[Senate Hearing 108-927]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-927
 
    KEEPING AMERICA'S MASS TRANSPORTATION SYSTEM SAFE: ARE THE LAWS 
                               ADEQUATE?

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



                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 8, 2004

                               __________

                          Serial No. J-108-66

                               __________

         Printed for the use of the Committee on the Judiciary




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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
             Bruce Artim, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director



                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Biden, Joseph R., Jr., a U.S. Senator from the State of Delaware.     9
    prepared statement...........................................    55
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  prepared statement.............................................    65
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    76
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     1
    prepared statement...........................................    95

                               WITNESSES

Frazier, Ernest R., Sr., Chief of Police and Security Department, 
  National Railroad Passenger Corporation, Washington, D.C.......    16
Jenkins, Brian Michael, Director, National Transportation 
  Security Center, Mineta Transportation Institute, San Jose, 
  California.....................................................    18
Lindsey, S. Mark, Chief Counsel, Federal Rail Administration, 
  Department of Transportation, Washington, D.C..................     6
Mattice, Harry S., Jr., U.S. Attorney, Eastern District of 
  Tennessee, Chattanooga, Tennessee..............................     4

                         QUESTIONS AND ANSWERS

Responses of Ernest R. Frazier, Sr. to questions submitted by 
  Senators Leahy and Biden.......................................    30
Responses of S. Mark Lindsey to questions submitted by Senators 
  Biden and Leahy................................................    35
Responses of Harry S. Mattice to questions submitted by Senators 
  Biden and Leahy................................................    46
Question submitted to Brian M. Jenkins from Senator Leahy (Note: 
  At the time of printing, after several attempts to obtain a 
  response to the written question, the Committee had not 
  received a response from the witness.).........................    54

                       SUBMISSIONS FOR THE RECORD

Frazier, Ernest R., Sr., Chief of Police and Security Department, 
  National Railroad Passenger Corporation, Washington, D.C., 
  statement......................................................    59
Jenkins, Brian Michael, Director, National Transportation 
  Security Center, Mineta Transportation Institute, San Jose, 
  California, statement..........................................    66
Lindsey, S. Mark, Chief Counsel, Federal Rail Administration, 
  Department of Transportation, Washington, D.C., statement......    79
Mattice, Harry S., Jr., U.S. Attorney, Eastern District of 
  Tennessee, Chattanooga, Tennessee, statement...................    87


    KEEPING AMERICA'S MASS TRANSPORTATION SYSTEM SAFE: ARE THE LAWS 
                               ADEQUATE?

                              ----------                              


                        THURSDAY, APRIL 8, 2004

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:38 p.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Jeff 
Sessions, presiding.
    Present: Senators Sessions and Biden.

 OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 
                      THE STATE OF ALABAMA

    Senator Sessions. The Committee on Judiciary will come to 
order. I am pleased to convene this hearing on ``Keeping 
America's Mass Transportation System Safe: Are the Laws 
Adequate?'' Senator Biden will be the Ranking Member today and 
will be in shortly. He asked that I go ahead and get started, 
so we will do that.
    In this time of terror, there are issues that Congress is 
obligated to consider and discuss. Let me say from the 
beginning that I do appreciate Senator Biden, who has been a 
leader in the area of criminal law and he understands it very 
well.
    My opening statement will refer back to March 11 of this 
year, when democracy was once again threatened when 911 after 
the attacks on the World Trade Center, terrorists again struck 
in Madrid against the Spanish Railway System. While that attack 
might not have resulted in as many deaths as happened in the 
United States on September 11, it is a troubling and deadly act 
telling us that the war against terrorism continues, that 
terrorists are out there still, and they are looking to attack 
our country whenever they have the opportunity, and that 
railways could be one of the prime areas that they would 
attack.
    While there are many questions that remain unanswered about 
the infrastructure that we have today and its vulnerabilities, 
this hearing will focus on the criminal laws and whether or not 
they are adequate to respond to a terrorist attack on our mass 
transit system. I believe this hearing will reveal that the 
disturbing answer is no.
    Every day, millions of Americans turn to mass transit for 
pleasure and business. To be exact, 32 million times a day, 
people board public transportation systems. When people board 
the subway to commute to work or take an Amtrak train to visit 
their family in another State, they should do so knowing that 
our laws are fully adequate to deter and punish anyone who 
would attack them.
    On Tuesday of this week, I introduced S. 2289, the Railroad 
Carriers and Mass Transportation Act of 2004. This bill is very 
similar to S. 1608, the Anti-Terrorism Protection of Mass 
Transportation and Railroad Carriers At of 2003, which I 
introduced last year. While I believe that S. 1608 addresses a 
number of important issues, some have expressed concern about 
the surveillance portion of that bill. Because the need to pass 
rail transportation provisions and protections is now, I was 
willing to modify that bill and eliminate those concerns that 
some of my colleagues may have had.
    S. 2289 will provide many of the necessary tools to 
prosecute terrorist activities, many of which are not currently 
prosecutable as a terrorist act, by eliminating inconsistencies 
that exist between the ``wrecking trains'' statute and the 
Terrorist Acts Against Mass Transportation statute. Let me take 
a moment to highlight some of those troublesome 
inconsistencies.
    The two laws address similar attacks on similar means of 
transportation, but they often provide inequitable results. For 
example, the current wrecking trains statute does not prohibit 
many types of attacks that are currently covered by the mass 
transportation statute. There is no reason that legislation 
should prohibit certain terrorist attacks on an airplane but 
not on a railroad carrier. To that end, the new bill will 
protect both mass transportation systems as well as railroad 
and freight carriers by consolidating the predicate crimes, 
including but not limited to interfering with a dispatcher or a 
driver, and the undermining of our transportation 
infrastructure.
    Moreover, there presently exists a discrepancy in the 
severity of punishment for terrorists who attack trains versus 
those who attack other mass transportation systems. Under the 
current law, when someone violates the wrecking trains statute 
and that violation results in the death of a citizen, the 
criminal will be eligible for the death penalty. However, when 
someone commits a similarly substantial criminal act on a plane 
in violation of the mass transportation statute, he or she is 
not eligible for the death penalty. There is no justifiable 
reason for this distinction and we should eliminate it so that 
those who commit similar acts of evil against this country are 
faced with similar punishments for their crimes.
    To that end, this bill will increase penalties for the most 
heinous attacks against mass transportation systems by 
classifying certain offenses, such as those involving mass 
transportation vehicles carrying passengers, as aggravated 
offenses. The penalty for these attacks range from a fine to 
imprisonment up to life, or under certain circumstances, death. 
These standards will cover railroad freight carriers as well as 
traditional mass transportation systems. Current law does not 
apply justice equally in these circumstances as it should, and 
S. 2289 remedies those concerns.
    In addition, the new bill will make it a Federal crime to 
release biological agents or other hazardous materials on the 
property of mass transportation providers or railroad carriers, 
covering circumstances like Japan's subway gas attack.
    It will eliminate the inconsistency between the requisite 
mens rea in the mass transportation statute and the wrecking 
trains statute so that a person must be shown to have knowingly 
committed the criminal offense. This change will help ease our 
law enforcement efforts to prosecute those who try to harm our 
citizens.
    Those who wish to attack this country should know that we 
will no longer distinguish their attacks based on what means of 
mass transportation they choose to attack. We will move swiftly 
and severely against anyone who dares to challenge the comfort 
and safety of millions of Americans that travel by mass 
transportation every day.
    On more than one occasion, the FBI has warned that 
intelligence has led to the belief that al Qaeda and other 
operatives are targeting the U.S. rail sector. These terrorists 
look to do anything, from destroying key rail bridges and 
sections of track to cause derailment or targeting hazardous 
material containers.
    America has demanded more attention to rail security and 
the administration has responded. No less than two weeks ago, 
DHS announced plans to, among other things, develop a rapid 
response team centered on bomb-sniffing dogs and to implement a 
pilot program that would test the feasibility of screening 
luggage. However, we should not stop there. America demands 
more than additional security mechanisms. We have already 
responded to criminal threats by passing appropriate and 
adequate laws for the purpose of deterring criminal activities. 
So we must act proactively here to meet this requirement.
    It is time to put the terrorists on notice that their 
activities against American citizens will be detected and will 
result in swift and strong punishment. We have to give law 
enforcement the ability to prosecute and the judicial system 
the ability to impose substantial sentences.
    I believe that S. 2289 would accomplish some of these 
objectives. I look forward to hearing the testimony today and 
to working on securing America's mass transit systems through 
adequate criminal laws so that the next time someone asks, are 
the laws adequate, the answer will be yes.
    We will be having a vote right now, at 2:45, I am told. 
Senator Biden should be here soon. The vote has started 
already. It will take me about ten minutes to go and vote. I 
will go and cast my vote and return and then we will have our 
first panel.
    Thank you, and we are adjourned for the interim.
    [Recess from 2:46 p.m. until 3:05 p.m.]
    Senator Sessions. Senator Biden, I expect, will come by 
shortly. The vote is ongoing right now.
    But we have an excellent panel of witnesses who can help us 
with some rather technical matters involving this legislation. 
As a prosecutor myself for quite a number of years, I on more 
than one occasion had the opportunity to be looking to charge a 
defendant with a crime and be shocked that they weren't 
covered, that it just wasn't there, or you had to charge with 
some other lesser crime because that was the only thing that 
was chargeable.
    On the matters of terrorism, we ought to be able to ensure 
that no crime of terrorism has to be charged in some secondary 
way. We ought to have a clear statute that covers that.
    So our first panel, if you will step forward. Mr. Sandy 
Mattice is currently serving as United States Attorney for the 
Eastern District of Tennessee. We have got a history of some 
good United States Attorneys there. I have known several over 
the years. Prior to his service as United States Attorney, he 
served for more than 10 years as Senior Counsel to the United 
States Senate Committee on Governmental Affairs. We didn't get 
them all straight.
    [Laughter.]
    Senator Sessions. He has private practice experience, 
having been an associate and partner of the firm of Miller and 
Martin in Chattanooga and associated with the firm of Baker, 
Donaldson, Behrman, and Caldwell in Chattanooga, Tennessee.
    Mark Lindsey has served as Chief Counsel of the Federal 
Railroad Administration since 1987. Prior to serving in this 
capacity, he was Assistant Chief Counsel from 1978 to 1984. Mr. 
Lindsey received his law degree from Yale Law School in 1971.
    Mr. Mattice, we will be delighted to take your testimony, 
then turn to Mr. Lindsey. I would ask that you limit your 
comments to ten minutes, if you could. Mr. Mattice?

  STATEMENT OF HARRY S. MATTICE, JR., U.S. ATTORNEY, EASTERN 
         DISTRICT OF TENNESSEE, CHATTANOOGA, TENNESSEE

    Mr. Mattice. Thank you, Mr. Chairman, and good afternoon. 
Good afternoon to the distinguished members of the Committee. 
Thank you for the opportunity to join you today to discuss the 
adequacy of the laws protecting America's mass transportation 
and railroad systems.
    In the wake of Madrid rail bombings and the subsequent 
discovery of unexploded bombs underneath the railway lines in 
France and Spain, this hearing addresses a timely and important 
issue. Mass transportation and railroad systems play a vital 
role in the life of our Nation. Americans regularly use trains, 
buses, airplanes, and other mass transportation vehicles to 
commute to work, visit loved ones, and go on vacation. 
Railroads are also used to transport vital goods and materials 
across the country.
    The availability of safe and reliable mass transportation 
and railroad systems is critical to the health of our Nation's 
economy as well as Americans' quality of life, so we must 
remain vigilant and prepare for the possibility that terrorists 
may attempt to launch attacks on those systems.
    The protection of mass transportation and railroad systems 
obviously requires a multi-faceted approach. In my testimony 
today, however, I would like to focus on one critical element 
of any strategy for safeguarding our Nation's railways, buses, 
subways, ferries, and passenger aircraft, the existence of 
strong, consistent, and effective criminal sanctions under 
Federal law for those perpetrating attacks on mass 
transportation and railroad systems.
    In 2001, Congress took an important step towards protecting 
mass transportation systems when it passed the USA PATRIOT Act. 
Section 801 of the Act created a new Federal statute, 18 U.S.C. 
Section 1993, which criminalizes terrorist attacks and other 
acts of violence against mass transportation systems.
    As the U.S. Attorney for the Eastern District of Tennessee, 
I have witnessed firsthand the value of this new statutory 
provision. Recently, a passenger on a Greyhound bus traveling 
from Nashville, Tennessee, to Knoxville allegedly caused 
disturbances on the bus and then attempted to assault the bus 
driver with a knife. Thankfully, other passengers were able to 
subdue this individual before he was able to reach the driver. 
But the driver, other passengers, and members of the general 
public were put at significant risk by this passenger's alleged 
conduct.
    After reviewing the available options, my office determined 
that the best avenue for prosecuting this violent passenger 
effectively was to charge him under the new Federal statute 
prohibiting terrorist violence against mass transportation 
systems contained in Section 801 of the USA PATRIOT Act. The 
passenger was subsequently indicted for violating 18 U.S.C. 
Section 1993 and a jury trial has been scheduled for June 8 of 
this year.
    As this case demonstrates, Congress and the administration 
have taken significant steps towards ensuring that those who 
attack mass transportation and railroad systems are effectively 
prosecuted and appropriately punished. But there is still more 
to be done to close gaps in these statutes and make them clear 
and less vulnerable to legal challenge.
    This is why the Department of Justice strongly supports S. 
2289, the Railroad Carriers and Mass Transportation Protection 
Act of 2004, recently introduced by you, Mr. Chairman, and I 
want to take this opportunity, Mr. Chairman, to thank you for 
your leadership role in this area. The same legislation has 
also been introduced in the House of Representatives by 
Congresswoman Capito.
    S. 2289 would make a number of significant improvements to 
the Federal criminal laws protecting mass transportation 
systems and railroad systems. I will highlight a few of the 
most significant and important changes.
    To begin with, S. 2289 would consolidate the new Mass 
Transportation statute, 18 U.S.C. Section 1993, and the statute 
imposing criminal sanctions on wrecking trains, 18 U.S.C. 
Section 1992, into a new criminal prohibition against attacks 
on mass transportation systems on land, on the water, or 
through the air, and against railroad carriers. This 
consolidation would harmonize the laws protecting mass 
transportation systems, including passenger trains, and the 
laws protecting railroads, including freight trains.
    Under existing law, for example, the wrecking trains 
statute does not prohibit many types of attacks that are 
currently covered by the mass transportation statute, such as 
interfering with, disabling, or incapacitating a dispatcher or 
driver. S. 2289 would eliminate these inconsistencies.
    It would also strengthen the protecting of mass 
transportation and railroad systems by updating the law to 
match current developments and by making the statutory language 
more precise in several respects. It would also broaden the 
statute's coverage by updating the definition of ``dangerous 
weapons'' to cover box cutters and other previously 
unrecognized weapons.
    S. 2289 would also ensure that terrorists who attack mass 
transportation systems are punished with the appropriate 
severity. Currently, for instance, while those violating the 
wrecking trains statutes are eligible for the death penalty if 
their offense results in death, those violating the mass 
transportation statute are not eligible for the death penalty.
    S. 2289 would end this senseless discrepancy and would 
increase penalties for the most serious attacks against mass 
transportation systems by making it an aggravated offense to 
commit the prohibited terrorist acts in situations involving 
vehicles carrying passengers, high-level radioactive waste, 
spent nuclear fuel, or a designated hazardous material. For an 
offense resulting in the death of any person, the defendant 
will receive either capital punishment or life in prison.
    In conclusion, the Department of Justice believes that S. 
2289, the Railroad Carriers and Mass Transportation Protection 
Act of 2004, would greatly assist in prosecuting those who 
perpetrate terrorist attacks upon this Nation's mass 
transportation and railroad systems.
    Thank you once again for allowing me to appear before you, 
and I look forward to your questions on this important issue.
    Senator Sessions. Thank you very much, Mr. Mattice.
    [The prepared statement of Mr. Mattice appears as a 
submission for the record.]
    Senator Sessions. Mr. Lindsey, we are glad to hear from 
you.

   STATEMENT OF S. MARK LINDSEY, CHIEF COUNSEL, FEDERAL RAIL 
 ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, WASHINGTON, D.C.

    Mr. Lindsey. Thank you, Mr. Chairman. Good afternoon. I am 
very pleased to be here to testify on behalf of the Secretary 
of Transportation concerning improving the criminal laws 
addressing sabotage and terrorism on the rails and in mass 
transit. We think this is extremely important. I ask that you 
put my full statement in the record and I will summarize it 
very briefly.
    Senator Sessions. We will be glad to make that a part of 
the record and hear your comments.
    Mr. Lindsey. Thank you, Mr. Chairman. The hearing is 
especially timely in the wake of the March 11 attacks in 
Madrid. Certainly, those were extremely serious attacks. We 
from the FRA, though, have over a number of years observed a 
fairly steady drumbeat of acts against railroads of much lesser 
magnitude.
    We see it as extremely important, not just to address these 
large headline-capturing events but also the many smaller ones 
that have occurred, that there be strong, effective, consistent 
criminal statutes that enable prosecutors to go after the 
people who perpetrate these acts effectively and to deter those 
who are susceptible of deterrence. Now, granted, they aren't 
all. Our first line of defense needs to be to try to detect 
those who might do it and prevent them in the first place. But 
it is certainly extremely important that when we have potential 
perpetrators who are deterrable, that we have strong, effective 
criminal statutes which will do that.
    The existing wrecking train statute dates from 1940 and 
shows its age a bit. Mr. Mattice certainly laid out a number of 
the ways, and you did, sir, in your opening statement, in which 
S. 2289 would improve the existing statutes. The Department 
very strongly supports S. 2289. We have been looking for 
legislation of this sort for a good 7 years and we are eager to 
work with you to enact such a statute, which we think is very 
badly needed.
    Secretary Mineta has been very strong in his leadership in 
transportation security, setting a strong example for everyone 
in the Department of Transportation to follow in pursuing it. I 
know under his leadership that we are eager to work with you to 
enact this legislation.
    Instead of repeating in detail all of the ways that S. 2289 
would improve the statutes, I think I will simply stop there, 
sir, and respond to your questions.
    [The prepared statement of Mr. Lindsey appears as a 
submission for the record.]
    Senator Sessions. I think Senator Biden will be here 
shortly.
    Mr. Mattice, if you are trying to prevent a terrorist 
attack, and I understand that is the key philosophy now of the 
Department of Justice, the FBI, and the Attorney General is to 
not wait to prosecute a criminal afterwards, but to try to 
intervene in advance. You can't make an arrest unless there is 
a crime afoot, can you? In other words, if you know somebody is 
going to do something and it is not a Federal crime, it can 
undermine your ability to make a preventive arrest, is that not 
right?
    Mr. Mattice. That is correct, Mr. Chairman. In the absence 
of a clearly definable criminal statute on point, we are 
without authority to act with our investigative and arresting 
agencies to issue a request for an arrest warrant.
    Senator Sessions. Senator Biden, this is the first question 
I asked and--
    Senator Biden. No, no, no, go. I will catch up.
    Senator Sessions. Okay. We will go right ahead, then. I 
will ask you this. Under the current law, the statute 
prohibiting the wrecking of trains, 18 U.S.C. 1992, provides 
for the option of a death penalty if an attack on a train 
results in a death of a person. However, the statute 
prohibiting a terrorist attack or other acts of violence 
against mass transportation systems, Section 1993, does not if 
an attack is on a mass transportation system and causes death. 
Do you see any reason for that disparity? Should we fix it, and 
does this bill do so adequately? Mr. Mattice?
    Mr. Mattice. Your Honor, first of all--or Mr. Chairman, I 
am sorry.
    Senator Sessions. That is all right. I am glad to hear a 
real lawyer in here.
    Mr. Mattice. I am used to being a lawyer in court, Mr. 
Chairman.
    [Laughter.]
    Mr. Mattice. Certainly, I see no reason for--
    Senator Sessions. I still say that to Senator Biden when he 
was chairing the Committee.
    Mr. Mattice. I see no reason for the disparity in that 
respect. This statute does fix that disparity, and certainly, 
as we have come to recognize the unfortunate ingenuity of 
certain people intent on doing harm with various devices, it 
would be a valuable law enforcement and prosecutorial tool.
    Senator Sessions. Now, under 1993, current law, it 
prohibits the placing of a biological agent or toxin on or near 
a mass transportation vehicle with the intent to endanger the 
safety of any passenger or employee of the mass transportation 
provider. Eighteen U.S.C. 1992, however, does not similarly 
prohibit placing a biological agent or toxin on or near a 
freight train.
    Mr. Lindsey, I guess that is a concern to your agency. Do 
you see any reason for the disparity? Is there, and am I 
correct that there is one, and should we fix it, and do we do 
so adequately in this legislation?
    Mr. Lindsey. Yes, Mr. Chairman, you are correct. There is a 
disparity, and no, there is no sound rationale for the 
disparity, and yes, sir, I think S. 2289 does fix it correctly 
and adequately. I think it is very important that it do so. 
Freight trains carry a tremendous variety of commodities, among 
which are hazardous materials of all types. Should the 
placement of a biological agent on a train, for example, 
disable the operating crew, making available to somebody some 
of the hazardous materials on the train, that would be an 
extremely adverse event. We ought to deter that event if we can 
and punish it harshly wherever we cannot.
    Senator Sessions. A train, even though it is a freight 
train, not a passenger train, has the potential to do 
tremendous amounts of damage, either caused by the chemicals it 
may be carrying or surreptitiously may have been placed on it, 
very dangerous chemicals and toxins. There seems to be a gap 
there, particularly for freight trains, under our current law. 
Is that correct?
    Mr. Lindsey. That is correct, Mr. Chairman. A tremendous 
amount of the freight flowing in international commerce and 
through the United States occurs in enclosed freight containers 
that might contain all sorts of things, and it would certainly 
be an extremely adverse event were a toxin or biological agent 
placed in one of those. We certainly need an adequate criminal 
statute to be able to address any such event.
    Senator Sessions. The way we have written this, we use the 
standard of ``knowingly.'' I don't know if you are aware of it, 
Mr. Mattice, because that is a significant prosecutorial 
standard of proof. It is not the highest. But as I read the 
statute and it is our intent, if the offense were to rise to 
the level of a potential death penalty, the death penalty 
statute that requires willful and knowingly, I believe the 
language is in that penalty section. Intentionally is a 
standard which is a higher standard than knowingly. That would 
cover any death penalty case, or have you had a chance to look 
at that? I should have given you advance notice.
    Mr. Mattice. Mr. Chairman, yes. We have looked at that and 
we believe that the knowingly standard, as incorporated in S. 
2289, would be sufficient to permit this to be a death-eligible 
statute.
    Senator Sessions. It would make it a death-eligible 
statute. But before the imposition of the death penalty--and I 
think this is important. I think ``knowingly'' is, frankly, not 
a sufficient standard for the death penalty. I think somebody 
should intentionally do something before you execute them. The 
death penalty statute, 3591, says a defendant who has been 
found guilty of these certain offenses that carries a death 
penalty, intentionally killed a victim and so forth. So the 
intent requirement that is the highest standard is in the--
before you could do a death penalty, you would have to meet 
that standard.
    Mr. Mattice. Yes, Mr. Chairman, that is correct. Under the 
scheme in Federal law, as you now, you can have a variety--
well, not a variety, a limited number of offenses that are so-
called death-eligible, and then the way the Federal statutory 
scheme works, then in order to make a recommendation of death 
in a particular case, you go to another statutory scheme that 
does have very stringent guidelines before the prosecutor can 
actually make a recommendation to the Attorney General to seek 
death in a particular case.
    Senator Sessions. Very good.
    Senator Biden, I thank you for coming. I know you have a 
tremendous amount of activities, and especially as the Ranking 
Member on the Foreign Relations Committee. I know there has 
been a lot going on there. Over the years, Mr. Mattice, Senator 
Biden has been a key player in things such as the sentencing 
guidelines and other things that prosecutors like us have used. 
So I am glad you could be here, Senator Biden, and you take any 
time you need to make any opening statement you would like, and 
also you have your questions.

STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR FROM THE 
                       STATE OF DELAWARE

    Senator Biden. Thank you, Mr. Chairman. Obviously, my 
schedule is no busier than yours. We just have different calls 
on us at the moment.
    This is an issue which the Chairman knows I have been 
intensely interested in for a long time. As usual, the Chairman 
not only knows the law and the statute, but knows the 
constitutional requirement under the death penalty statutes. 
They are written the way they did to comport with the Supreme 
Court rulings on the requirement of intent.
    There are two phases, I think, to the Chairman holding this 
hearing, two pieces. One is the enforcement side of this. We 
are talking about it now, and that is whether or not we should 
have a death penalty. We should rationalize the statutes that 
exist, and I think he is right.
    I think his legislation is--I must tell you, I haven't fly-
specked it myself, but based on what I know, I agree with what 
the Senator is attempting to do, and I guess we are going to 
have a second panel a little bit later that is going to talk 
about the prevention side, not in terms of dissuading because 
of penalty, but physically preventing this from happening.
    But I would like to ask about resources on the law 
enforcement side of this a moment. I will be relatively brief 
here.
    We rely heavily, as you know as a prosecutor, and Mr. 
Lindsey, as you well know, on the expertise and the talent of 
the FBI in a lot of these cases, although a lot of these cases, 
I mean, when we find a terrorist trying to take down a tunnel 
or a track or a bridge over which a train is going, it is as 
likely to have it be some local county sheriff finding that 
person as it is someone with night-vision goggles wearing 
fatigues working for the Special Forces Unit.
    I realize this cuts across, but the FBI is an integral part 
of all of this. What we have learned from al Qaeda is that they 
are persistent and they tend to want targets that are 
celebrated in the sense that they can either have significant 
symbolic imagery if they are hit and/or do significant damage.
    One of the things the Chairman and I--he may remember 
this--a year ago talked about was we are concerned about 
someone putting plastic on their body and walking into a city 
bus and blowing themselves up, or a restaurant. We see that 
happening in other parts of the world. It happened in Paris as 
many as 15 years ago and it is happening in Israel every day.
    But what we are trying to figure out is how we prevent the 
catastrophic event. We can't stop everything. I know there are 
over 100,000 miles of track in the United States of America 
because, as my friend--and he has been supportive of this--my 
friend will tell you, I have been a broken record on rail 
security for God knows how long. People say to me, well, you 
can't protect every mile of track. Well, that is true, but I 
sure can protect 350,000 people in the tunnels underneath New 
York City today. That is how many people will be in the seat of 
a train underneath the ground in a tunnel, the most recent one 
of which was built in 1911, with no security, no lighting, et 
cetera.
    Now to my question. The FBI is critical. The major cities 
in America where we have counterterrorism forces are the ones 
that we are assuming is the most likely place an al Qaeda will 
go, though they can go anywhere, but they are more likely to go 
to New York City, Los Angeles, Atlanta, than they are to 
Selbyville, Delaware, or the Eastern Shore of Maryland, et 
cetera. We have relatively large offices there of the FBI. The 
FBI agents talk about the harsh realities of the ultimate 
impact investigations, is the phrase they use, in these major 
cities where the major damage could be done.
    Now, I have spent a lot of my time here, the Chairman, as a 
prosecutor prior to coming here, to understand there is some 
correlation between resources and protection. These young women 
and men joining the FBI, many of whom have law degrees, most 
have advanced degrees, are, for example, in New York City, 
there is an article in USA Today titled, ``Low Pay Squeezes FBI 
Agents, Perhaps U.S. Security.''
    There is a quote from a young man who is--it talks about 
this low pay and describes how one young agent in the New York 
City office, a law school graduate, a former Marine captain, 
whose starting salary is $39,000 a year--$39,000 a year. He 
lives in a sparse rented apartment 42 miles away from the City 
of New York because it is the only place he can find one to 
live because he can't afford to live where he works. The agent 
said, quote, ``I took an oath when I joined the FBI. I never 
thought it would also include the vow of poverty,'' end of 
quote.
    So my question is this. Do you fellows think, and I realize 
it is above your pay grade, as we say, to be able to--but just 
from your experiences, do you believe that we should be going 
back and taking a look at the starting salaries we are paying 
the brightest young women and men we are looking for to be the 
front line in a very sophisticated line of work--forget the 
danger, just a sophisticated line of work requiring some real 
ingenuity and capability. Do you think we should be paying 
these folks more to start?
    I mean, patriotism is a motivating factor, but when you 
have a law school degree, you can start in that same city and 
get a job on Wall Street. I think the starting salary now in 
law firms, you know, they have a standard start, I think it is 
$158,000, $160,000, and yet we are asking these same bright 
people to maybe be agents, work as a counterterrorism 
specialist in the FBI office in New York City and start at 
$39,000.
    What do you think? Talk to me about that. Or is it enough 
that we are just still going to attract just really good, 
bright people and that is all we can afford or should afford? I 
know as prosecutor, you are not making a lot of money, either, 
but you will get no empathy up here.
    [Laughter.]
    Mr. Lindsey. Do you want to take the first shot?
    Mr. Mattice. I guess I will take the first crack, Senator. 
Thank you for the question. As you point out, they make these 
decisions above my pay grade, and certainly as a Federal 
employee and as a citizen, I certainly understand the competing 
demands on the Federal budget. In one sense, having the 
privilege to serve as U.S. Attorney and observing our law 
enforcement officers working on a day-to-day basis, and I have 
to say, I have to emphasize, it has been my privilege to serve 
in this capacity. There are days when I think there is not 
enough money in the world to compensate the folks for the 
service that they render to this country. On the other hand, it 
has also been my experience that most of them do it not for the 
money, for the privilege of serving themselves.
    I hate to come down that way. As I say, they do make those 
decisions above my pay grade and I guess we can only hope until 
we find a way or until policy makers such as yourself and the 
administration who sets the budget finds a way to allocate the 
scarce resources out there for all our needs, I guess we just 
have to hope that we do have the sort of dedicated folks out 
there who are willing to make--who they and their families are 
willing to make the sacrifices necessary to protect us.
    Senator Biden. What I am going to urge my colleagues to 
think about, and professionals like you guys, is I agree it is 
never going to be competitive. I am not suggesting that. 
Otherwise, my son wouldn't be making $50,000 as an Assistant 
U.S. Attorney in Philadelphia, although he has now, after 7 
years, gone. You would have made a lot more as U.S. Attorney, 
the same as you, sir, and that also goes for your job, Mr. 
Lindsey.
    But I do think $39,000 to start is shamefully low in terms 
of what we ask these folks to live on, and it is not like they 
are living in suburban Wilmington, Delaware, or in suburban 
Birmingham, which are still high standards of living, but 
living in San Francisco, New York, Atlanta, Miami, places where 
there is a very high cost of living.
    Let me switch and I will end my questioning of this panel, 
Mr. Chairman.
    One of the things that frustrates me is, and this is mainly 
directed to you, Mr. Lindsey, is to state my--I was going to 
try to figure out how to ask this question without revealing my 
prejudice, but it is so obvious what my prejudice is, I might 
as well not try to even pretend to be objective.
    We have a set of very stringent laws, which I fully 
support, relative to airline passenger travel. We literally 
have, not figuratively, literally have scissors women use to 
trim their eyebrows taken as they go through a metal detector. 
I have had literally a nail clipper you buy for $1.79 taken, 
and I am not complaining. There is a whole bevy of laws 
relating to airlines that talk about and make it a crime to 
possess a weapon, possess an explosive, et cetera.
    But that same legislation does not apply to public 
transportation other than airlines. Why, when you have 560 
people on a loaded Amtrak train, about 24 of which will leave 
and arrive in the station today down the street, which contain 
more people, or as many people as a loaded 747, is there any 
reason why we shouldn't rationalize the law, that if you bring 
a weapon, if you--I am not figuring out how you detect it, but 
if there is a weapon that you bring onto that train, it is ipso 
facto a violation of Federal law, like it is if you go onto an 
airline? Can you think of any rationale why we should treat 
them differently?
    Mr. Lindsey. Certainly, there is a great deal of value in 
consistency here, Senator Biden. I would certainly agree with 
that. There are some differences in the kinds of vehicles. I 
think S. 2289 ends up addressing very well what a potential bad 
actor can do on a train.
    Some of the differences that make a difference between 
trains and airplanes, for example, is that compared to the 
difficulty of getting into an airline cockpit, it is very, very 
hard to get into the engine compartment of a train. You can't 
readily get there from a passenger car, and should you get 
there, then you don't really have the ability to direct the 
vehicle someplace else. So there are some differences in the 
modes of transportation that do make a difference.
    That said, I think it is extremely important that we reach 
all those kinds of weapons about which you spoke and things 
that can be turned into weapons, such as box cutters, which S. 
2289 would certainly include among dangerous weapons, that a 
few years ago no one would have thought was worth covering and 
that the wrecking train statute sure didn't. It is extremely 
important that we be able to include those and that when 
anybody comes on and uses them, certainly, that--
    Senator Biden. But how about the mere possession? If you 
get on an airplane with the mere possession of an explosive and 
incendiary device or other dangerous weapon, it is a violation 
of Federal law. Why, when I commute every day back and forth to 
Wilmington, Delaware, and I get on a packed train, knowing that 
if, in fact, someone has an incendiary device in a duffel bag 
that is in the middle car going under the Baltimore tunnel, 
which was built in 1869, and explodes it, it is guaranteed to 
do as much damage as would occur if that device went off in a 
747 flying at 35,000 feet. Why should it not be automatically, 
ipso facto, just like getting on an aircraft with an incendiary 
device, a violation of the law?
    Mr. Lindsey. I can't think of any reason why it shouldn't 
be, sir.
    Senator Biden. Okay. I thank you both very, very much, and 
I thank you, Mr. Chairman. With your permission, Mr. Chairman, 
I may have two questions each in writing--I will not make a lot 
of work for you--that at your leisure you could answer in 
writing for the Committee. I would appreciate that if that is 
all right, Mr. Chairman.
    Senator Sessions. Fine.
    Senator Biden. I would ask unanimous consent, Mr. Chairman, 
that my opening statement, because I apologize again for being 
late, be entered in the record at the beginning of the hearing 
as if I had delivered it.
    Senator Sessions. Without objection, we will put that in at 
the appropriate place.
    [The prepared statement of Senator Biden appears as a 
submission for the record.]
    Senator Sessions. This statute, the bill that I proposed, 
does include expanded definitions of weapons for railways, does 
it not, Mr. Lindsey?
    Mr. Lindsey. Yes, sir, it certainly does.
    Senator Sessions. And it includes box cutters and knives 
and other things, is that right?
    Mr. Lindsey. Yes, sir. The definition of dangerous weapon 
is now very broad and comprehensive.
    Senator Sessions. Could it help you under certain 
circumstances? I know it won't cover everything, but under 
certain circumstances, it could be a valuable tool for law 
enforcement.
    Mr. Lindsey. Yes, sir. In a variety of circumstances that 
we have seen over the years, the expanded definition of 
dangerous weapon will be very important.
    Senator Biden. Mr. Chairman, if I could ask a point here, 
because I want to support your legislation, I want to ask for a 
point of clarification. What you are referring to is on page 
four of the bill, Subsection 6--
    Senator Sessions. Page seven.
    Senator Biden. Oh, okay. I am sorry. I was really looking 
at page four. It says, ``engaging in conduct, including the use 
of a dangerous weapon with intent to cause death or serious 
bodily injury.'' I apologize because maybe it is just--
    Senator Sessions. I was having a hard time finding it 
myself. Staff had to help me. The bottom of page seven, under 
definitions, defines dangerous weapon.
    Senator Biden. Now, here is my point. As I understand, 
again, now I pretend no expertise in your bill because I have 
not thoroughly read it. Subsection E--page seven, definition, 
biological agent, dangerous weapon, refers back to the use of 
it. The crime is the use of it, not the possession of it.
    Mr. Lindsey. That is correct.
    Senator Sessions. Yes.
    Senator Biden. My point is, if you get on an aircraft, 
whether you use it or not, if you get on an aircraft with a 
loaded weapon, you get on an aircraft and you get through 
security with a biological agent in your valise, you get on an 
aircraft with possession of an incendiary device, the mere 
possession of it is a violation of Federal law.
    I would urge you to think about the possibility of amending 
this to not make box cutters a violation of Federal law, 
because there is a correlation. It is difficult to get into--by 
the way, the new trains, just so you know, the new train sets, 
as you well know, they have a door. They have a door that you 
can enter from the last car into the engine. The other trains 
do not have a door. You have to get outside, pull a ``Silver 
Streak,'' jump on top of the engine, and get down.
    Now, granted, it is reinforced. What I don't know is 
whether it is as reinforced under the specifications that exist 
for airlines. I don't think it is. I could be wrong. And you do 
know every conductor has a key.
    Mr. Lindsey. Yes.
    Senator Biden. Every conductor has a key, unlike what 
happens on the airline. None of the stewardesses have a key to 
get into that door. So the fact is, we are still making false 
distinctions here.
    I promise you, because of the lack of security on 
switching, I can take a new Metroliner, and we call them--they 
are no longer called Metroliners--a new Metroliner with 500 
people at 150 miles an hour and run it through that damn 
station, never having been able to brake once, and kill 
thousands of people, the people in and the people in the 
station. And all I have to do is take a gun to a head of a 
conductor up front, walk him through that door with his key, 
make it right to the engineer, shoot him in the head, full 
throttle, and have someone working just like they did on the 
ground, making sure that the switching is locked, because there 
is no security on the switching. And I promise you, seven cars 
at 150 miles an hour will make a wreck on an aircraft look like 
a game.
    Nobody listens to me. Nobody pays attention, and that is my 
frustration. You sit there, and I have great respect for you, 
sir. You are talking about how you can't get in the engines. 
You can get in the engines. You don't even have the security 
requirements that exist now for stewardesses on an aircraft 
because we have this ridiculous mindset that only bad things 
can happen in the air.
    The last point I will make, Mr. Chairman, and I didn't use 
to say this, but the terrorists know this already. All you have 
got to do is get in the freight yard here right four blocks 
down the road here, take an ammonium oxide tanker, put an 
incendiary device underneath it that is time--that is how they 
have been blowing up these trains, you know--wait until it gets 
under the Supreme Court of the United States, and I promise 
you, Mr. Chairman, you will see the Supreme Court sink into a 
50-foot hole.
    It goes by. You want to make real news? Wait until you take 
out the Cannon Building. It is not a joke. It is real, real. We 
have no guards. We have no security. And guess what? You can 
walk on that train with as many pounds of plastic as you can, 
acting like you are a jeweler, wheeling the big carts that have 
their big jewelry in it. No one checks it. And you want to blow 
up--I think it is the Cannon Building. Which one, Jim? It is 
the Cannon Building. Take out 150 Congressmen and their staff. 
You think a plane full of fuel is a problem, hang on. Hang on.
    So I hope you would consider just changing one thing, and 
that is making the mere possession on a mode of public 
transportation of an incendiary device, an explosive device, a 
weapon, a gun. I am not worried about box cutters as much as I 
am--that is a problem, maybe. But I would just settle for being 
able to take on a 50-pound bomb. Again, we don't know the 
facts.
    I used to hesitate to say this, Mr. Chairman, because I 
don't want to publish it, but I finally figured out from our 
agency that al Qaeda, all these guys know this. It is not 
like--the only people I am hiding it from are the American 
people. Al Qaeda knows. They know the tunnels. We have been 
warned, by the way, as long as two-and-a-half years ago. We, 
the United States of America, warned by our own intelligence 
service that rail is a likely target, rail, both passenger and 
freight.
    You saw what happened when a tanker blew up in North 
Dakota, for God's sake, in the middle of nowhere, in an area 
that is twice as big as my whole State, and what it did to two 
whole towns.
    So I hope we get serious about this, because I want to tell 
you something. It is a little like Pontius Pilate as we 
approach Easter. He said, ``I wash my hands of this.'' I tell 
you what. I am washing my hands of this. Warning, warning, 
warning, warning, warning. This is self-evident and obvious and 
we are doing thus far nothing. Homeland Security so far has 
done nothing.
    I am sorry, Mr. Chairman. This is more than a hobby horse. 
I think this is the place where you are going to see 
significant casualties of Americans if we don't get smart.
    Senator Sessions. We appreciate your insight and knowledge 
of the rail industry and the problems and threats it faces and 
maybe we can make some progress on some of those suggestions 
that you make, that is for sure.
    I appreciate also your expression of interest in the FBI. 
They are working very, very hard. That starting salary does 
appear to be low. I think there is some additional compensation 
in the major urban areas, but it does trouble me, that starting 
salary for a person with a law degree or accounting degree, 
CPA. They would not be starting at that.
    One thing I would ask you just on that subject, Mr. 
Mattice. I know that since September 11, I suppose, the 
Attorney General and the FBI Director have made terrorism a top 
priority, the top priority of the FBI and the Department of 
Justice. In your experience with what is happening in 
Tennessee, do you think that that has sunk in? Are the FBI 
agents out in the country of America, throughout this country, 
do they react first and foremost, no matter what else is on 
their plate, to anything dealing with terrorism now?
    Mr. Mattice. Mr. Chairman, there is no question about it. 
It has been my experience since I came into office, and I was 
sworn into office on October 16 of 2001, just a month after 9/
11, and by the time I got there, there was no question that it 
was the number one priority of the FBI, including in the 
Eastern District of Tennessee, a relatively rural district like 
much of the country out there, as well as my office.
    By the time I got there, only a month after 9/11, there was 
already set up what was called the Anti-Terrorism Task Force 
run out of my office. Shortly thereafter, the FBI followed on 
our heels of setting up the Joint Terrorism Task Force for East 
Tennessee. I have monthly, if not more frequent, meetings with 
the Special Agent in Charge of the Knoxville Division of the 
FBI. The sole topic is terrorist issues in our district. We 
coordinate, as I say, at least that frequently face to face, 
not to say the countless phone calls we have. It have been my 
experience that in places like East Tennessee, there is no 
doubt that--
    Senator Sessions. I think that is important, because we 
have seen some things. A lot of these cases have bubbled up 
from areas not just in the big cities. They may be carrying out 
their attacks here, but a lot of the people knew about it. I 
knew that this was supposedly occurring. I am glad to see it 
is.
    I believe we have one more panel. Thank you so much for 
your testimony.
    We have Chief Ernest R. Frazier, who is Amtrak's top law 
enforcement officer, having been appointed Chief of Police in 
May of 1994. In December of 2001, he testified before the 
Senate Governmental Affairs Committee regarding the security of 
our passenger and rail infrastructure. He served in the Army as 
an intelligence analyst and also holds a law degree from 
Rutgers University School of Law.
    Brian Michael Jenkins, a captain in the Green Berets, is 
one of the world's foremost authorities on terrorism and 
sophisticated crime. He was a White House appointee during the 
Clinton administration, working in several capacities in the 
field of transportation counterterrorism. He is currently the 
Director of the National Transportation Security Center for the 
Mineta Transportation Institute and senior advisor to the 
President of the RAND Corporation.
    First we will hear from Mr. Frazier, and then turn to Mr. 
Jenkins. Again, we will enter your full statements in the 
record. If you would keep your remarks to the ten-minute limit, 
we would appreciate that.
    Mr. Frazier?

   STATEMENT OF ERNEST R. FRAZIER, SR., CHIEF OF POLICE AND 
 SECURITY DEPARTMENT, NATIONAL RAILROAD PASSENGER CORPORATION, 
                        WASHINGTON, D.C.

    Chief Frazier. Mr. Chairman and Senator Biden, members of 
the Senate Judiciary Committee, thank you for the opportunity 
to testify before this important hearing concerning the laws on 
mass transportation security.
    Amtrak is the nation's only inter-city passenger rail 
transportation company and operates over 300 trains per day 
over some 22,000 miles of rail with approximately 540 stations 
in 46 States. Like rail transportation systems worldwide and 
mass transit systems in the United States, Amtrak functions in 
a very open transportation environment. Because of advantages 
such as easy access, convenient locations, and intermodal 
connections, rail and mass transit systems are completely 
different from the structure and organization of the airline 
transportation and airport industry. As a result, the security 
framework that works ideally in the airport setting is not 
transferrable to rail station systems.
    The Amtrak Police Department has 342 sworn officers, with 
most of its security force located in the Northeast Corridor, 
where Amtrak runs and operates the tracks and infrastructure. 
In 1992, the Amtrak Police Department received its distinction 
of being the first national law enforcement agency in the 
nation accredited by the Commission of Accreditation for Law 
Enforcement Agencies. It has been re-accredited in 1997 and 
2002.
    Though the Amtrak Police Department is a traditional police 
department, since September 11, 2001, our department has worked 
to develop terrorism-based vulnerability and threat 
assessments, emergency response and evacuation plans, as well 
as security measures that address not only vandalism and other 
forms of street crime that were occurring on our system, but 
the potential for explosions and blast effects at critical 
infrastructure locations.
    Amtrak has also developed a security threat level response 
plan that mirrors the Homeland Security Advisory System and 
requires Amtrak to engage in specific security countermeasures 
according to the existing threat level.
    Amtrak has also increased its police canine patrols by 
adding 12 explosive detection canine teams to conduct random 
sweeps of baggage rooms, train platforms, and stations. The 
Police Department has also purchased full-face respirators for 
all sworn personnel and deployed these devices for Amtrak's 
first responders to protect against CBR attack. In major 
stations, gamma/neutron radiological detectors have been also 
deployed to address radiological threats.
    The Amtrak Police Department does budget for elevations in 
HSAS. Frankly, manpower costs when we go to ``orange'' are 
roughly $11,000 in additional funds a day. However, there have 
been so many days already this fiscal year that we are coming 
close to surpassing this reserve budget.
    We also recognize that we must stand ready to manage an 
incident if and when there is some form of attack. Through our 
Office of Emergency Preparedness, we conduct training for first 
responder agencies, over 21,000 of them situated along the 
Amtrak service route. We have purchased a public safety 
database that lists each police, fire, and emergency rescue 
agency in order to facilitate State and local emergency 
response and to establish a clear record of agency training.
    Specifically with respect to criminal law sanctions, Amtrak 
agrees with the language of S. 2289 that reconciles criminal 
acts of terrorism against mass transit systems and amends the 
railroad section of the United States Crimes Code by including 
passenger rail. Any act of terrorism committed against a 
passenger and/or mass transit rail system should be treated in 
the same fashion.
    While criminal sanctions, such as S. 2289, are important 
tools to have in this new security environment, I would also 
ask the Committee and your colleagues in the Senate and House 
to address some basic legal matters that confront railroad 
police across the nation and at Amtrak.
    Specifically, rail police are not on the same equitable 
level as State, local, and mass transit police in key areas, 
such as the ability to participate in safety programs, such as 
the bulletproof vest partnership program, entitlement to public 
safety officer benefits, and in some States like California, 
the ability to directly access law enforcement records while 
performing stops.
    Further, while Amtrak has submitted security plans to the 
government for review and currently has been included in recent 
rail security funding legislation, which is S. 2273, which was 
reported out of the Senate Commerce Committee today, the lack 
of a consistent and ongoing source of security-related funding 
will be an issue into the future. It is an immediate need and 
should be addressed through legislation.
    I thank you for this opportunity to provide testimony to 
the Committee.
    Senator Sessions. Thank you.
    [The prepared statement of Mr. Frazier appears as a 
submission for the record.]
    Senator Sessions. Mr. Jenkins, we are glad to have you with 
us.

    STATEMENT OF BRIAN MICHAEL JENKINS, DIRECTOR, NATIONAL 
     TRANSPORTATION SECURITY CENTER, MINETA TRANSPORTATION 
                INSTITUTE, SAN JOSE, CALIFORNIA

    Mr. Jenkins. Thank you very much, Mr. Chairman, Senator 
Biden. I have provided the Committee with written testimony. 
Let me just highlight six points of that testimony very, very 
quickly so that we can proceed to the questions and answers; we 
may even have some argument on some of these issues, but 
perhaps not on others.
    First of all, with regard to the threat, there is no 
question that the threat is real. Trains and buses have become 
highly attractive targets to terrorists, particularly 
terrorists bent upon high body counts. If we look at it from 
the terrorist perspective--for terrorists are determined to 
kill in quantity, willing to kill indiscriminately--trains, 
subways, and buses are ideal targets. They offer the terrorists 
ease of access, ease of escape, crowds. And contained 
environments in train coaches and buses and tunnels are 
especially vulnerable to both conventional explosives and 
unconventional weapons.
    We also know that terrorist attacks on public 
transportation systems cause great disruption and alarm. These 
are the traditional objectives of terrorists. And in the last 
two-and-a-half years, since 9/11, we have not only seen the 
attack in Madrid, but we know now about a number of plots that 
were thwarted or discovered in other places, in Singapore, in 
Italy, in the Philippines. So this certainly is part of al 
Qaeda and like-minded Jihadists' play book. It is in there. 
They have done it. They have tried to do it elsewhere. The 
threat is real.
    The second point is that, having said that, we know that we 
can't protect surface transportation the same way that we 
protect commercial aviation. It now takes 60,000 screeners, 
approximately, to check two million passengers who fly from 
U.S. airports daily. An equivalent nationwide screening system 
for the approximately--I believe, Senator Sessions, you 
mentioned--32 million passengers a day who board trains, light 
rail, commuter trains, subways, and buses in this country would 
require hundreds of thousands of screeners and would cost tens 
of billions of dollars. The delays would be enormous, the cost 
prohibitive. Public transportation would effectively be shut 
down.
    And we also have to keep in mind that any new security 
measures should provide a net security benefit, that is, not 
merely displace the risk toward other equally vulnerable 
targets. We know that keeping terrorists off airliners provides 
a net security benefit. As terrorists demonstrated on 9/11, a 
hijacked airliner can be turned into a missile that kills 
thousands.
    Senator Biden, you have outlined some scenarios that can 
get up to significant casualty levels, and I think what we have 
to do is address those individually and see what measures we 
can take realistically--apart from, say, screening, every 
single passenger--that will enable us to thwart some of those 
frightening scenarios.
    Senator Biden. I am not suggesting screening everyone.
    Mr. Jenkins. No, I understand that, and I think there may 
be some procedures as well as some technology around some of 
the tunnels and other vulnerable infrastructure that we can 
deploy to at least bring the threat down to, let us say, the 
level that we face in other public places, whether they are 
supermarkets, shopping malls, or even long lines of people 
waiting to go through security measures.
    We also have to keep in mind that, given the nature of the 
threat we face today, whatever steps we take now are likely to 
become permanent, and therefore we have to make sure that any 
new security measures are not only effective but also 
sustainable and efficient. Now, that doesn't mean that nothing 
can be done to protect surface transportation. In fact, we can 
do a number of things, and indeed, analysis of previous 
terrorist attacks and campaigns against mass transit systems 
have provided a growing catalog of lessons learned and some 
best practices.
    Chief Frazier has already mentioned some of them which are 
practical measures that make sense. Visible security patrols 
and visible staff have a deterrent effect. Closed-circuit 
television coverage has been used extensively in Europe, and 
with good results. Enlisting employees and the public in 
surveillance can also be very effective, although the public 
cannot be expected to assist unless their communications with 
the authorities are facilitated and calls bring a rapid, 
visible response. Otherwise, we simply have exhortation, and it 
doesn't work.
    New technology is giving us the ability to detect and 
diagnose incidents more effectively, to detect explosives, 
chemicals, biological substances. A lot more can be done 
through the design of vehicles and facilities to eliminate 
hiding places, facilitate surveillance, and reduce casualties.
    Another option is red-teaming, that is, planning actual 
terrorist attacks--and Senator Biden, you were giving a pretty 
good example of red-teaming in some of your introductory 
comments--that look at how one would actually plan some of 
these scenarios, do that in great detail, assess the 
vulnerability, and then use the assessment as a basis for 
deploying security measures that can thwart those kinds of 
attacks.
    Exercises and drills involving transportation staff, 
police, and other emergency responders are crucial. This was 
demonstrated dramatically on September 11, when not only the 
200,000-and-some people who are underground in New York on the 
subway at any given moment on a busy day, but also 60,000 
passengers and 300 employees in the stations immediately below 
the World Trade Center, were safely evacuated, every one of 
them, and that was because of having good practices in place.
    Now, these are good ideas, but this brings me to my fourth 
point. There is no single best way to implement them. Surface 
transportation is not a single national system. We are obliged 
to treat security in airports in the same way at all 430 
airports in the country. But surface transportation is a 
complex quilt of networks. They vary in size, in mode, in means 
of providing security; and geography does make a difference. 
The threat in Duluth is not the same as the threat in the 
District of Columbia, so we have to allow some flexibility in 
how we apply these measures.
    I think that a best practices approach is the most 
effective model. In a best practices approach, the Federal 
Government supports the research, subsidizes the deployment of 
the technology, provides intelligence, which is critical, 
augments security when the threat warrants, and assists with 
emergency response and investigation in the case of a terrorist 
attack.
    The new legislation that you have offered, Senator 
Sessions, and the proposals of Senators Biden, Specter, and 
Hatch, by expanding and filling in some of the gaps in the 
criminal law--whatever it does for the prosecution side, and I 
am not an attorney, I am not a prosecutor--is useful in that it 
expands and clarifies the criminal law, it facilitates the 
investigations and intelligence collection.
    I am not always sure that the kind of adversaries we face 
today are deterred by the death penalty, because we are dealing 
with some people in some cases who are willing to give up their 
lives. But I think that facilitating the intelligence 
collection by opening up some space here in the criminal law is 
a very useful contribution.
    My fifth point is that I think we have to look at this 
strategically. Since the beginning of the republic, security 
considerations have been major factors in the development of 
the nation's transportation system, from the building of the 
first national road to the creation of the Interstate Highway 
System. So I think we have to think about a broad national 
transportation security strategy.
    Now, this involves more than simply mandating increased 
security. It makes security a criterion in the design of new 
transportation facilities, and Senator Biden, you are quite 
right in pointing out that we are dealing with infrastructure 
that was built in the last century and, in some cases, the 
century before that. A transportation security strategy may 
encourage the construction of some new transportation 
infrastructure that is inherently more robust, or that reduces 
some of the obvious current vulnerabilities, or that has built-
in redundancies to reduce disruption.
    One thing we have to be careful of is that the transfer of 
the Transportation Security Agency from the Department of 
Transportation to the Department of Homeland Security, while 
that makes sense in terms of consolidating security 
responsibilities, should not lead to an exclusive reliance on 
regulation and enforcement as the only ways to mitigate risk. 
We have to think about this really as a national strategy.
    That brings me to my final observation. Certainly, we must 
do all we can to enhance the ability of our intelligence 
efforts and law enforcement officials to uncover and thwart 
terrorist plots, increase security around vulnerable targets, 
and improve our ability to respond to attacks when they occur. 
At the same time, however, we must be realistic about the 
acceptance of risk. We cannot allow fear to become the 
framework of American governance, and we should be wary of 
slouching toward a security state in which protected 
perimeters, gates, and guards dominate the landscape and 
irrevocably alter our lives.
    Even this august body cannot legislate an end to terrorism. 
It cannot eliminate all the vulnerabilities from an open 
society, and it cannot transfer all risks from its citizens to 
its government, nor should it try. Ultimately, in my view, the 
strength of this Nation is going to depend not on the thickness 
of the concrete walls or the severity of the criminal code, but 
on the courage, self-reliance, and inherent creativity of its 
free citizens. Thank you.
    Senator Sessions. Thank you. That was very insightful. We 
appreciate those comments.
    [The prepared statement of Mr. Jenkins appears as a 
submission for the record.]
    Senator Sessions. Chief, as I was thinking about your 
situation, I remembered, I believe Wednesday, I walked down to 
Union Station to get a bite to eat and they were evacuating the 
station. Was that something you did and is that something that 
happens around--I think Paris is having an evacuation today. 
How do you go about making those decisions and how often does 
that occur?
    Chief Frazier. Mr. Chairman, Wednesday's incident was an 
actual security matter. What happened was, and I was there, 
what happened was a backpack, a blue knapsack was left by one 
of the restaurants in the main area of Union Station and it was 
found by a security officer, who reported it to us. We went and 
checked, and basically, it had an odor. The odor smelled like 
fuel.
    Based on our procedures that are in place for emergency 
evacuation, we made notice, formed up the Incident Command 
Center, and began investigating this matter. We roped off 300 
yards to start, or 300 feet to start based on the size of the 
package, and ultimately received help upon the arrival of the 
fire department and police authorities to assist us.
    Back last June, we had a multi-agency drill at Union 
Station here in Washington and we had over 120 participants 
from all branches of government, State, local, and Federal, and 
put together a solid framework--this is a TSA-sponsored drill--
put together a solid framework to improve on what we already 
had.
    So ultimately, we did get the package inspected. It turned 
out that lighter fluid had been in there, that it had spilled, 
and that that was what created the foul incendiary type of 
smell.
    How often does it happen? Suspicious packages are found on 
Amtrak, things that are called to our attention by employees, 
things that are called to our attention by passengers quite 
frequently. Three or four, maybe five times a day somewhere on 
the system, we receive a notification that something is being 
checked out somewhere, either at a station or on board a train 
or on our tracks.
    Senator Sessions. I think Mr. Jenkins mentioned technology. 
I think I will ask you first about things like surveillance 
cameras. Are you satisfied you have enough of that? Would you 
like to expand your capability there? That is just a pretty 
decent preventive tool, certainly a good investigative tool.
    Chief Frazier. The level of sophistication of what we have 
right now goes, for example, perhaps back to 1974. We may have 
some camera system in some place that is that old. It may be 
some stuff we were able to put in in Philadelphia back in the 
mid-1990s that we are looking to upgrade at this point in terms 
of CCTV.
    We believe that it is a good deterrent, and in fact, we are 
working with TSA on a pilot in Philadelphia that will deal with 
the latest technology associated with CCTV and perhaps having 
an ability to have that technology work to identify things that 
are unusual so that it can help our operators to review the 
information and process it.
    Is what we have adequate at this point? It is not. We need 
to, as Mr. Jenkins has indicated, probably have some 
improvements in terms of CCTV and, of course, in terms of other 
technologies that are available today.
    Senator Sessions. Mr. Jenkins, what would you say about 
technology? What are some of the things that come to mind? I 
know you haven't issued an official report on these things, but 
you have had some--I am sure you have thought about it, some 
things that we maybe could do to go beyond. This is a law 
enforcement Judiciary hearing, but what could we do to go 
beyond that to the Transportation Department or some others 
might consider, and private businesses might consider to make 
their places of business more safe?
    Mr. Jenkins. In 2002, Chief Frazier and I served together 
on a transportation panel that looked specifically at the issue 
of applications of technology to countering terrorism. I think 
one of the interesting findings of that panel was that while 
there are obviously some areas that we would wish to develop 
that we are still just pushing right now--in other words, 
chemical detection--we are making great progress. The detection 
of chemical substances is still technology on the move. We have 
some experimental systems that have been deployed.
    Detection of biological pathogens is a bit further behind. 
It is a more complicated technological task, but it is also on 
the move. We have made great progress in explosives detection, 
but there, we still deal with the issue that you have to get 
fairly close to a suspicions object to be able to pick it up. 
You have to be able to actually run it through a machine or 
swab it with a piece of gauze to make detection work.
    Closed-circuit TV is now on the shelf. To say that we have 
camera systems in place that were put there in 1974, I mean, 
that is an archaeological dig in terms of the movement of 
technology on this stuff.
    Senator Biden. It is like telling my daughter just got out 
of college and is working in Philadelphia in the city, that I 
am going to buy her a black-and-white TV.
    Mr. Jenkins. It is. I mean, the cameras, fortunately, have 
not only improved in quality in terms of their abilities to do 
things--pan, zoom, tilt--but there is color now, and the 
resolution is sufficient to qualify for evidence in trial as 
opposed to showing blurry little black-and-white images. And 
fortunately, also, the costs have come down.
    Another interesting area is bringing together a closed-
circuit TV system, which they have done very effectively, for 
example, in the United Kingdom. To give you an idea of the 
comparison of our system to theirs, for British Rail in England 
and the London Underground, according to the last figures I 
saw, they were installing 5,000 cameras. Now, that is intensive 
coverage.
    To be able to take those cameras the next step and make 
them smart cameras, we have learned that with software, in 
fact, the mechanical surveillance system can be taught to 
recognize normal patterns and to pick out anomalies. That is an 
area where, in fact, we can take technology further.
    In terms of tunnels, which came up several times in our 
discussion, we are looking at ventilation systems. To be able 
to rapidly diagnose when something is going wrong is one thing. 
But, what are you going to do about it? We need to have systems 
that enable us to vent tunnels, to remove smoke from tunnels. 
We know from experience in Korea with the recent accidental 
incident, or from tunnels in Europe, that smoke is the killer. 
So can we get smoke out of tunnels? Can we get chemical 
substances out of tunnels?
    In some cases, we don't want to vent into the street. I 
mean, if we have a poison gas, just popping it through 
ventilators onto pedestrians isn't necessarily going to be an 
improvement. So that is another area where we can make great 
strides.
    And then, finally, there is the design of the stations and 
vehicles themselves. Eliminating things that turn to shrapnel 
in explosions or that produce toxic fumes when burning, 
designing vehicles that explode in such a fashion that they 
allow the explosives to vent and reduce the internal pressures, 
those are some other things we can do.
    The interesting finding--and correct me if I am wrong in 
this--is that we had the technology. We knew what the 
technology was. The problem was institutional barriers. Cost 
was part of it, but also a lot of institutional barriers 
prevented us from an effective deployment of this technology; 
and beyond that, we still have a tendency, even in airport 
security, to deploy a machine and attach a human being to it 
without much thought about the human performance and the human 
factors. So it is not just a question of deploying technology. 
We should really be thinking about these things in a much more 
systematic way than we have done before.
    Senator Sessions. Thank you. Very good.
    Senator Biden?
    Senator Biden. Thank you very much. And again, Mr. 
Chairman, I can't tell you how much I appreciate your holding 
this hearing.
    Brian, you may remember, you were here on October 16, back 
in the bad old days when I was Chairman of this Committee, 
October 16, 2001, just a little over six weeks, fie, six weeks 
after 9/11. I reread the testimony. We haven't done anything 
since this testimony.
    And Chief, you are a good soldier, but you are not even 
close to being able to protect. I have made over 6,800 round 
trips on Amtrak from Wilmington, Delaware, to Washington, D.C. 
in 32 years. I am no more safe today than I was before, not 
because of your not doing your job, but because, in fact, you 
have probably gotten a lot worse.
    Quite frankly, I am going to say something outrageous. I 
know as much about your institution and you guys as you do. I 
know more of your guys by name than you do, I bet. Literally, 
not figuratively.
    Chief Frazier. I believe that is true.
    Senator Biden. If you think I am joking, I am not joking.
    Chief Frazier. I believe that is true.
    Senator Biden. They have been my guys and women. But let me 
tell you something. You said here, for example, and I think it 
is important people know, you have 12 canine teams. How long 
have you had 12 canine teams?
    Chief Frazier. The explosive teams were put on in 19--
excuse me, in 2001.
    Senator Biden. In 2001. And all 12?
    Chief Frazier. Yes.
    Senator Biden. How many total number of dogs do you have?
    Chief Frazier. Seventeen.
    Senator Biden. Seventeen dogs. Now, the idea that--here is 
my problem, Mr. Jenkins. We have a tendency here to make 
perfect the enemy of the good. You are a bona fide terrorism 
expert. Everyone I have spoken to in this country, in Germany, 
in France, in England, makes several things clear. If we are 
dealing with, for lack of a better phrase, institutionalized 
terror, the al Qaedas of the world, they seek, particularly al 
Qaeda, seek maximum effect. They want to make the news 
broadcast as horrific as they can possibly make it. Terror is 
called terror as opposed to war because it is designed to 
terrorize civilian populations.
    Now, what I don't understand is you know and I know and 
Chief, you know, that there are high-value targets that are 
very high value. As I said, one Metroliner and one Amfleet full 
passing each other in a tunnel is more than five full 747s.
    Now, here is my problem. Particularly at time of high 
alert, Brian, why does it not make sense for us to install into 
a central com remote control television cameras at the entrance 
and midway and partially through every major tunnel in the 
Northeast corridor? What is so hard about that? I could get 
some kid who does the computers in my office to wire that, not 
figuratively, literally.
    Why is it when we go on orange alert, why is it we don't 
have enough cops for you guys to station, actually 24 hours a 
day, one guard in front of every tunnel, either end, just to 
guard? You are not going to stop a train, but you are going to 
stop someone moving in, dropping a bomb in the middle of it, a 
guard. You don't need rocket science to deal with some of this 
stuff.
    Remember you used to go through the old Baltimore tunnel 
and in the middle of the tunnel, you had a guy sitting there in 
a booth? Do you remember that? There was a reason for that. 
That was for security. An accident happens in the middle of the 
tunnel. This is 1940s technology. I am not even asking us to 
get up to the 21st century.
    There are some things I just can't fathom. How many--if we 
took and hired another 500 police officers, the total cost of 
that would be infinitesimal compared to the cost of security 
nationwide, and just made sure that every single major tunnel 
had guards in front of it. It wouldn't stop something in a 
train.
    But we have another problem. These guys are pretty 
inventive. It doesn't take much to slide down the bank right 
next to the Baltimore tunnel and walk in, walk in. You can 
carry a 100-pound bomb down there. You just walk it in the 
middle of the tunnel, a remote control detonator.
    So what I am trying to get at, Brian, what is this 
institutional thing? It is almost like if we cannot do it all, 
we do nothing. There are more canine patrols in the City of 
Wilmington, Delaware, than you have on all of Amtrak. We are 
not going to get to make sure we have every single passenger 
screened. That is ridiculous, okay.
    You have a total of how many Metroliners today in the 
Northeast corridor, and I picked the Northeast not because it 
is more important, it is just the most passengers. You can blow 
up the most people. If we had a canine cop on every train, 
nothing else, we are talking about putting--which I support and 
you support U.S. Marshals on as many aircraft as we can get--
one canine patrol on every Metroliner, or every crowded train--
you wouldn't have to do them all.
    Now, will that guarantee that dog will sniff out every 
single solitary explosive on there? No. Is it a deterrent? Yes. 
Does it increase more than marginally the possibility we get 
someone? Remember, these guys didn't use chemical weapons, 
Brian. They took a computer, they took the Internet, they took 
an aircraft, and they took fuel in the belly of an aircraft. 
What do we have to do to learn? How dumb are we? What is the 
problem?
    Mr. Jenkins. When I say institutional barriers, I don't 
mean that the institution can't figure it out or that somebody 
is demanding the perfect solution as a barrier against doing 
some sensible things. The institutional barriers tend to 
revolve around jurisdictional issues--who is going to be in 
charge, who is going to do this.
    Technologically, you are absolutely right. I mean, look, we 
strung fiber optics through these tunnels. We have rigged these 
tunnels so that your cell phones work in the tunnels. We 
managed to do that.
    Senator Biden. Yes.
    Mr. Jenkins. It is no more difficult to string TV cameras 
through the tunnels, and we should be doing that. That is not 
an insurmountable task.
    As for explosives detection using canine crews, I might 
differ with you there, because I would say that if I had an 
increased number of canines for explosives detection, I would 
probably be wanting to deploy them more effectively in the 
stations rather than on the trains.
    Senator Biden. You are the expert. The only point I am 
trying to make is that some of the things we could do--for 
example, I say to you, Chief, you indicated that this is 
really--you acknowledge it is fundamentally different than 
airports. In some ways, yes. In other places, wrong.
    We are now having proposals coming from the Federal 
Aviation outfit saying that maybe we should not only have 
detection when you walk in and put your bag on the plane or 
when you walk in and you go through the detector to get on the 
plane. There are proposals now, and you know better than I do, 
Brian, to have detection before you can walk into the airport. 
I promise you, Chief, you know it, more people in Grand Central 
today than in any airport in the United States of America. 
There are more people in Philadelphia in that city right now in 
one place in that station at rush hour than there are--I don't 
mean in the trains, I mean in the station--than there are at 
the Philadelphia airport.
    If the Philadelphia airport were considering whether or 
not, before you can walk into the door--we haven't done it, but 
that is a consideration--before you walk into the door, we are 
going to check it out, I think it is an institutional bias 
against rail. If you think I am joking, I am not.
    We think of rail like it is somehow another century. 
Therefore, it is not much of--all you have got to do is watch 
one of these science fiction movies. They are ridiculous 
sounding. Just take one of those new trains at 120 miles an 
hour and hit it from Carrollton. What have you got? Man, you 
have got yourself a science fiction movie that is not very hard 
to do.
    Now, I really have two questions and then I will stop. To 
the best of my knowledge, and I don't want to go through all of 
what we don't have, I don't want to advertise too much here, 
but to the best of my knowledge, unlike airlines, we do not 
have extensive security around switching. We don't have 
extensive security around access to the command and control 
terminals, where you have got guys sitting there making sure 
more than one train is not on one track. We don't have any 
serious security like we do for the air traffic controllers' 
tower. We don't have that for the similar towers that exist--
they are not towers now--for our rail system, East Coast, West 
Coast, South, North.
    And, to the best of my knowledge, basic things like you 
have 350 police officers and you have them working overtime. By 
the way, I might add parenthetically, more drugs are 
transported on our trains heading up the Northeast corridor 
than all of I-95. Forget the rest. But that is another 
question.
    So here is what I want to know. If you had to, if I said to 
you, Brian, this may be unfair, but you guys, and you, Chief, 
you indicated you were on a task force already. What are the 
most, and you can submit it in writing if you don't want to do 
it now, what are the most immediate technologically doable 
security measures that you would take if I said to you, you 
have a carte blanche, regardless of the cost, but you have to 
employ these security measures. They have to be able to be 
employed within the next 6 months. That is all you have got, 6 
months. What are the things that you prioritize and do?
    The good news is, the bill that I introduced with Senator 
Hollings and Carper and others passed out of the Commerce 
Committee today, Chief, and I have never done this before, and 
I want to thank John McCain for keeping his commitment. It 
passed out with 14 votes, unanimously. It is $1,093,000,000 for 
rail security. It is $5 million to do a vulnerability 
assessment of passenger and freight rail.
    The second section where we are talking about spending 
money, it provides right away $570 million for the New York 
tunnels, $57 millon in the same period for the Baltimore and 
Potomac tunnels, $40 million for the D.C. tunnels, and $3 
million included for primary design for a new tunnel under the 
Baltimore Harbor.
    It also provides $500,000 to assist families who are 
victims of rail accidents. It provides $62 million for 
improvements in train security, station security, employment of 
additional police and security officers, so maybe help is on 
the way, Chief.
    I have written a letter to the Majority Leader a while ago, 
and I wrote it again, saying I would ask that in light of what 
we all now know and can't deny, that immediately upon us coming 
back from the recess, we have a freestanding vote. For 2 years, 
Brian, I have been unable to get a vote. Two years I have been 
unable to get a vote on rail security.
    So I am going to make it clear. We have a chance to put in 
motion significant improvements in rail security. I don't want 
to be the guy a year from now standing on the floor when we 
have our own Madrid and say, hey, man, we didn't do anything. 
So I want everybody on notice. There is zero excuse not to 
bring this bill up and pass it in a day, and I am prepared to 
debate anybody on the merits of it at all. I will lay you 
eight-to-five when it comes up for a vote, it will pass 98-2. I 
don't even know who the two no votes are.
    So you may have the ability to do exactly what I am asking 
you. What do you do? What are your highest priorities 
immediately relative to security that isn't rocket science?
    Chief Frazier. Perhaps, Senator, I might start by saying 
that that bill, we had quite a bit of opportunity to 
participate in the drafting of that bill and I certainly 
appreciate your sponsorship of it. I am a little bit reluctant 
in terms of addressing financial issues here. Frankly--
    Senator Biden. I am not asking for numbers. I am just 
saying--I don't mean dollars. If you had a wish list, what do 
you want? Do you want 300 more cops? Do you want cameras? What 
are the immediate things, if tomorrow you had the money, not 
the dollar number, if you had the money, what would you do?
    Chief Frazier. Well--
    Senator Biden. You have been thinking about this for a 
while. You have had panels. You have studied it. You have had 
recommendations. God love the former Governor of Pennsylvania 
who is now the Homeland Security Advisor. He keeps telling me 
he is concerned about it. I keep saying, tell me something. Say 
something. Step up to the ball. What do you want?
    Chief Frazier. Senator, I have to just comment a little bit 
here about the truth of the situation, and that is as it 
relates for Amtrak itself. Amtrak itself is struggling for 
financial stability.
    Senator Biden. Tell me about it. I am the guy that gets 
your money every year. Forget that. I don't want to know about 
that. I am asking you a different question. What do you do if 
you had the money? What is your highest priority now security-
wise? What do you need most?
    Chief Frazier. All right. What we want to do, as is 
indicated in that security investment plan that we put forward, 
is to take care of these stations, is our number one priority. 
You have mentioned Grand Central. Well, we have Penn Station in 
New York where there are over--
    Senator Biden. I meant to say Penn Station. That is bigger.
    Chief Frazier. There are over 500,000, 600,000 people a day 
in that multi-modal facility. We also have Washington, D.C. We 
also have Chicago and Philadelphia that we have identified as 
our priority majority stations where we need to place security 
measures in.
    We want to add police to those stations. We want to add 
explosives detection capability. We want to put more dogs into 
those stations. We want to increase the numbers of radiological 
pagers that we have that are available to us. We want to 
continue to work with the first responders in the communities 
where those stations are located to try and improve how we are 
doing our business and to mitigate, if we cannot stop the 
problem from happening in the first place, to mitigate the 
losses that will result.
    Our next area is tunnels. Our next area is to improve the 
security of tunnels through surveillance equipment, through the 
deployment of additional fence. Right now, based on Amtrak's 
own capital dollars, it is extending fence in the Baltimore 
area to deal with the very issue you were talking about, high-
security fence that I observed when I went over to the United 
Kingdom and some help from our friends over there in terms of 
what we should do from that standpoint.
    We want to improve the security of our trains, just as you 
have mentioned. I mean, at this point, it would be a sheer 
luxury to think in terms of any equivalent of a sky marshal on 
the Amtrak system. We just don't have adequate ability to do 
that.
    So at this point, technology, yes. We want to understand 
the blast vulnerability of our stations and what we can do to 
improve their physical ability to withstand a problem and to 
protect the passengers that use them--
    Senator Biden. Chief, our time is running out. I want to 
tell you, I thank you very much, and I know you know more--the 
only point I was trying to make in asking you that question is 
I don't think there is a single person sitting in this audience 
or watching this on television who would say that any use 
suggested wasn't--that makes sense. That makes sense. And you 
didn't sit here and say, what I need is new 800,000-pound gates 
in front of tunnels that open automatically. I don't need new--
you are talking about real basic, honest-to-God things, that 
there is not a serious business in this country doesn't have.
    That is the only point in my making you go through that a 
little bit. It is, I think, close to criminal that two-and-a-
half years later, almost 3 years later, after the warnings we 
have received from our own intelligence community, after what 
we have recently seen in Madrid, that we are still even 
debating these basic things. We are talking about a lot of 
money, but in a $2-plus trillion budget, $1 billion over 5 
years, wow. We gave the airlines $15 billion in three weeks.
    Can I ask you the same question in two minutes to answer 
what the highest priority is?
    Mr. Jenkins. I will agree with the Chief and with you that 
the list of things that can be done is a very pragmatic, 
sensible list. There are no secrets in that. There is a 
checklist of items contained in the overview that was prepared 
at the request of Secretary Mineta right after 9/11 that is as 
valid today as it was two-and-a-half years ago.
    I will be happy to also come back to provide you with a 
more thoughtful answer than I can give in two minutes here, but 
I would endorse all of those things. I mean, look, we want to 
look at major stations, major congregations of people. We want 
to look at tunnels. That is a critical vulnerability. We want 
to look at rail conveyance of hazardous materials. There are 
some obvious areas that we can look at.
    At the same time we are looking at those measures, I would 
say that you could start a red-team to take some of those 
scenarios that you touched upon in the beginning and make sure 
that as we spend this money, we are going to cover some of the 
kinds of things that adversaries may think of.
    The final comment I will make, however, is the following. 
It is really a question for us as a society. To get to where we 
are in aviation security took us 32 years. What we have now 
began with the first rule, created 32 years ago, which was that 
we would have universal passenger screening. Everything that we 
have done since, in terms of explosives detection, other forms 
of detection, other procedures that we go through, each one of 
those relates back to an individual tragedy. We have had 
hijackings. We have had planes sabotaged. We have had all sorts 
of catastrophes.
    Now, the question for us is, do we have to go through 32 
years of catastrophes on rail? Do we need a whole string of 
Madrids and Paris and London bombings in order to begin to take 
the security measures, or can we be thoughtful and realize that 
this is a threat now--and it is--and compress the amount of 
time so that we can get those measures out there in months or a 
couple of years as opposed to waiting decades?
    Senator Sessions. Thank you very much, and congratulations 
on that move in the Commerce Committee. That is a big piece of 
legislation. I know it is something you care about.
    Senator Hatch, Chairman of this Committee, and Ranking 
Member Patrick Leahy have submitted statements for the record. 
They will be made a part of the record, and we will keep the 
record open for a week for further questions.
    Thank you for an excellent discussion, gentlemen. We are 
adjourned.
    [Whereupon, at 4:42 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.] 
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