[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




                                 ______

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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

                              ----------                              


               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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