[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
95-499 PDF WASHINGTON : 2004
_____________________________________________________________________________
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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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