of the Federal Government in the
    lives of citizens, particularly with respect to border security
    and aviation security. Therefore, we thought it very important
    to create a countervailing checks and balances even within the
    executive branch; hence, the Civil Liberties Board, to which
    individuals and Government officials could bring their cases
    and appeal when they thought that guidelines went too far or
    that privacy had been intruded on.
        But it's not just the Civil Liberties Board. We believe
    strongly that our recommendations on congressional oversight
    will include the quality and attention on oversight matters by
    the Congress, which together with the courts and the Board and
    the executive branch are critically important to the protection
    of civil liberties.
        Let me just turn around for a second.
        Mr. Marcus. I don't really have anything to add unless you
    want to swear me in.
        Mr. Coble. That's fine. That's fine.
        Mr. Feeney. I yield back.
        Mr. Coble. The gentleman's time has expired.
        The gentlewoman from Texas.
        Ms. Jackson Lee. Thank you again, Mr. Chairman.
        I would like to offer two articles. I ask unanimous consent
    to have them included in the record. The first one is dated
    August 21, 2004, Terror No-Fly List Tough to Get Off. And, of
    course, it sites the renowned stories of Senator Edward Kennedy
    and Congressperson and civil rights leader, Representative John
    Lewis. I ask unanimous consent for that article to be submitted
    into the record.
        Mr. Coble. I'm sorry. I did not hear you.
        Ms. Jackson Lee. I ask for an article dealing with the
    terror no-fly list, Tough to Get Off.
        Mr. Coble. Without objection.
        Ms. Jackson Lee. And another article dated August 22, 2004,
    Science Seen as Slipping in U.S., Visa Hurdles Are Turning Away
    Foreign Talent, Expert Argues. And of course it is a long
    scenario about our failings in the visa system as it relates to
    innocent individuals who are attempting to come to the United
    States. I would add this impacts businesspersons and people in
    the medical profession as well.
        Mr. Coble. Without objection.
        Ms. Jackson Lee. Thank you very much.
        I would like to go down a line of questioning that was
    framed by my colleague, Ranking Member Scott, when he mentioned
    that a lot of information was gathered regarding the 9/11
    hijackers, but it was not used properly. It may have been the
    Ranking Member, it might have been one of the witnesses, so
    forgive me, when that language came out.
        Let me also cite on page 68 in your report dealing with
    Immigration Border Security Evolves 1993 to 2001, and that was
    not the 9/11 report, but the terrorist travel report that came
    out over the weekend. The opening paragraph indicates that the
    Intelligence Community did not organize to disrupt travel
    except when targeting individual terrorists. It also failed--
    and this is chronicling the infrastructure failures with
    respect to 9/11 terrorists--it also failed to fully use the one
    tool it supported to prevent terrorist entry, the terrorist
    watch list.
        An article a couple months ago said there are currently a
    dozen official terrorist watch lists maintained by nine Federal
    agencies, and not all employees of each agency currently have
    access to all of those watch lists. In the aftermath of 9/11 it
    was discovered that at least two of the 9/11 terrorists could
    have been stopped from boarding their airplanes had the
    Government's various watch lists been unified.
        So there lies a deep penetrating flaw in our system.
    Unfortunately, I am not comforted that we have made any inroads
    in making those lists unified so that we definitively can get
    the bad guys against the good guys.
        Mr. Nojeim, would you comment first on the story that I
    recalled in the earlier statement that I made dealing with the
    elderly Indian national who I believe you find an overreach
    between Federal and local officials? How do we strike a balance
    in what will potentially happen where you have local
    authorities overreaching based on lack of information, lack of
    knowledge and lack of coordination? And what impact should a
    Federal system have in being able to, in essence, dictate to
    the local authorities, which have no Federal immigration
    responsibilities as I know it, or no immigration
    responsibilities, in the instance of an elderly Indian national
    now detained on the pretense of possessing illegal weapons
    which have been cleared by Homeland Security? How do we have a
    firewall on that instance?
        Mr. Nojeim. I can't comment on the particular case because
    I really don't know enough about it to make comments on the
    general case. But generally once you start melding the
    enforcement of immigration laws with the local officials, we
    run into all kinds of problems, and one of the problems that
    seems to be recurring is that people who have questionable
    immigration status don't come forward. And many of the local
    officials for that reason have decided for public safety
    reasons that they don't want to be in the business of enforcing
    immigration laws. So that's one piece of it. But as for the
    particular case, I really don't know enough about it.
        Ms. Jackson Lee. I do not want you to comment on the
    particular case. I have made the record for that. There is an
    Indian national detained for no reason whatsoever. I think the
    question is when someone is cleared by Federal authorities,
    Homeland Security, the question is do we have some kind of
    consistent policy so they are not caught up in a web of
    overzealous local authorities who really have no basis for
    retaining them on terrorist activities or anything else?
        Mr. Nojeim. A person who's been cleared should be released.
    A person who is suspected of a local crime can be held under
    local authorities.
        Ms. Jackson Lee. I would like to, if you would indulge me,
    Mr. Chairman, to pose this question to the FBI regarding the
    watch list, which seems to still be broken. What efforts are
    being made to effectively unify that list, which says that
    agencies are not even coordinating these disparate lists?
        I also make mention of the fact that there was knowledge in
    the Minneapolis office of--9/11--about some strange activities
    dealing with the 9/11 terrorists. That information did not get
    to Washington. How will the CT coordination office facilitate
    communication between agencies when there have been problems at
    the interagency level?
        I think this is key. So if you can answer the watch list
    question and the coordination of intelligence. That has been
    the key that we found in the problems of the 9/11 terrorists.
    We had the information. We just could not utilize it. We could
    not protect the American people.
        Mr. Pistole.
        Mr. Pistole. Thank you, Congresswoman.
        On the first issue of the terrorism, the watch list, as you
    know, in September of last year the President announced the
    creation of the Terrorist Screening Center. On December 1 of
    last year, the FBI was tasked with the responsibility of
    standing that up, and its initial operating capacity was stood
    up as of December 1 of last year. The purpose of the Terrorism
    Screening Center is to integrate the various disparate watch
    lists across the U.S. Government into a single, consolidated
    watch list. It's not done yet. There's still work that needs to
    be done. You are absolutely right. But what has been
    accomplished thus far is that all of these watch lists have now
    been collocated, if you will, in the Terrorism Screening
    Center, which is headed by a senior person from the Department
    of Homeland Security, Donna Bucella, who reports through the
    FBI.
        What that does is allow for each agency to query this
    database of combined names in a way that was not done prior,
    well, to December of last year. What we don't have yet is--I
    think you made an earlier comment about each officer or agent
    in various agencies, they don't have that capacity to query
    that database yet. That's being worked out. The technology
    piece of that is still being done. Hopefully by the end of this
    year, that will be done to allow for an easy query. But over
    7,000 calls have been made into that center in terms of
    questions about people on watch lists. For example, people who
    are subject to the FBI terrorism investigations, if they get
    stopped someplace by a State trooper for speeding, that State
    trooper, when they run the check, will find out that there is
    something about that person that they need more information
    about, and so that runs through the Terrorism Screening Center.
    So that is one aspect.
        The second part of your question dealt with lack of
    coordination, and you mentioned the Minneapolis situation, and,
    of course, that was dealing with Zacarias Moussaoui and the
    issue of whether there was sufficient probable cause, if you
    will, to do a FISA wiretap on him and do a search.
        In that situation the information actually did go to FBI
    headquarters, but because of the challenge of getting FISA
    authority prior to 9/11, the cumbersome process that existed,
    the authority was not granted in a timely manner, because FBI
    supervisors looked at it and said, there's more that we need to
    develop here, and that was being developed. Unfortunately 9/11
    happened at the time. But the coordination issue has been
    addressed by making the Counterterrorism Division responsible
    for directing and orchestrating all the counterterrorist
    activities.
        Ms. Jackson Lee. Let me just say that I respect the hard-
    working staff of the FBI. Let me make that very clear. I am
    also very sensitive of discussing proprietary information,
    meaning how you do things in terms of this watch list. But
    might I just respectfully say that it is shameful that we do
    not have a watch list now some 3 years later.
        And I beg to disagree on the interpretation that you gave
    on Minneapolis. What I would say is there was lack of
    understanding of even how to pursue what they received. I think
    it made it difficult then to move in a different manner.
        But the real issue is it is now August--let me get my dates
    correct--23, 2004, and we do not have an integrated watch list
    in the United States of America. I hesitate to even say that
    publicly. And I appreciate where we are, but we do not have
    one.
        Mr. Coble. The gentlewoman's time has expired.
        Mr. Pistole. If I could just clarify. We do have an
    integrated watch list. It's the accessibility of that by every
    officer and agent across the country which we don't have yet.
    So we do have an integrated watch list. It's the ease of
    accessibility, and that's an information technology fix that is
    still being addressed.
        Ms. Jackson Lee. And that is the holistic approach in order
    to make sure that we are securing America. I appreciate what
    you are saying. We are not where we need to be, and it is
    August 23, 2004.
        Mr. Coble. Even though the lady's time has expired, Mr.
    Brennan, this is also overflowing into your area of expertise.
    Do you have anything to add to this?
        Ms. Jackson Lee. I appreciate it, Mr. Chairman.
        Mr. Brennan. I just wanted to say that the study that the
    Representative noted was a GAO study of April of '03, and since
    that time, as Mr. Pistole mentioned, the Homeland Security
    Presidential Directive 6 of September gave two entities the
    responsibility for maintaining national data bases. TTIC has
    the responsibility for maintaining the national database on
    known and suspected international terrorists, transnational
    terrorists, to include U.S. Persons operating on U.S. Soil
    here. The FBI has the responsibility for maintaining the
    national database on known and suspected domestic terrorists,
    abortion clinic bombers, animal rights activists and others.
        We have the combined responsibility then feeding that
    information at the classified level to the Terrorist Screening
    Center, which is the one-stop point within the U.S. Government
    right now that can provide assistance to all those watch
    listers and screeners, whether they be at borders, whether they
    be at consular sections overseas.
        What we want to do is maintain a single database. People
    keep referencing sort of one watch list. Well, you have
    different purposes that need to be served. So you have a no-fly
    list which you don't want to have people get on the plane any
    way, any how.
        Ms. Jackson Lee. And that is inaccurate with John Lewis'
    and Ted Kennedy's names on it.
        Mr. Brennan. I think they were on the selectee list. The
    selectee list are those names that are suspected to be
    individuals involved in international terrorism.
        Ms. Jackson Lee. I do not want to besmirch their names, but
    go ahead, sir.
        Mr. Brennan. There is a process under way to improve the
    quality of the information that has been collected over the
    past 20 years. We are talking about 150,000 or so names that
    are, in fact, part of this Terrorist Screening Center database
    that provides that support to Federal and non-Federal entities
    throughout the Government--throughout the country.
        Mr. Coble. Thank you, Mr. Brennan.
        We have two gentleman that have been patiently waiting. I
    recognize the gentleman from Ohio Mr. Chabot.
        Mr. Chabot. Once again, thank you, Mr. Chairman.
        Mr. Kojm, let me turn to you if I can. On page 367 of the
    9/11 Commission report, it recommends that ``the U.S.
    Government must identify and prioritize actual or potential
    terrorist sanctuaries. For each it should have a realistic
    strategy to keep possible terrorists insecure and on the run
    using all elements of national power.''
        This recommendation was made with regard to working with
    other countries. Do you believe that this recommendation should
    apply to providing sanctuary to terrorists in the U.S.? In
    other words, for example, should Congress restrict law
    enforcement from using court orders to receive terrorism-
    related information from libraries and effectively create a
    sanctuary for terrorists to use for research and communication?
        Mr. Kojm. Congressman, we did not really look into the
    question of court orders with respect to libraries and
    terrorism. We did not look into every aspect of the PATRIOT
    Act. For example, we--our attention really focussed on the wall
    because we found that to be directly relevant to the 9/11
    story.
        Mr. Chabot. Thank you.
        Would any of other witnesses--I figured you would like to,
    Mr. Nojeim. We also would like to hear from the other folks,
    but go ahead.
        Mr. Nojeim. Section 215 of the PATRIOT Act set a very low
    standard for judicial consideration of records requests. And
    under section 215, if the FBI asserts that a record or an
    object is ``sought for'', that's the language of the statute,
    is ``sought for'' an intelligence or counterterrorism-type
    investigation, and it gets an order just based on that mere
    assertion. It can require you, me, any business to turn over
    any record or anything. That's a very low standard of proof.
        What the SAFE Act would do, and that's legislation that's
    been introduced to fix some of the parts of the PATRIOT Act,
    would be to slightly raise that standard. We believe that it
    needs to be raised because the current standard is just too low
    for the kind of access that would be given and the kind of
    information that would be available.
        Mr. Chabot. Thank you.
        Mr. Pistole or Mr. Brennan, if you would like to.
        Mr. Pistole. Yes. I think a vigorous public discussion
    about these issues is appropriate. And we in the FBI welcome
    that from the perspective of being able to articulate with some
    specificity, and that may have to be in a closed hearing
    because of the sensitivities of it; the uses of the section
    215, for example, or indications of how does the Congress and
    the Administration and the American people, how do they want us
    to investigate the possible terrorist activities here in the
    U.S. And we welcome that because we have very good guidelines
    that we work by.
        And just to say on section 215, there's been a lot of
    discussion about that. Without giving the exact--let's just say
    it has been used very, very infrequently. We have not employed
    that as a general tool, but we do look at it as one of the
    tools that we have in the fight against terrorism here in the
    U.S. And I did not want to be the person who is in the
    situation where I have to tell an agent out in the field that,
    no, you cannot go get this record because we don't have
    authority. If section 215 is repealed, and Mohammed Atta was a
    person--or his equivalent had access to a record or used
    something that we could have obtained under 215, but for that
    we are not able to obtain that, and so we miss that keylink
    that we are charged with the responsibility of connecting the
    dots, if we cannot connect the dots, then we can't connect
    them.
        Mr. Chabot. Mr. Brennan, I do not know if it has been
    adequately covered, but before you answer, I should probably
    mention, your name is the same as my father-in-law. He is John
    Brennan also. Before I ask you any questions I was going to ask
    you, are you or have you ever been my father-in-law?
        Mr. Brennan. No, but I'm pleased to be related to you if
    that's possible.
        Mr. Chabot. Thank you very much.
        Before my time runs out, Mr. Kojm mentioned before, he was
    talking about the Kuala Lumpur meeting and the fact that if
    changes had been made, that perhaps other things could or could
    not have resulted. I notice that you were perhaps subtly but
    somewhat vigorously shaking your head. I thought I might give
    you the opportunity to address that.
        Mr. Brennan. Well, there's been a lot of discussion over
    the past several weeks about if only the FBI and CIA shared
    information, if we had a culture of sharing. Well, I can tell
    you that my experience is, since TTIC has stood up, there is a
    strong culture of sharing. It's not a question of willingness,
    it's a question of ability. And that's where you have to have
    in place a national system whereby you can get information into
    the system so that it can be accessible to all those Government
    departments and agencies, both Federal and non-Federal, that
    need that information.
        It is a tremendous, tremendous challenge, and just moving
    boxes around within the Government will not do that. There is
    tremendous engineering as far as the wiring, the plumbing that
    is required. So I fully subscribe to the notion that we need to
    have a better system in place to allow this information to be
    shared securely so that you can take information that is
    collected clandestinely overseas and move it at the speed of
    light so that it can be accessed by analysts at headquarters,
    at FBI headquarters, at the JTTF, the Joint Terrorism Task
    Force in Los Angeles, and even by the local police departments
    and first responders. But that is a tremendous engineering
    challenge that requires interoperable systems that we, as a
    Government, as a Nation, I think, need to move forward. It is
    not sufficient just to say CIA and FBI need to learn to share
    information better. That is not it.
        Mr. Chabot. Mr. Chairman, I note that my time has expired.
    I would like to comment by saying I think all four witness have
    been extremely helpful this morning.
        Mr. Coble. I thank you, Mr. Chabot. And pardon my modesty,
    but I think you all will agree your Chairman has used the gavel
    sparingly, but I think this is a very worthwhile hearing, and I
    think sparing use of gavel is in order.
        Mr. Kojm, I think you wanted to be heard, so let me
    recognize you very briefly.
        Mr. Kojm. I appreciate that, Mr. Chairman, simply to join
    into Mr. Brennan's point. He appears to be disagreeing with the
    Commission recommendations, but quite the contrary, we would
    agree in full with what he states. Good people are trying to do
    their jobs, are trying to share, are cooperating, but we need
    fundamental reform of information systems, which is one of the
    main recommendations of the Commission report. I guess we are
    in violent agreement on that point.
        Mr. Coble. Thank the gentleman.
        The gentleman from Wisconsin, Mr. Green.
        Mr. Green. Thank you, Mr. Chairman.
        It was actually in that tome that I think this question was
    posed, and I pose it primarily to Mr. Kojm. You testified at a
    hearing I attended last week, and I didn't get to ask this
    question, but in the executive report, executive summary to the
    9/11 Commission report, there was a sentence that struck me in
    which the report states, we are safer than we were 4 years ago,
    but we are not safe. And I think many of us would agree with
    that. But I think it's very easy for us during this process,
    this hearing process, whether it be in this Subcommittee or
    other Committees or what we do going forward, we tend to focus
    only on what is not working or what is in obvious need of
    change. Can you elaborate on why the Commission believes we
    were safer than we were 4 years ago? I think it is useful for
    us to have it on the record and for the American people to hear
    that.
        Mr. Kojm. Mr. Green, thank you for the question. Certainly
    since 9/11 the Government, meaning both the executive and the
    legislative branch, have under taken significant steps, the
    creation of the Department of Homeland Security, the creation
    of TTIC as we've just discussed here this morning, changes in
    border security, much more with respect to aviation security in
    terms of checkpoint screening.
        I think our fundamental point would be that there's so much
    more we could do and that we could do more efficiently, and
    that the institutions of Government still need comprehensive
    reform, and that there are many reforms of policy as well that
    are still required. Thank you.
        Mr. Green. I appreciate your answer. I think you can tell
    from the hearings that you have attended, the statements that
    you have seen, that we all agree, and that there will be
    dramatic steps taken. But I think it is important for us to
    talk about what is being done, because I think people need to
    realize that.
        I guess in that same vein, Mr. Pistole, what have you seen
    that has been a positive change since 9/11; and perhaps in
    particular with respect to the tools that the FBI has seen as a
    result of PATRIOT Act, what progress have you seen?
        Mr. Pistole. Clearly Congressman, the PATRIOT Act and the
    FISA court of review decision and the attorney general
    guidelines have made it much more of a fair fight from our
    perspective, whereas, prior to 9/11, it was like a boxer with
    one hand tied behind his back trying to do the job that the
    American people expected to us do but we couldn't even share
    within the FBI between the intelligence investigation and the
    criminal investigation. So, clearly, that has made us more
    efficient in what we do and the way we conduct business.
        In addition to that, by being able to share within the FBI,
    we then are able to share outside the FBI in a much more
    cohesive fashion and in a way that makes efficiency something
    real. And the creation of TTIC I think is one of the key things
    that has been done and implemented since 9/11 where we have CIA
    case officers, we have Department of Homeland Security, we
    have, clearly, FBI agents and analysts sitting there who are
    sharing information real time and where non-FBI employees, as
    Mr. Brennan noted earlier, can access FBI counterterrorism
    investigation on a real-time basis. That simply wasn't done
    prior to 9/11 on any type of meaningful scale.
        Also, the integration of case officers, agents, analysts
    between the various agencies has significantly helped the
    exchange of information, and it has enabled us to share the
    information that, for example, if we have reporting overseas
    either from a foreign intelligence agency or CIA has picked up
    information, the bottom line is how efficiently can we get that
    information to the police officer on the street, whether it's
    in Omaha, Des Moines, Los Angeles or New York, who needs to
    action that information.
        And we're working on the continuation of efforts to
    declassify or classify at the lowest possible level that
    information at the origin so we can pass what is needed while
    still protecting the sources and methods so that the action can
    be taken that corresponds with what the intelligence is.
        Just to summarize, everything we do in the FBI is
    intelligence-driven now. It used to be we would collect
    information that would be used in the prosecution for a
    particular case. Everything we do now is intelligence-driven.
    The start-up of the Office of Intelligence, the Director of
    Intelligence of the FBI, what Mr. Brennan's people do and what
    this new NCTC and NID would do as we envision is to assist in
    that process of establishing collection requirements and then
    having us execute those requirements in a logical, cohesive
    fashion.
        Mr. Green. Mr. Brennan, my time is running short. I don't
    know if there's anything you care to add about what you've seen
    in terms of improvements since 9/11.
        Mr. Brennan. Just in addition to what has already been
    mentioned, I think there has been a much greater appreciation
    of the holistic nature of the terrorism challenge. It is not
    just CIA or FBI or Department of Homeland Security. It extends
    beyond that. The Department of Agriculture, Health and Human
    Services, Department of the Interior. And it's not just at the
    Federal level. It's also trying to bring in the governors and
    mayors and first responders and others.
        It's a tremendously complex and interconnected system of
    systems that we need to put together. It's in some respects
    mind numbing in terms of its complexity and comprehensiveness,
    but I think there is an effort to try to transform those
    individual departments and agencies that make up that large
    universe of components that are really working together now,
    and it is challenging to do that in as fast a fashion as
    possible.
        I am very sympathetic to calls for these things that have
    not happened yet, but trying to bring it all together, that
    engineering that's required to make sure the policemen on the
    streets of Baltimore can be serviced the way he or she needs to
    be. It is a tremendously challenging, again, engineering
    problem that we have to deal with. I think there has been that
    appreciation.
        Mr. Green. Thank you.
        Thank you, Mr. Chairman.
        Mr. Coble. This concludes our second round, and I am
    scheduled to be at a luncheon meeting at 12:15. The Ranking
    Member has another question, and in a sense of fairness I'm
    going to recognize him. If Ms. Jackson Lee and Mr. Chabot have
    one more question, I would implore you--Ms. Lee, if you will
    start--I will implore you all if you can, for the sake of the
    old man, be brief so I can make my luncheon meeting. Ms.
    Jackson Lee.
        Ms. Jackson Lee. With the distinguished Chairman's
    graciousness, let me try to put this on acceleration.
        First of all, I want to acknowledge the work of our staff
    on this Committee. I know, not privy to staff works in other
    Committees, let me thank the Chairman's staff but also the
    Ranking Member's staff.
        Mr. Coble. If the lady would suspend, I want to echo that.
    The staff on both sides, Democrat and Republican, have been
    extraordinary, outstanding, did an outstanding job in
    preparation for this hearing.
        Ms. Jackson Lee. This is an excellent document. I thank
    them. The reason why I thank them is because there is an
    important probative question that I just want to ask Mr. Kojm
    and Mr. Pistole.
        Mr. Kojm, did the 9/11 Commission--and I made the point
    that we had information, but we didn't all use it correctly--
    make a definitive, definite recommendation of a national
    identification card?
        Mr. Kojm. Congresswoman, the answer to that would be as
    follows: We discussed the topic, and I think the Commissioners
    appreciated at least some of the sensitivity surrounding such a
    recommendation, and they consciously decided not to make that
    recommendation. But they do believe that we need stronger
    standards for drivers' licenses and birth certificates because
    these are the essential documents that all individuals use to
    get other documents. And if those basic documents are not at a
    high standard, then successive documents will not be. But the
    recommendation is Federal standards, not a national ID card.
        Ms. Jackson Lee. I thank you.
        I don't want to prolong it, I will just say, Mr. Chairman,
    I think I am hearing that we can have stronger standards in
    States, as opposed to Federal standards, but there is no
    national ID.
        The only thing for Mr. Pistole is I would appreciate just a
    quick answer on the calls that I am getting in my office about
    peace activists moving into New York and the intimidation that
    appears to be happening which is blurring the--between
    activists and terrorists. I want to know what the FBI is doing
    to make sure that blur does not happen.
        I thank the Chairman very much for a very excellent
    hearing. I yield to the gentleman. Thank you.
        Mr. Coble. You're indeed welcome.
        Mr. Pistole. Yes, Congresswoman, there has been some recent
    press reporting about what the FBI has done in terms of
    interviews of potential protesters, both at the DNC and at the
    RNC. And that is all predicated on--first, let me say it's a
    very small number of people that we've interviewed. In fact,
    it's less than the number of people in this room right now that
    we've interviewed nationwide. So out of a nation of 280 million
    people, we've interviewed less people than are in the room
    currently; and each of those people were interviewed because we
    had specific, credible information that they either were
    planning to engage in criminal activity, violent activity at
    one of the two conventions or that they had knowledge of one of
    the other people that would be engaged in that activity.
        Ms. Jackson Lee. Thank you. Thank the Chairman.
        Mr. Coble. The gentleman from Ohio, Mr. Chabot.
        Mr. Chabot. Thank you, Mr. Chairman. I'll be very brief.
        The Chairman of the Senate Intelligence Committee has come
    out with a plan very recently, and I'm sure that not everyone
    has had an opportunity to fully understand or read about this
    and digest it, but if anyone had any comments that they'd like
    to make very briefly--I'm sure some probably would like to
    comment, so I'll open it to the floor.
        Mr. Kojm. Just very briefly, we very much welcome the
    Senate's taking up our recommendations, and we look forward to
    studying the details of the proposal. We appreciate the Chair
    of that Committee is taking the report as his base for his
    bill.
        Mr. Nojeim. I'd like to add we haven't seen the plan, but
    the things to look out for are where is the intelligence
    director placed? Is it going to be at the White House? And does
    the FBI intelligence function report to this top spy or does
    the FBI intelligence function report to the FBI director, as is
    now the case?
        Mr. Pistole. We have, of course, great respect for Chairman
    Roberts. The issue for us is whether the FBI will be able to
    maintain its independence of investigations and collection,
    obviously predicated on the requirements set by whomever it is,
    the NID, the NCTC, but then are we able to execute that in a
    way that we are able to protect the civil liberties of people
    in the U.S. and make sure we are doing everything that we can
    to prevent the next terrorist attack?
        Mr. Brennan. I would just point out that the Goldwater-
    Nichols legislation that totally revamped and transformed the
    military took about 4 years to work through the various
    congressional efforts here. It is an extraordinarily complex
    task to transform the Intelligence Community as well as just
    the CIA itself.
        I think any effort to do that really needs to be a
    thoughtful one, a careful one, after considered options and
    thorough discussion. But to do it quickly and to just do it at
    the facade level and not understanding the implications of
    moving things about, and my understanding of this is that it
    would make the agency three separate, distinct agencies, that's
    not moving toward integration in my mind. But I would just
    caution people to make sure we understand exactly what is being
    called for and what the implications are of such a dramatic
    transformation very quickly.
        Mr. Coble. I thank the gentleman.
        The Ranking Member, the gentleman from Virginia.
        Mr. Scott. Thank you, Mr. Chairman.
        Mr. Nojeim, under section 215, after the Department of
    Justice has made an assertion that the information is needed
    for a terrorism investigation, does the judge have any
    discretion on issuing the warrant?
        Mr. Nojeim. Under the statute, the assertion is enough. The
    judge has no discretion. He is a rubber stamp.
        Mr. Scott. I would like to pose a question for the record,
    Mr. Chairman. We have heard back and forth about which model is
    better. My question, I guess to Mr. Brennan and Mr. Kojm, is to
    whether an on-the-ground FBI agent is more likely to actually
    get the information needed under the TTIC model or under the
    NCC model? Which model will actually make it more likely that
    an on-the-ground FBI agent might actually get the important
    information?
        The third question, I guess to Mr. Pistole, is if you could
    provide us with the employment diversity of the FBI and if
    somebody has access to the other agencies I think that would be
    helpful. I think there were some questions prior to 9/11, and I
    believe improvements have been made since then so we're better
    able to do our job.
        The other is on the No-Fly List. Exactly what database is
    being used? When the press reports have T. Kennedy being the
    name that was on the No-Fly List--and there must have been
    thousands if not millions of people whose names are
    inadvertently on the list--how many hijackers would have
    actually been stopped by our database and what efforts have
    been made to prevent it from being overly inclusive?
        My question to Mr. Pistole on the FISA wiretaps, does--at
    the request of the Department of Justice, we watered down the
    requirement that the purpose of the wiretap be foreign
    intelligence, to a significant purpose is foreign intelligence,
    which invites the question what was the primary purpose of the
    wiretap to begin with if it was not--if you're getting a FISA
    wiretap and it wasn't for foreign intelligence, what was it
    for?
        And once you've gotten the wiretap, then you get the roving
    wiretap. You can start placing wiretaps and listening to a lot
    of conversations without a crime ever being alleged. You're
    listening to a lot of conversations. And that is the
    information that, without a crime, the wiretaps without a crime
    ever have been alleged, that information is what's being turned
    over to the CIA and FBI and everybody else in town. That is our
    concern, that you're listening to a lot of stuff and can use it
    as a pretense--a pretext, excuse me, for the investigation to
    begin with.
        If the primary purpose was a criminal investigation without
    probable cause, you can conduct the whole investigation as long
    as somebody in there is an agent of a foreign government, is
    that right?
        Mr. Pistole. Well, I think what you touched upon is the
    fundamental distinction between the criminal wiretap authority
    under title III, the Omnibus Crime Control Act of 1968, and the
    FISA authority. And clearly the protection of national security
    is at least as significant if not more significant than
    criminal activity.
        As far as the event of the 9/11 hijackers, even though
    there were some minor infractions of law that took place while
    they were here that had been documented very well by the
    Commission, it wasn't up until the time that they were actually
    hijacking the aircraft that there was a clear violation of law.
    Even the smuggling of the blades onto the planes at that time,
    as best we can tell, were under the four-inch requirement. So
    even though they weren't violating a law, we still need the
    authority to conduct intelligence investigation under the
    Foreign Intelligence Surveillance Act and the court to ensure
    that we are preventing future terrorist acts, and I would state
    that we have never used a Foreign Intelligence Surveillance Act
    wiretap as a subterfuge or a device.
        Mr. Scott. What purpose--if it is not the primary purpose
    of the wiretap, what is the purpose?
        Mr. Pistole. Is to protect national security from either
    foreign powers or those who are affiliated with a terrorist
    organization.
        Mr. Scott. So if we added that to the PATRIOT Act that
    wouldn't offend you.
        Mr. Pistole. Add what, sir?
        Mr. Scott. Add that the primary purpose has to be foreign
    intelligence or national security.
        Mr. Pistole. Well, the PATRIOT Act, the significant
    purpose, if you want to, obviously, debate the importance of
    significant or primary, that was done by Congress.
        Mr. Scott. Actually, Congress increased the standard.
    Because the Department of Justice asked for ``a purpose,''
    which meant any purpose, and the primary purpose could have
    been something else. My question is, if we limit the use of
    FISA wiretaps to foreign intelligence and national security as
    the only purposes you can be getting the wiretap for, would
    that offend you?
        Mr. Pistole. That's generally the situation now. If you're
    thinking of a specific example that I am missing, then I may
    have a problem with that.
        Mr. Scott. A specific example you're missing is a pretext
    for running an investigation without probable cause.
        Mr. Pistole. Which we don't do. We still need a level of
    probable cause to----
        Mr. Scott. So I am hearing that you would not be offended
    if we restricted the use of FISA to what FISA is supposed to be
    there for.
        Mr. Pistole. Absolutely, not because that's what we use it
    for.
        Mr. Coble. I thank the gentleman.
        Folks, I thank not only the panel but I thank those in the
    audience who have expressed interest by your presence here.
        We are in very trying times, folks. I think Mr. Green or
    Mr. Chabot, one of the two, indicated, quoting from the 9/11
    Commission report, that we are safer than we were prior to 9/
    11, but we are not safe. We are dealing with people who not
    only are interested--unlike Hitler, not only are interested in
    conquering the world, they're not adverse to destroying the
    world. And they'll destroy you and they don't mind destroying
    themselves. How do you respond to that? That is so fanatical
    it's beyond my grasp. I'm not smart enough to grab it.
        But I appreciate what you all are doing. I think this has
    been a very productive hearing.
        I thank the witnesses for your testimony, and this
    concludes our oversight hearing on the recommendations of the
    9/11 Commission.
        The record, by the way, will be open for 1 week. If you
    have additional information to submit, we will happily receive
    same.
        The Subcommittee stands adjourned.
        [Whereupon, at 12:18 p.m., the Subcommittee was adjourned.]

                                A P P E N D I X

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                   Material Submitted for the Hearing Record

     Prepared Statement of the Honorable Steve Chabot, a Representative in
      Congress from the State of Ohio, and Chairman, Subcommittee on the
                                  Constitution
        I'd like to first thank Chairman Coble for agreeing to hold this
    important hearing today. I would also like to thank today's witnesses
    for appearing before us. Over the last 20 months, the National
    Commission on Terrorist Attacks Upon the United States--commonly
    referred to as the 9/11 Commission--has worked tirelessly. Our nation
    owes a great debt of gratitude for their work, and I am confident that
    we will benefit from their expertise, as well as from the rest of our
    panelists, this morning.
        As we know far too well, September 11, 2001 changed our world. It
    changed the way in which we must deal with terrorism and the way in
    which we, as a country, must protect ourselves.
        Since that tragic day, Congress and the Administration have taken
    steps to help better protect our nation at home and abroad. Through
    passage of the Patriot Act and the creation of the Department of
    Homeland Security, we have provided law enforcement with enhanced
    investigative tools and improved our ability to coordinate activities
    designed to protect against the future threat of terrorism. Through the
    heroic actions of the brave men and women serving in our armed forces,
    we have also pursued the terrorists and those who assist them in places
    such as Afghanistan and Iraq.
        Yet, these actions are not enough to guarantee our nation's
    security or freedom. This can only be accomplished through continued
    vigilance and a willingness to challenge conventional wisdom. We must
    continue to improve our intelligence capabilities, strengthen our
    defenses, and stay a step ahead of our enemies.
        To help accomplish these critical goals, it is imperative that
    Congress provide a comprehensive and expeditious review of the 9/11
    Commissions recommendations--then move forward with initiatives that
    will further improve our ability to combat terrorism and defend our
    citizens.
        As the Commission notes, we must also be mindful of the protections
    afforded by our Constitution and our need to guard them as we work to
    better protect our country. Ignoring important civil liberties will not
    only erode our freedoms, but will undermine legitimate efforts to
    increase our security.
        I look forward to discussing the Commission's recommendations with
    our witnesses today and determining what Congress can do to better
    protect our nation.

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