[Senate Hearing 108-137]
[From the U.S. Government Publishing Office]
S. Hrg. 108-137
THE WAR AGAINST TERRORISM: WORKING TOGETHER TO PROTECT AMERICA
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HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
MARCH 4, 2003
__________
Serial No. J-108-3
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
89-325 wASHINGTON : 2003
____________________________________________________________________________
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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
Makan Delrahim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 40
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1
prepared statement........................................... 63
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin,
prepared statement............................................. 66
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 18
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 3
prepared statement........................................... 67
WITNESSES
Ashcroft, John D., Attorney General, Department of Justice,
Washington, D.C................................................ 6
Mueller, Robert S., III, Director, Federal Bureau of
Investigation, Department of Justice, Washington, D.C.......... 13
Ridge, Thomas J., Secretary, Department of Homeland Security,
Washington, D.C................................................ 11
SUBMISSIONS FOR THE RECORD
Ashcroft, John D., Attorney General, Department of Justice,
Washington, D.C., prepared statement........................... 50
Mueller, Robert S., III, Director, Federal Bureau of
Investigation, Department of Justice, Washington, D.C.,
prepared statement............................................. 72
Ridge, Thomas J., Secretary, Department of Homeland Security,
Washington, D.C., prepared statement........................... 82
THE WAR AGAINST TERRORISM: WORKING TOGETHER TO PROTECT AMERICA
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TUESDAY, MARCH 4, 2003
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:48 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, Chairman of the Committee, presiding.
Present: Senators Hatch, Grassley, Specter, Kyl, DeWine,
Sessions, Graham, Craig, Chambliss, Leahy, Kennedy, Biden,
Kohl, Feinstein, Feingold, Schumer, and Durbin.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. Good morning, and welcome to the
Committee's important hearing examining the war against
terrorism and the coordinated efforts of the Department of
Justice and the Department of Homeland Security to protect
America. I want to welcome all three of our distinguished
witnesses who are here before us today. It is indeed an honor
to have before the committee Attorney General John Ashcroft,
Secretary Tom Ridge, and Federal Bureau of Investigation
Director Bob Mueller. I understand that each of you is
extremely busy, and I want to express my appreciation for your
taking time to appear before us today.
I also want to take a moment to acknowledge Secretary
Ridge's appearance since it is his first occasion to testify
before this committee since his confirmation at Secretary of
the new Department of Homeland Security. So I am happy and we
are all happy to see you here before the committee, Tom.
Today's hearing will focus on the war against terrorism and
coordinator efforts to disrupt and disable terrorist
organizations and to protect our country from terrorist
attacks. I am committed to legitimate oversight to examine
critical issues related to our country's war against terrorism.
Senators Leahy, Grassley, and Specter issued an oversight
report last week on issues surrounding the Foreign Intelligence
Surveillance Act, and I have responded to the Senators
providing certain observations on that report. It is my hope
that in the coming months that Director Mueller can return
before the committee to address significant oversight issues
surrounding FISA, and we will hold that hearing, and I am sure
that the Director will return. I believe there are important
issues relating to implementation of the November 18, 2002,
Foreign Intelligence Review Court's decision, as well as the
internal Justice Department and FBI reforms, which this
committee should address in greater detail in a later oversight
hearing. So we intend to go into these matters even though they
probably won't be gone into in as much detail here today,
although it depends on our colleagues.
We all recognize that these are challenges times for our
country, and that the American public, I believe, appreciates
your leadership, your commitment, and heroic effort to protect
our country and our people from devastating terrorist attacks.
As we recognize here in Congress and as the American people
should know, every day through your efforts you are saving
American lives. Now, I know that you cannot trumpet each and
every one of your successes without compromising sensitive
intelligence, covert operations, and strategic planning. I was
just in the Intelligence Committee today listening to some of
our leaders in the efforts in counterterrorism. And I am really
pleased with the efforts that have gone on, that are going on,
that in many ways the public will never know, but real efforts
to try and help protect our country and our people.
Your efforts to win this war have borne fruit on many, many
occasions. Just last Saturday, United States law enforcement
and intelligence agents, working together with Pakistani
intelligence agents, captured a significant Al-Qaeda terrorist,
Khalid Shaikh Mohammed, the Al-Qaeda senior lieutenant who
served as the operations manager and alleged mastermind behind
the September 11th attacks, as well as numerous other deadly
attacks against Americans worldwide. This latest success is
indeed significant. It represents a striking example of the
President's and this administration's commitment and efforts in
the global war against terrorism. The apprehension of Khalid
Shaikh Mohammed is just one more success in a string of
successes by you and others in the law enforcement and
intelligence communities aimed at disrupting and eliminating
Al-Qaeda from the face of this earth. So I want to commend each
of you, as well as the many hard-working agents who are
fighting this global war, for this latest accomplishment.
Now, even with this recent accomplishment, however, I
recognize that there is more to be done. Now, it goes without
saying that Americans are experiencing very trying and anxious
times. It has been almost a year and a half since terrorists
attacked our country, killing almost 3,000 people. The enemy is
unlike any that we have faced before: deadly, well-financed
international terrorists whose tentacles reach into every
corner of the globe and who are ready to give their lives in
order to destroy other people's lives. Make no mistake: the
threat to our country continues today. Terrorist organizations
exist within our borders and throughout the world. They are
fanatics committed to the destruction of America and will do
anything to harm our country and our people.
Terrorists will use any means to defeat America. Their
means to their gruesome ends will evolve. And our ability to
respond must evolve, and we must embrace new tools and new
approaches. We must ensure that law enforcement, intelligence,
and homeland security agencies are given the tools and the
resources needed to protect our country.
So I look forward to hearing from each of you and your
assessments of our country's global war against terrorism, your
efforts to implement initiatives and programs needed to protect
our country, and your ideas of areas where more is needed to
address current needs. I do in the hope of continuing our
bipartisan commitment to enacting measures to win the war
against terrorism and make our country safe. Our commitment to
working together hopefully is unwavering, and I personally will
do whatever is necessary to see that we do work together. The
American people expect nothing less from us, and I intend to
see that we do what has to be done.
So I want to thank you, and I am going to turn to the
ranking member, Senator Leahy, for his opening statement, and
then we will turn to your statements starting with Attorney
General Ashcroft.
Senator Schumer. Mr. Chairman, just before Senator Leahy, I
was glad to hear that Mr. Mueller will come back for a
separating hearing. But I would ask that--this is such an
important issue. We are creating a whole new agency. And we
have 3 hours here for all three witnesses together. Many of us
won't even get to ask any questions. If we could make time, I
think it is important enough to have each witness come
individually and give us some time, because I have so many
questions. I know every one of my colleagues does on both sides
of the aisle. It seems that we are not giving this the
attention time--and I am sure the witnesses would be willing,
if we accommodated their schedules, to come back individually.
Chairman Hatch. Well, we will certainly take that under
consideration. Let me tell you, 3 hours from these three
gentlemen is like the world up here. I think we will have time
for everybody to ask questions. We are going to have 7-minute
rounds, and we will see how far we go. But certainly I have
asked the FBI Director, Mr. Mueller, to come back at a later
time when we can discuss the FISA issues, which are among the
most important issues that this committee is concerned about.
But we will certainly take that under consideration.
Senator Schumer. Thank you, Mr. Chairman.
Chairman Hatch. Let me just say I will put the rest of my
remarks, my more extensive remarks in the record.
[The prepared statement of Senator Hatch appears as a
submission for the record.]
Chairman Hatch. Senator Leahy?
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Mr. Chairman, I am glad we are having the
hearing. I do agree with Senator Schumer. We are going to want
more from these gentlemen, and I know it is hard to accommodate
schedules, but it is doable. And we should do it. We find how
helpful this can be. As you know, last Congress we started the
first comprehensive oversight of the FBI that we have had in
decades. For years and years, long before Director Mueller,
Director after Director felt that they did not have time. We
found the time, and I think everybody benefited by it.
I also want to applaud the CIA, the FBI, the other
dedicated field operatives in Pakistan. I think all of us were
relieved to see the capture of Khalid Shaikh Mohammed, the
suspected mastermind behind the 9/11 attacks. The headlines are
great. We can all announce it. It is the operatives, as all
three of you know, in the field that are putting their lives on
the line to make this work, and I wish there was a way that we
could thank each one of them personally. Obviously, they don't
want us to thank them by name or who they are, but it is
wonderful work.
Our oversight duties are at the core of our constitutional
responsibilities to the American people. It is sometimes said
that in war and in emergencies, democracy becomes the first
casualty. Our Constitution, with its separation of powers, was
designed to prevent that. The American people don't want to
just feel safer. They want to be safer. And congressional
oversight and the checks and balance can make that possible.
Last week, Chairman Grassley and Chairman Specter and I
released a detailed report based on the oversight that the
Judiciary Committee conducted in the 107th Congress. We found,
in that 2-year effort, a pressing need for further oversight
and reform.
I think Senator Specter and Senator Schumer both suggested
that each of these witnesses appear in separate hearings. I
think that is important. We don't want this just to be a photo
op. We want it to be something that we really come out safer.
I have spoken with Governor Ridge about the question of
first responders when terrorists strike. The first responders
are the first people we turn to. When somebody picks up their
phone and calls 911, it is not going to ring at the desk of any
one of you. It is going to be the local fire department, the
local sheriffs, the local police, who receive the call. As we
saw at the World Trade Center and at the Pentagon, these were
the people that were the first responders. They have been asked
to be the Federal Government's vanguard partners against
terrorism, but it has become largely to this point an unfunded
mandate on their communities and their States. It is
frustrating to them and to those of us in Congress who have
advocated on their behalf to encounter, first, a stone wall of
silence about the administration's intention to honor the
increasingly desperate requests for first-responder funding,
and then we had a constant undercurrent of resistance to the
meager help that we have begun to provide.
I mention this because we can find billions and billions
and billions and billions and billions of dollars to give to
countries around the world if they would just say they will
support us in a war against Iraq. It may well be important. We
have a war here at home, and we ought to be able to find just
as many billions of dollars to help those people, those
Americans, who are fighting it.
In the Appropriations Committee, we passed a bill, which,
incidentally, had administration people watching every single
line of it, yet it came through with a cut of $637 million to
the Office of Domestic Preparedness. Training grants were cut
by $50 million. Exercise grants were slashed by 50 percent.
Spending for firefighters was cut by $150 million. In total,
the bill cut nearly $1 billion in funding for Federal programs
that directly assist first responders.
I am glad to see the President, even though this was
watched carefully by the White House, now says that first
responders have been shortchanged, and I hope that we will get
the money back in. We need money here at home. We need money
for those whom we call upon to be our first responders.
Attorney General Ashcroft, I am glad you are here, because
last month a secret draft bill entitled ``The Domestic Security
Enhancement Act of 2003'' was leaked to the press as a sequel
to the USA PATRIOT Act. Now, this draft, we have asked about
it. We have asked if it was there, and yet it is something that
both Republicans and Democrats read about in the paper first.
None of us saw it. In fact, a member of my staff called the
Department just 5 days--just 5 days--before this bill was
leaked to the press. She was told pointblank there was no bill
in the works. Five days later, we have an 86-page bill, along
with a 33-page sectional analysis. I know they are good down at
the Department of Justice, but neither this administration nor
anybody else could put together a 86-page bill of this
complexity with a 33-page sectional analysis in 5 days.
Somebody lied to a member of my staff. Not you, Mr. Attorney
General, I want to hasten to add. But somebody who reports
directly to you lied to her. And I think that this is not a
good way to do things. If we are going to have such a piece of
legislation and we are going to give it to all the newspapers
first, we ought to at least be willing to tell the oversight
committees that it is in the works.
Attorney General Ashcroft. Mr. Chairman?
Senator Leahy. Could I just finish?
Attorney General Ashcroft. Mr. Chairman? Well, I would be
very happy to respond.
Chairman Hatch. Go ahead.
Attorney General Ashcroft. The charge has been made that
there are individuals in the Justice Department that are lying.
And I want to be sure that I have time to respond to that, and
I don't need to do it now. But I just want to make sure----
Chairman Hatch. Certainly. We will certainly make sure
that----
Senator Leahy. I will venture that that is in my questions.
I will make very clear what I said. I am not suggesting you,
Mr. Attorney General, but when we ask people who are in the
position where they are supposed to know, when they report
directly to you, they tell us there is no such bill, 5 days
later a very complex bill that has taken months to be drafted
is leaked to the press, if they are not telling us an untruth,
boy, they are way out of the loop--way, way out of the loop, in
a position where they should not be.
I think it shows a secretive process in producing this. We
do not know whether we went too far or not far enough in
authorizing new Government powers in the USA PATRIOT Act. It
has been only a year since its passage. The administration has
not responded to questions asked by the Republican chairman of
the House Judiciary Committee, nor by members of this
committee.
But this leaked proposal would go much further in granting
the Government more surveillance powers over American citizens,
while drastically curtailing the ability of Congress, the
courts, and the American people to find out what the Government
is doing.
This is one of the reasons why Congressman Dick Armey and I
joined together to put sunset clauses in parts of the PATRIOT
Act, because we couldn't get answers as to how it was going to
be used.
Whatever this new stealth bill is called, let's not call it
USA PATRIOT II. It is not patriotic when it is done this
secretively. If there is going to be a sequel, let's find out
what it is going to be, and let's make sure we fully debate it.
Good ideas will prevail in such a debate. Bad ideas will be
rejected. That is the American way.
I don't envy any one of you for what you have to do. You
have among the most difficult jobs imaginable. But I would
add--we have seen so many promises made of money for homeland
security here in this country, and then the money doesn't show
up in the budget. Please look at it again. If we can promise
$10 billion to Turkey and tens of billions of dollars to other
countries in the Gulf region to back us on the war, we ought to
be able to find at least a small fraction of that to give to
firefighters and police officers and medical personnel here in
America who have to defend us.
I will put my full statement in the record.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Hatch. If I could just make one comment, the money
was not appropriated until 3 weeks ago. So it is pretty hard to
criticize----
Senator Leahy. What I was saying was the fact that I agreed
with President Bush who said that the appropriation bills that
came out had less money than should be in there. The concern I
have, however, is that the White House scrubbed every single
line of that bill when it was coming out, and then they said--
after there had been so much criticism of adequate money not
being in there, that is when they said there should be more.
Chairman Hatch. Well, that is fine, but I just want to
observe that we had almost 2 years since 9/11 to have
appropriations that would have gotten these people going a lot
faster than they are. But about 3 weeks ago, we finally were
able to get that done. I think we have got to be careful how we
couch some of our comments.
But let's turn to Senator Ashcroft--General Ashcroft, and
then we will turn to Secretary Ridge and then finally Mr.
Mueller.
STATEMENT OF HON. JOHN D. ASHCROFT, ATTORNEY GENERAL,
DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Attorney General Ashcroft. Good morning, Chairman Hatch and
Senator Leahy and members of the Judiciary Committee. I am
honored to have this opportunity to again be with you. The
United States of America is winning the war on terrorism with
unrelenting focus and unprecedented cooperation.
Let me quote Stephen Flatow, the father of a terrorist
victim. I am quoting him. ``When you know the resources of your
Government are committed to right the wrong committed against
your daughter, that instills you with a sense of awe. As a
father, you can't ask for anything more.''
Stephen Flatow's daughter, Alisa, was a 20-year-old
American student killed allegedly by the Palestinian Islamic
Jihad when a terrorist drove a van of explosives into Alisa's
bus.
The resources of the U.S. Government are dedicated to
righting the wrong against Alisa and the thousands of other
American victims of terrorists. Most importantly, we are
focused intensely on preventing such wrongs from destroying
more innocent American lives.
As I testified 8 months ago, America's defense--the defense
of life and liberty--requires a new culture of prevention,
nurtured by cooperation, built on coordination, and rooted in
our constitutional liberties. The excessive constraints imposed
in the late 1970's that erected barriers to cooperation between
Government agencies, that segregated law enforcement and
intelligence gathering, and prohibited information sharing,
those barriers must be replaced systematically.
Our survival and success in this long war on terrorism
demands that we continuously adapt and improve our capabilities
to protect Americans from a fanatical, ruthless enemy. I will
continue to seek the assistance of Congress as we build a
culture of prevention and ensure the resources of our
Government can be dedicated to defending Americans.
Let me share three reasons why the United States is winning
this war and illustrate those points with some examples.
First, the Central Intelligence Agency and the Federal
Bureau of Investigation have set new standards for cooperation
and coordination. The FBI's domestic intelligence operations
are substantially strengthened by the CIA's information
sharing, intelligence analysis, and operational coordination.
For example, the capture of Khalid Shaikh Mohammed by
Pakistani authorities, in coordination with the CIA, is a
severe blow to Al-Qaeda that could destabilize their terrorist
network worldwide. Khalid Shaikh Mohammed, the ``brain,'' is
the Al-Qaeda ``mastermind'' of the September 11th attacks and
Osama bin Laden's senior terrorist attack planner. Next to bin
Laden, Khalid Shaikh Mohammed was the FBI's Most Wanted
Terrorist.
May I be clear here. The Department of Justice's overriding
priority is preventing future terrorism, not just prosecuting
past crime. Khalid Shaikh Mohammed's capture is first and
foremost an intelligence opportunity to prevent new terrorist
attacks from killing more innocent Americans.
Today, the world's premier intelligence agencies, the CIA
and FBI, are moving rapidly to exploit that intelligence
opportunity. The CIA and FBI are cooperating thoroughly to
share information from ``the capture,'' analyze that
intelligence, and coordinate followup operations. And when I
say today, I don't just mean today. I mean from the instant the
opportunity matured in the capture. I know my phone was ringing
at 1:30 in the morning Sunday morning with the request for
consultation in regard to our exploitation of this opportunity.
Under our new standard of FBI-CIA cooperation and coordination,
Khalid Shaikh Mohammed's capture means the FBI can better
prevent terrorism and save American lives.
Second, the new FBI, America's domestic counterterrorism
force, integrates fully intelligence and law enforcement
capabilities to protect American lives. Today we have unsealed
charges against two Yemeni citizens, Mohammed Ali Hasan Al-
Moayad and Mohshen Yahya Zayed, the result of an extensive FBI
undercover operation. They are charged with conspiring to
provide material support to Al-Qaeda and Hamas terrorists
through Moayad's worldwide fund-raising operation. As the
complaint alleges, the FBI undercover operation developed
information that Al-Moayad personally handed Osama bin Laden
$20 million from his terrorist fund-raising network.
As set forth in the complaint, in November of 2001, the
FBI's International Terrorism squad began working with a
confidential informant who had known Al-Moayad for over 6
years. According to the complaint, during several meetings with
the FBI informant, Al-Moayad boasted ``jihad'' was his field
and trumpeted his involvement in providing money, recruits, and
supplies to Al-Qaeda, Hamas, and other terrorist groups, and he
said he received money for jihad from collections at the Al
Farouq mosque in Brooklyn. Al-Moayad also claimed to be Osama
bin Laden's spiritual adviser.
On January 7, 2003, Al-Moayad and Zayed flew from Yemen to
Frankfurt, Germany, to meet with the FBI informant. According
to the Government's complaint, Al-Moayad allegedly went to the
meetings intending to obtain $2 million from a terrorist
sympathizer who wanted to fund Al-Qaeda and Hamas.
Again, the complaint details that at meetings with FBI
informants in Frankfurt last month, Al-Moayad confirmed that
the $2 million contribution would be used to support the
mujahideen fighters of Al-Qaeda and Hamas. Zayed even ``swore
to Allah'' that Zayed would get the money to Al-Qaeda and Hamas
if anything happened to Al-Moayad.
This extensive FBI counterterrorism operation blended human
intelligence sources, advanced electronic surveillance, deep
undercover operations, terrorist financing savvy, and criminal
subpoenas and search warrants--with seamless law enforcement
and intelligence cooperation added to those components. We find
ourselves in a position to unseal that complaint today.
The breadth and talent of the team fielded in this case
literally spanned the globe--from New York City police to
prosecutors in Frankfurt, Germany. This is the new FBI, focused
on preventing terrorism, integrating intelligence and law
enforcement, and delivering results. Director Mueller and FBI
agents around the world have transformed their intelligence and
counterterrorism operations to achieve this prevention mission.
Their results make Americans safer and bring justice to the
full network of terror, often in ways that the public does not
see and that cannot be disclosed.
Third, the Justice Department is prosecuting the war on
terrorism by integrating our law enforcement and intelligence
capabilities as authorized under the PATRIOT Act. The
Department recently indicted Sami Al-Arian and seven co-
conspirators, several of whom were leaders of the Palestinian
Islamic Jihad. The indictment details that Al-Arian served as
the secretary of the Palestinian Islamic Jihad's governing
council called the ``Shura Council.'' He was also identified as
the senior North American representative of the Palestinian
Islamic Jihad.
As the allegations in the indictment detail, the
Palestinian Islamic Jihad is responsible for the murder of over
100 innocent people, including 20-year-old American student
Alisa Flatow, whose father I quoted at the beginning of my
testimony.
Seized items described in the indictment include:
A fax to Al-Arian and several associates on April 9, 1995,
the day Alisa Flatow was killed. The fax announced the death of
Khalid Al Khatib, the Palestinian Islamic Jihad killer who
carried out the suicide bombing that killed Alisa.
Also seized and described in the indictment, the wills of
suicide bombers in the computer files of Al-Arian's purported
charitable organization; and also seized, a fax containing the
names of Palestinian Islamic Jihad suicide bombers killed and
the names and account numbers of those who were to receive
money on their behalf, their having committed suicide, money to
come from the Palestinian Islamic Jihad.
Yet, prior to the passage of the PATRIOT Act, the
prosecutors in this case did not have the ability to
participate fully in this investigation that ultimately led to
RICO and material support charges against Al-Arian and his
associates.
Today, Americans are safer because we have transformed the
rules of engagement for investigating and prosecuting suspected
terrorists within our borders.
First, and the Congress to be commended for its passage,
the passage of the PATRIOT Act in October 2001 allowed for
information sharing between law enforcement and intelligence
and allowed us to implement our new FISA guidelines;
Second, on November 18, 2002, the Foreign Intelligence
Surveillance Court of Review reversed the district level FISA
court and upheld our new FISA guidelines for information
sharing;
Third, we have tasked the U.S. Attorney's Offices to review
all intelligence material that may provide the basis for
criminal charges against terrorists and terrorist financiers.
As the FISA Court of Review noted--that is the appeals
court of the FISA court, and it has only issued one opinion in
its existence, and I quote: ``Effective counterintelligence
requires the wholehearted cooperation of all the government's
personnel who can be brought to the task.'' I am continuing to
quote: ``A standard which punishes such cooperation could well
be thought dangerous to national security.''
This dangerous standard existed until we reformed the law.
You helped in the PATRIOT Act. We rewrote the FISA procedures
and directed prosecutors to change their practices. Senator
Hatch, I want to thank you personally for your strong support
and your leadership in eliminating this dangerous standard.
I also would like to thank the American people for their
continued role in protecting the country from terrorism. We
have no suffered another major attack in this country, and it
is to the credit of an alert, vigilant, and supportive public
as well as thousands of unsung and dedicated public servants
that Senator Leahy mentioned--they are to be commended and
thanked--and some whose stories cannot be told as a result of
national security concerns, many of whom I am privileged to
work with on a daily basis, and they deserve my thanks and, I
believe, the thanks of this Nation.
Now I would like to turn to a brief overview of additional
results of our integrated prevention strategy.
First, we are gathering and cultivating detailed
intelligence on terrorism in the United States: hundreds and
hundreds of suspected terrorists have been identified and
tracked throughout the U.S.; our human sources of intelligence
have doubled; our counterterrorism investigations have doubled
in 1 year; 18,000 subpoenas and search warrants have been
issued; over 1,000 applications in 2002 were made to the FISA
court targeting terrorists, spies, and foreign powers who
threaten our security, including 170 emergency FISAs.
Second, we are arresting and detaining potential terrorist
threats: four alleged terrorist cells in Buffalo, Detroit,
Seattle, and Portland broken up; 211 criminal charges brought
to date; 108 convictions or guilty pleas to date, including
those of shoe-bomber Richard Reid, ``American Taliban'' John
Walker Lindh, and one member of the Buffalo cell; 478
deportations linked to the September 11th investigation.
And we are dismantling the terrorist financial network: 36
designated terrorist organization; $124 million in assets
frozen and over 600 accounts frozen around the world; 70
investigations into terrorist financing with 23 convictions or
guilty pleas to date.
Fourth, we are disrupting potential terrorist travel: more
than 50 major airport sweeps in Operation Tarmac with more than
1,200 arrests for ID and document fraud and other crimes; nine
major alien smuggling networks disrupted; hundreds of
terrorists and criminals stopped through the National Entry-
Exit Registration System, NSEERs--a mandate of the Congress, I
might add, which we are now fulfilling--including 8 suspected
terrorists, with at least one known member of Al-Qaeda
apprehended as a result of that effort; 551 aliens stopped at
the border who were wanted criminals, had committed past
felonies or violated other laws; 46 felons identified through
domestic enrollment--the special registration--who were in the
country illegally, including cocaine traffickers, child
molesters, and individuals convicted of assault with a deadly
weapon.
Fifth, we are building our long-term counterterrorism
capacity: a 270-percent increase in counterterrorism funds,
thanks to the appropriations of the Congress; over 1,000 new
and redirected FBI agents dedicated to counterterrorism and
counterintelligence; 250 new Assistant U.S. Attorneys; 56 Joint
Terrorism Task Forces; a 337-percent increase in Joint
Terrorism Task Force staffing; and Fly Away Expert Teams for
rapid deployment to hot spots worldwide.
As I said, these are just some of our actions to date.
Today, Director Mueller will be providing you with details
regarding the fundamental reforms at the FBI that make
terrorism prevention the Bureau's No. 1 priority.
Finally, I would like to point out that throughout this
process, the Department of Justice has acted thoughtfully,
carefully, and within the Constitution of the United States,
that framework for freedom. Time and again, the actions on the
war on terrorism have been subjected to thorough judicial
review, and time and again, the Department has successfully
defended legal challenges, including: detaining enemy
combatants--sustained; detaining the enemy at Guantanamo Bay--
sustained; sharing FISA information--sustained; withholding the
names of sensitive immigration detainees--sustained; freezing
assets of purported charities that fund terrorists--sustained.
The President's powers to protect the American people are
rooted in the Constitution and they are sustained in our
courts. The actions we take against the terrorist threat will
always be rooted in the Constitution while accounting for the
adapting and changing methods of our terrorist enemies.
As the President stated in a recent visit to the FBI,
``There is no such thing as perfect security against a hidden
network of cold-blooded killers. Yet, abroad and at home, we
are not going to wait until the worst dangers are upon us.'' We
will work.
Our strategy and tactics are working. Listen to the
recorded conversation between charged terrorist cell member,
Jeffrey Battle, and an FBI informant on May 8, 2002. This is
instructive about whether or not what we do and what you do
really makes a difference. Battle is part of the alleged
Portland, Oregon, cell.
In his conversation unsealed in court, Battle explained why
his enterprise was not as organized as he thought it should
have been, and now I quote: ``...because we don't have
support,'' Battle says. ``Everybody's scared to give up any
money to help us. You know what I'm saying? Because that law
that Bush wrote about, you know, supporting terrorism,
whatever, the whole thing...Everybody's scared...He made a law
that says for instance I left out of the country and I fought,
right, but I wasn't able to afford a ticket but you bought my
plane ticket, you gave me the money to do it...By me going and
me fighting and doing that they can, by this new law, they can
come and take you and put you in jail.''
Very frankly, I was stunned at the understanding of those
involved in terror of the impact of the law passed by the U.S.
House of Representatives and Senate and sent to the President
for his signature. They are getting the message: We are
gathering and cultivating detailed intelligence on terrorism in
the United States. They understand our effort. We are arresting
and detaining potential terrorist threats. We are dismantling
the terrorist financial network, and we are disrupting
potential terrorist travel, and we are building our long-term
counterterrorism capacity. We are winning the war on terrorism.
I thank you for this opportunity to be with you, and I will
be happy to respond to questions.
[The prepared statement of Attorney General Ashcroft
appears as a submission for the record.]
Chairman Hatch. Thank you, General.
We will turn to you, Secretary Ridge.
STATEMENT OF HON. THOMAS J. RIDGE, SECRETARY, DEPARTMENT OF
HOMELAND SECURITY, WASHINGTON, D.C.
Secretary Ridge. Mr. Chairman, Senator Leahy, and
distinguished members of the committee, it is a distinct
pleasure and a privilege to appear before you today in what is,
as Senator Hatch has noted, my first opportunity to testify
before the Congress as the Secretary of Homeland Security. I
also appreciate the opportunity to appear with my colleagues,
Attorney General John Ashcroft and FBI Director Bob Mueller,
two extremely distinguished public servants and two of my
closest allies in the ongoing campaign to enhance the safety
and security of our American homeland. Thank you for this
opportunity to highlight the activities and the accomplishments
and the work of the Department of Homeland Security.
Last Saturday, the 1st of March 2003, we integrated nearly
two dozen agencies or entities into the Department of Homeland
Security. With them came some 180,000 dedicated Federal workers
who have all been serving their country with distinction from
various departments within the Government. This momentous
milestone means that there is now real muscle on the skeleton
of a Department that was created back in January. With these
agencies and these people come tremendous capabilities, as well
as challenges.
In order to better protect our borders, Under Secretary Asa
Hutchinson has launched a well-conceived and much needed plan
to combine the forces of the Customs Service, the Immigration
and Naturalization Service, the agricultural inspection
functions of the Animal and Plant Health Inspection Service,
and the Federal Protective Service. His initiative, based on
the vision articulated in the Homeland Security Act, combines
the four entities into two: a Bureau of Customs and Border
Protection, and a Bureau of Immigration and Customs
Enforcement. This is an important step that will leverage the
operational expertise of all those involved and move us toward
a future where there will be one organizational face at our
borders rather than several.
This realignment of resources has already demonstrated its
benefit. Last week, customs, immigration, and agriculture
border inspectors reported to three separate port directors who
in turn reported up three separate chains of command to three
separate Cabinet Secretaries. Today, these inspectors now
report to one interim port director, who reports through a
unified chain of command to one Cabinet Secretary.
Two weeks ago, we rolled out the Department's Citizen
Preparedness Program. The public response has been
overwhelming, with our ready.gov website receiving more than
2.5 million visits per day since becoming operational. This
program provides immediate and practical guidance to the
millions of Americans who, to their credit, know that
preparation makes sense and saves lives.
As of the 1st of March, we have entered into a number of
Memoranda of Understanding that consolidate previously
dispersed national incident support functions into the new
Department of Homeland Security. We have taken responsibility
and control of the Domestic Emergency Support Team, the
Strategic National stockpile, and America's National Disaster
Medical System and Teams. Restructuring these authorities gives
the Department the ability to manage major domestic incidents
by establishing, again, a single, comprehensive, and coherent
national incident management system.
Also ahead of us are other challenges as well as
opportunities to work more efficiently and effectively. We are
making good progress on a regional structure that will help to
enhance overall accountability and efficiency. That plan is
still under development. When we have a better idea of how the
regions will be organized, we look forward to presenting the
final plan to Congress.
We continue to build and refine our partnerships with other
Federal departments, State and local governments, and the
private sector. There is no Federal plan that will ensure our
homeland security. It must be a national plan that involves all
Americans. And it must go beyond even this, working closely
with our neighbors and allies overseas to build an
international plan and an international response. We are
working to build such a plan.
While this work goes on, we must continue to carefully tend
to all the critical missions of the Department of Homeland
Security, especially those that are not directly security-
related.
We have the support of our partners, like the gentlemen and
colleagues who join me here today, and we have the support of
Congress, which has been critical in getting us to this point.
I certainly appreciate the opportunity to be here today to
testify and to talk about the work we are doing to make America
a safer home for us, for our children, and for generations to
come. I thank you for inviting me to appear before you today,
and I look forward to answering your questions.
[The prepared statement of Secretary Ridge appears as a
submission for the record.]
Chairman Hatch. Thank you, Mr. Secretary.
We will turn to the FBI Director, Mr. Mueller, at this
point.
STATEMENT OF HON. ROBERT S. MUELLER III, DIRECTOR, FEDERAL
BUREAU OF INVESTIGATION, DEPARTMENT OF JUSTICE, WASHINGTON,
D.C.
Director Mueller. Thank you, Chairman Hatch and Senator
Leahy and members of the committee. President Bush recently re-
emphasized to all FBI employees that the FBI has no greater
priority than preventing terrorist attacks against the United
States. And since the attacks of September 11th, the FBI has
embraced this challenge and transformed itself to address the
current threat facing this country.
Before I outline for the committee the advances the FBI has
made in the past 18 months, I do want to assure the American
people and the members of this committee, particularly the
members of this committee who played such a vital role in
enhancing the FBI's counterterrorism efforts through the USA
PATRIOT ACT--I want to assure you that the FBI is committed to
carrying out its mission in accordance with the protections
provided by the Constitution. Every FBI agent is trained to
recognize that the responsibility to respect and protect the
law is the basis for their authority to enforce it. Respect for
constitutional liberties is not optional. It is mandatory. And
the FBI could not be effective and would not exist without it.
The FBI's efforts to identify and dismantle terrorist
networks have yielded major successes over the past 18 months.
We have charged over 200 suspected terrorists with crimes, half
of whom have been convicted to date, and the rest are awaiting
trial. And, moreover, our efforts have damaged terrorist
networks throughout the United States and overseas.
Last month, I testified before the Senate Select Committee
on Intelligence that the Al-Qaeda network will remain for the
foreseeable future the most immediate and serious threat facing
this country. And while this remains true, the arrest of Khalid
Shaikh Mohammed in Pakistan only 3 days ago is a significant
blow to the leadership of the Al-Qaeda network. While Osama bin
Laden maintains worldwide name recognition as the leader of Al-
Qaeda, Khalid Shaikh Mohammed is the operational or was the
operational mastermind. His terrorist plots--believed to
include the 1993 World Trade Center, the USS Cole bomb
delivered by boat, and the September 11th terrorist attacks
delivered by air--have resulted in the death of thousands of
innocent people.
I would like to congratulate and thank our Pakistani
partners on this major victory in the war on terrorism, as well
as thanking our brethren in the intelligence community. But,
most particularly, I want to thank the Pakistanis for their
efforts that led to the capture of Khalid Shaikh Mohammed. I
can assure you both here and throughout the country that any
and all resources of the FBI will be brought to bear to exploit
the intelligence information that may become available as a
result of this arrest.
We must not lose sight, however, of the fact that there are
many groups committed to international terrorism which offer
Al-Qaeda varying degrees of support. Nor will we discount the
threat from single individuals sympathetic or affiliated with
Al-Qaeda, acting without external support or surrounding
conspiracies.
And despite the arrest of Khalid Shaikh Mohammed, Al-Qaeda
and other terrorist networks are adept at defending their
organizations from U.S. and international law enforcement
efforts. As these terrorist organizations evolve and change
their tactics, we, too, must evolve. Accordingly, over the past
18 months, we have brought momentous changes to the FBI,
including the incorporate of an enhanced intelligence function.
These changes will better enable us to defend against this
terrorist threat.
Mr. Chairman, to effectively wage this war against terror,
we have augmented our counterterrorism resources and are making
organizational enhancements to focus our priorities. I would
like to review some of those changes with the committee,
beginning with the FBI's analytical program.
To give new focus to analysis, last year I created an
Analysis Branch in the Counterterrorism Division and assigned
it the mission of producing strategic assessments of the
terrorist threat to the United States. To date, the Analysis
Branch has produced nearly 30 in-depth analytical assessments.
Since 9/11, the FBI has increased the number of
counterterrorism analysts by 61 percent. And through fiscal
year 2004, our proposed increase will result in the quadrupling
of the number of analysts beyond that or those that we had
prior to September 11th. Recognizing in the short term that we
could not get to where we needed to be overnight, Director
Tenet detailed 25 of his analysts to the FBI to provide an
immediate infusion of expertise into our program while our
hiring initiative was underway.
We have also implemented a number of initiatives aimed at
enhancing training for our analytic work force, including the
creation of the College of Analytical Studies, which, in
conjunction with the CIA, has begun training our new
intelligence analysts.
Now, these improvements to our analytic program had to be
made as quickly as possible to address our immediate needs. I
now want to ensure our ability to collect and analyze this
intelligence for the long term.
The centerpiece of this effort is the establishment of an
Executive Assistant Director for Intelligence who will have
direct authority and responsibility for the FBI's national
intelligence program. Specifically, this individual will be
responsible for ensuring that the FBI has the optimum
strategies, structure, and policies in place first and foremost
for our counterterrorism mission.
Furthermore, intelligence units staffed with reports
officers will be established in every field office and will
function under the authority of the Executive Assistant
Director for Intelligence. And these reports officers will be
responsible for identifying, extracting, and collecting
intelligence from FBI investigations and sharing that
information throughout the FBI and throughout the other law
enforcement and intelligence entities.
We have established since September 11th a number of
specialized counterterrorism units, including what is called CT
Watch, a 24-hour counterterrorism watch center; a
Communications Analysis Section; a Document Exploitation Unit;
and enhanced the Special Technologies and Applications Unit to
making it a section; and, finally, we have also set up a
Terrorism Financing Operations Section. All of those entities
assist us in addressing the counterterrorism mission.
Let me turn for a moment to information sharing and our
operational coordination initiatives. If we are to defeat
terrorists and their supporters, a wide range of organizations
must work together. And I am committed to the closest possible
coordination with the intelligence community and other Federal
Government agencies and our essential partners at the State and
local level.
We are taking steps to enhance our cooperation with
Federal, State, and local agencies by expanding the number of
Joint Terrorism Task Forces. Where we had 35 prior to September
11th, we now have 66 as of today. These task forces partner FBI
personnel with hundreds of investigations from various Federal,
State, and local agencies in field offices across the country
and are important for multipliers aiding our fight against
terrorism.
We established here at headquarters the National Joint
Terrorism Task Force staffed by representatives from 30
different Federal, State, and local agencies.
And to strengthen our cooperation with State and local law
enforcement, we are introducing counterterrorism training on a
national level. And we are providing specialized
counterterrorism training to in excess of 200 agents and
training technicians from every field office in the country so
that they in transparency can train the estimated 27,000
Federal, State, and local law enforcement officers, hopefully
this year, training them in basic counterterrorism
investigations.
We also established an Office of Law Enforcement
Coordination. This was created to enhance the ability of the
FBI to forge cooperation and substantive relationships with all
of our State and local law enforcement counterparts. I brought
in a former chief of police to head up this particular office.
Let me turn for a second to the reforms in the FISA
process. Whatever problems--and there were problems in the FISA
process prior to September 11th. We believe we have taken
substantial steps to address those problems. We have created a
FISA Unit responsible for ensuring that FISA applications move
expeditiously through the FISA process. This unit is developing
and implementing an automated FISA management system, and it
will oversee the expeditious distribution of FISA court orders
and warrants to the appropriate field offices,
telecommunications carriers, Internet service providers, and
other specified persons.
The FBI's National Security Law Unit and the Department's
Office of Intelligence Policy and Review are collaborating on a
number of procedural and legal initiatives that are
streamlining and simplifying the process by which FBI agents
obtain FISA authority.
Since September 11th, attorneys from the National Security
Law Unit have conducted approximately 70 training sessions on
FISA-related issues. These sessions, which have been held at
Quantico, at headquarters, and in the field, have been attended
by agents and supervisors in groups as small as 20 and as large
as several hundred. In addition, we are in the process of
implementing the Deputy Attorney General's mandate to establish
a comprehensive training curriculum on FISA and related matters
for all Justice Department lawyers and FBI agents who work on
foreign intelligence and counterintelligence investigations.
Since September 11th, we have made full and very productive
use of the emergency FISA process whereby we can often
establish electronic surveillance within hours of establishing
probable cause that an individual is an appropriate FISA
subject. Thanks to the efforts of our agents and the attorneys
in the National Security Law Unit and the Office of
Intelligence Policy and Review, in the 1-year period from
September 11th to September 19, 2002, we have obtained more
than double the number of emergency FISAs as compared to the
total number of emergency FISAs we obtained in the prior 23-
year history of the FISA statute.
Let me spend a moment, if I might, Mr. Chairman, on
information technology. We are also swiftly addressing the
shortcomings of the Bureau's information technology. Over the
years, we have failed to develop a sufficient capacity to
collect, store, search, retrieve, and, most particularly,
analyze and share information. Mr. Chairman, you are aware of
the problems the FBI has experienced because of outdated
technology. Thanks to support from Congress, the FBI has
embarked on a comprehensive overhaul and revitalization of our
information technology infrastructure. That process is well
under way, but our technological problems are complex and they
will be remedied only through careful and methodical planning
and implementation. We have made substantial progress in the
past 18 months, and we have laid the groundwork for significant
progress in the months and the years ahead. And I would be
happy to explore that in more detail in response to questions.
Before I conclude, Mr. Chairman, I would like to take this
opportunity to pledge our support for the Terrorist Threat
Integration Center. As you know, this center will merge and
analyze terrorist-related information collected domestically
and abroad. This initiative will be crucially important to the
success of our mission in the FBI, and it will take us to the
next level in being able to prevent another terrorist attack on
our Nation.
I have provided additional details in my prepared statement
and would be happy to respond to any questions the committee
may have on the FBI's role in the Terrorist Threat Integration
Center.
Mr. Chairman, I have outlined for you just a few of the
significant enhancements the FBI has implemented since the
terrorist attacks of 2001. We have a far more in-depth briefing
on these initiatives and others, as well as an online
demonstration of our new analytical tools, that is available at
FBI headquarters to all members of the committee. And I invite
each of you to come to headquarters for this presentation at
your earliest convenience.
Mr. Chairman, let me conclude by saying that the nature of
the threats facing the United States homeland continues to
evolve and so does the FBI. We have made significant strides
toward enhancing our operations, and I appreciate the
opportunity to explain some of them to the committee today.
While we have come a long way in the past 18 months, we
still have a long way yet to go. I look forward to working with
the committee in the months ahead to further enhance our
ability to combat terrorism and to ensure the strongest, most
effective FBI possible?
Thank you, Mr. Chairman, for the opportunity to make this
statement today, and let me finally say that I look forward to
whatever suggestions the committee may have. We certainly do
not have a monopoly on how things can be improved, and we look
forward to working with this committee to further improve the
Federal Bureau of Investigation.
[The prepared statement of Mr. Mueller appears as a
submission for the record.]
Chairman Hatch. Well, thank you. I think all three of your
statements have been very informative, and I think the public
at large will benefit greatly from hearing what you have had to
say. In particular, Mr. Mueller, I am appreciative of your
humble approach to things, because you have always said, ``Help
me to do my job better, if you can. We are open. We will
listen.'' And I personally appreciate that, and I have
appreciated the service you have given.
I appreciate you other two greater leaders as well. You
have had a tiger by the tail, Senator Ashcroft, and we
appreciate it. And now there is no question about the tigers
you have by the tail, is all I can say. So you have a rough
time.
What we are going to do is we are going to go to Senator
Kyl first, then to the ranking member, and then I am going to
go to Senator Specter, and I will give him my time and he will
take his time for 14 minutes, and then I will come to two, if
they are available, over the Democrat side for 14 minutes, 7
minutes each.
Now, given the interest in this hearing, I am going to ask,
out of consideration for other members of the committee, that
each member stay within the 7-minute allocation of time for
questioning. If we do, then every member on the committee can
get at least one round of questioning, and possibly more. Each
minute any of you go over takes time from your fellow Senators.
So I would like us all to be as courteous as we can to our
fellow Senators by staying within that 7-minute time limit. So
this little instrument here will tell me when 7 minutes is up.
That one there, when the red light comes on, I hope you will
stop because I will probably interrupt you so that we can give
everybody a chance.
We will turn to you, Senator Kyl, first and----
Audience Participant. Mr. Chairman----
Chairman Hatch. We are not going to have statements----
Audience Participant. On the matter of judiciary and
courts, judges are used as a terrorist organization against us,
not today, not yesterday, but 50 years, and with both
administrations, Democratic and Republican Parties, and who is
going to investigate this matter?
Chairman Hatch. All right. We are going to have to--we will
take that into consideration. We are going to have to move
ahead with the committee hearing. I don't want any further
outbursts by anybody, and if there are, we will have you
removed from the room. But if you will just relax and sit back,
we will keep you in the room. If not, we will have to have you
removed.
Senator Kyl?
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator Kyl. Thank you very much, Mr. Chairman, and I very
much appreciate your willingness to defer to me. As it
sometimes occurs, we have commitments that require our presence
elsewhere, and I must leave to focus on an issue that is of
concern, especially, Secretary Ridge, to you, and that is the
illegal immigration which results in huge costs both to our law
enforcement community, State law enforcement community, and to,
as it turns out, our hospitals which have to care for illegal
immigrants and bear a cost of about $1.5 billion a year. That
will take me away in just a moment, so I appreciate the Chair
deferring to me.
It frequently makes news when someone criticizes the law
enforcement community when there are failures, and, of course,
we can't stop every attack. But it is always good to hear good
news, and the exception to this, with the recent capture of
Khalid Shaikh Mohammed, and General Ashcroft, your testimony
containing a lengthy and impressive review of successes of law
enforcement is welcome. And I commend all three of you for the
efforts that you have engaged in and hope that you will convey
to those who work with you our appreciation.
Director Mueller, my first question is to you. There are a
number of terrorist attacks that have been averted or prevented
as a result of the cooperation of law enforcement agencies and
our intelligence work, both here and abroad. Could you just
give us an idea of the number of attacks that have been averted
that we can't talk about in terms of where they occurred, what
was happening, and so on? But it is important at least to know
that we have been successful.
Mr. Mueller. Senator, several months ago we tried to add up
the number of terrorist attacks around the world that may have
been averted by not only the efforts of the FBI and the CIA,
but also the efforts of our counterparts overseas. And when we
did so, it was well in excess--it was in excess of 100. We
think by this time it is probably well in excess of 100 when
you take into account arrests that have taken place, for
instance, in Great Britain with regard to risin in the last few
months, in Spain. We also are looking with some anticipation to
determine what information we may obtain from whatever was
seized with Khalid Shaikh Mohammed in hopes of exploiting those
materials with the expectation that we will be able to avert
additional attacks with that exploitation.
Senator Kyl. The next question is both to Attorney General
Ashcroft and to Director Mueller. It has to do with the Foreign
Intelligence Surveillance Act which prevents the FBI from
conducting surveillance unless there is probable cause to
believe that the suspect is either a foreign power or an agent
of a foreign power, and as a result the FBI cannot get an order
to surveil individual foreign terrorists, notwithstanding the
fact that recent intelligence reports cite increased risk of
lone wolf attacks.
And Senator Schumer and I have a bill which will allow the
FBI to monitor the lone wolf terrorist under FISA even if not
linked to a foreign power, so long as the FBI has probable
cause that the person is engaged in or preparing for
international terrorism.
This question is for both of you. FISA was originally
passed in order to deal with Soviet spies in the rather
hierarchical kind of terror groups that existed then like the
Red Army faction and so on, whereas today we are dealing with a
movement of Islamic terrorism that sometimes does not involve a
membership card in a particular organization. Could both of you
confirm the administration's position on the bill that Senator
Schumer and I have which permits the surveillance of even the
lone wolf terrorist? General Ashcroft?
Attorney General Ashcroft. Well, first of all the
administration believe that would be a step in the right
direction. It is a good bill. It is what ought to be done.
Right now we have the ability, if there are two or more
involved, so the change in the law is not that great. But we do
know that single, lone wolf terrorists act and can act in ways
that are very, very damaging. Without referring to any case,
for example, someone who decided on his or her own motive or
involvement to begin an assault on a population with a weapon
to disrupt say a train station is someone that could cause
serious damage while acting alone. It is our judgment that the
requirement that the person be involved in international terror
is enough of a predicate to be a responsible basis for
involving us in the kind of coverage that is available, and we
believe the proposal is a good one and should be enacted.
Senator Kyl. And, Director Mueller, you are also concerned
about the lone wolf terrorist?
Mr. Mueller. I support, quite obviously, what the Attorney
General said in terms of the utility of this change in the
bill. We have had problems in the past in attempting to
identify sufficient information to link an individual to an
agent of a foreign power, a particular terrorist group. And
this would overcome some of those hurdles that we have had in
the past.
We have in our threat analyses, our summary of threats
facing the United States, identified the lone wolf as an
individual who we cannot dismiss, and one that we would have to
look out for, particularly when we know that Al-Qaeda is a very
loosely integrated organization, and quite often you cannot
until some time down the road identify particular ties to that
particular organization.
Senator Kyl. Thank you for that.
Mr. Chairman, I think that the yellow light suggests that I
am just about out of time, so could I request that the other
three questions that I have for our panelists be accepted for
the record, and I again very much appreciate your willingness
to defer to me at this time.
And again, I thank all of you, and I hope that you will
express to your colleagues, the many people who work for you
and for us, that we appreciate very much their hard work in
protecting us. Thank you.
Chairman Hatch. Well, thank you, Senator.
We will turn to Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman. Before I start I
might note that sometimes happens in some of these hearings,
there are interruptions. I just want to commend you for the way
you handled the most recent one, being respectful to those who
are guests here, but also being very respectful to what has to
be done in a hearing.
Chairman Hatch. Thank you, Senator. Appreciate that.
Senator Leahy. Governor Ridge, I mentioned earlier my
concern about support, Federal support for State and local
first responders. We have discussed this on other occasions.
Before the National Governors Association President Bush,
rather surprisingly, blamed the Republican controlled Congress
for shortchanging the Homeland Security programs to guard
against terrorism. He said he was disappointed that Congress
did not respond to the $3-1/2 billion that we had asked for. Of
course then the members of the President's own party came back
and said that the White House was intimately involved in
negotiating the details of the omnibus spending bill and had
signed off on every cent in there.
Be that as it may, it did cut a billion dollars off the
Federal program. We now have State and local authorities
asking--I mention this because today is town meeting day in
Vermont. It is an amazing part of democracy. And last night in
one town, Middlebury had theirs in the evening. The long-term
moderator has now been elected Governor of our State; he was
still there to be moderator. And was treated no differently
than anybody else at the town meeting. It works.
But they are asking on some of the first responder
questions they are getting, do we cut the school budget? Do we
cut the snow removal budget? What do we cut to pay for our new
requirements? A lot of fire departments in Vermont, are telling
me and I am sure they are in other states, they are having
members being called up by the National Guard to go to the
Middle East, and they want to know where the money is. So, the
President will have an emergency supplemental, and there can be
money in there for law enforcement agencies, fire departments,
EMS units. Should he include at least $5 billion in that
supplemental? I mean a lot of people in the Congress have asked
for it. Senator Daschle has. I have. Others. Should he include
$5 billion in there?
Secretary Ridge. First of all, I would like to ask the
Chairman if my entire text of my prior remarks could be
included as part of the record? I edited.
Chairman Hatch. Without objection, we will put the entire
text in.
Secretary Ridge. Thank you very much.
Senator first of all, we have, with the support of
Congress, appropriated $3.5 billion. While that did not meet
the hopes and aspirations of a lot of people, it still is a
substantial investment in first responder capacity. our job
will be to get those dollars out the door as quickly as
possible, hopefully beginning as early as the end of next week,
the end of this week. Second, the President has said that we
need to build this national capacity over a period of time. We
are going to do that. The President has requested an additional
$3.5 billion in the 2004 budget.
I would say, in response to your question, that right now
it is a little too early for me to determine what if anything
we will ask for within the supplemental if it comes to the
Hill. But I would say to the Senator that I hope, regardless of
whether we ask for additional money in the supplemental or
money in the 2004 budget, that we could provide the State and
locals a little bit more flexibility than some of the
earmarking would allow.
One of the things the Department of Homeland Security is
trying to do and to convince our colleagues in public service,
the Governors and the mayors, is to develop local plans and
statewide plans, and then allow us to fund those plans, so that
they specifically earmark and delineate where those dollars are
to go.
Senator Leahy. Let me ask you this, and actually you would
be a good one to know about the needs. The needs of
Pennsylvania when you were Governor, are different than the
needs of Missouri when General Ashcroft was Governor, or the
State of Vermont or Utah or anywhere else. And you know you
have to have some flexibility.
Secretary Ridge. Correct.
Senator Leahy. But if you had $5 billion, could you use it?
Secretary Ridge. Well, I think if we have--any additional
money could be used, to be determined. I would echo a hope and
an aspiration that the 3.5 that we are going to get out the
door as quickly as possible could be quickly joined by another
3.5 in the President's 2004 budget, which would get us $7
billion.
Senator Leahy. Let me ask you this. We have authorized
increases in Immigration personnel at our northern border.
Before the September 11th attacks I think it suffered a lot of
neglect. Now, we have a two-way thing on the Northern border.
Canada is our largest trading partner, and a strong, good ally
of the United States. We want to have easy movement back and
forth. I live an hour from the Canadian border. I know how
important it is both for commerce and for families--a lot of us
have relatives in Canada--to be able to move back and forth
easily. But we also know we need stronger border personnel. The
Attorney General, the Director of the FBI, they are concerned
about what might come across a border that historically has
been a very open one. In today's Burlington Free Press in
Vermont they talk about organized smuggling groups coming down
in a low-flying helicopter. Our State's public safety
commissioner says our border is not secure. Professional
smugglers can be smuggling any type of contraband. We know what
happened on our Southern border. Heavily armed Cuban commandoes
came in flying the flag, and actually landed, pulled ashore and
walked up and down the street, finding out who they could turn
themselves in to.
Will you assure me, as you have in the past, will you
assure me that we will start working very hard on this? We have
one of your three major INS facilities in Vermont. If that was
attacked it could create all kinds of havoc throughout, havoc
that would affect every aspect of law enforcement. Will you
work with us to make sure that we get more security at those
borders?
Secretary Ridge. Senator, you certainly have that pledge.
Frankly, we are grateful for the support. I believe it was your
amendment to the PATRIOT Act that provided the designation for
additional complement to be added to the border patrol in the
north and further inspectors. I think we are about three-
quarters of the way there with the dollars we got in the 2003
budget. We are also in the process of continuing to develop a
21st century smart border agreement with our Canadian allies so
that we can encourage and facilitate the flow of legitimate
goods and people, but also use other means to apprehend and
discourage the illegitimate flow of goods and people that we do
not want into this country.
So I think in the months and the years ahead, a combination
of these good people, with the complement that you have
authorized and supported, along with some new technology, we
will do a much better job at facilitating that goal at our
borders, both north and south.
Senator Leahy. Thank you.
Mr. Chairman, I will submit my other question for the
record. I would hope the Chairman would work with me to make
sure the questions are responded to.
Chairman Hatch. I would be glad to do so, Senator.
Senator Leahy. Thank you.
Chairman Hatch. We turn to Senator Grassley now for 7
minutes, and then to Senator Feinstein for 7 minutes, and then
to Senator Specter.
Senator Grassley. Thank you. I hope I can get to each one
of you with one question and then submit the rest of the
questions for answer in writing.
First of all, I want to compliment the Chairman for holding
an oversight hearing. I hope this is the first of many
oversight hearings because I think oversight is very, very
important.
Secretary Ridge, I will start with you. As you know, I
recently held a Finance Committee hearing on border security
that revealed several serious problems. Two of those problems
really stick out. The first problem was that undercover agents
got into the country at ports of entry using really
unsophisticated fake IDs and other phony documents. The second
problem is enforcement on public lands at the borders. More
than 40 percent of the Southern border is park land, and the
Northern border has more than 500 miles of public land. About a
quarter of a million illegal aliens cross the Southern border
every year, but only a handful of park rangers are out there to
stop them. Who knows how many terrorists could join the
smugglers and immigrants to get into the country.
The day of the hearing that I held, you made a comment on
the news that these issues needed to be resolved and that you
would work with me.
So first I want to ask about the park lands at the borders.
The National Park Service is just not equipped, staffed or
trained to protect the borders enough. Security is a big, big
priority right now with everybody. The Park Service needs the
help of Homeland Security. You have got ports of entry pretty
well secured, at least I hope you do, and I think that you are
working hard in that direction. But what can your department do
to help stem the flow of illegal aliens on the rural public
lands along our borders?
Secretary Ridge. Senator, the collaboration that has
historically existed between the Border Patrol and other
departments and units that come into the new Department of
Homeland Security has been good. We believe, however, that our
ability to reconfigure the border units, the border bureaus,
one dealing with protection, the other dealing with
enforcement, will give us some additional personnel that we can
apply to the borders and to work with the Park Service to cover
what heretofore has been uncovered or rarely covered territory.
One of the meetings I have later on this week is with the
Director of the Park Service. We recognize that there is a gap
there, and it is our responsibility in the Department of
Homeland Security to find ways to fill the gaps. One will be,
obviously, more personnel, we believe through the
reorganization that we are developing. But in time, we think
detection technology should be deployed in some of these less
inhabited or uninhabited areas.
Senator Grassley. Thank you.
Director Mueller, I know that you are working hard to
transform the FBI. Unlike many of my colleagues floating new
ideas, I still think that the FBI should be in charge of
counterterrorism. What concerns me today is the FBI's internal
cultural problems that you have heard me talk so much about.
The FBI cannot reform, I think, unless these problems get
fixed. These are the same issues that have stopped the FBI in
the past from being effective in counterterrorism. You
inherited many problems. You have an opportunity and, as I
know, you feel a duty to fix them. The example of this that
troubles me, there is just one example that troubles me right
now, is your Assistant Director at OPR, Mr. Jordan, and Unit
Chief John Roberts. As you know, I have been concerned that Bob
Jordan retaliated against John Roberts after Mr. Roberts went
on 60 Minutes to talk about longstanding problems, especially
the double standard in discipline. You have told me that you
will not allow retaliation, and I have your memo here from
November 2001, that says exactly that. But I also happen to
have with me the Inspector General's report about the case
involving Jordan and Roberts. The way I see it, an accounting
is needed. This is an opportunity for you to declare an end to
the double standard by holding Mr. Jordan accountable for a
violation at least in spirit of the memo that you issued
November 2001. Otherwise, the double standard will be alive and
well, and agents will fear retaliation for speaking the truth
about the problems. If that happens, I think my faith in the
ability of the FBI to reform would erode because that
atmosphere hurts the FBI's overall effectiveness.
I am also very troubled that Bruce Gephardt, the FBI's
Deputy Director, sent an e-mail that said Mr. Roberts had,
quote, ``brought discredit to the FBI badge.'' In my letter to
you last week I asked how someone who had done what Mr. Jordan
has could still be in charge of the office or OPR. And now
there is a story in the media, I think just yesterday,
suggesting he misled me, misled Senator Leahy, misled Chairman
Hatch in December. I am not saying that he lied, but I do not
think he was forthcoming. You have had some time to think about
this I hope, so I would like to hear what your plan is for Mr.
Jordan and what you think of Mr. Gephardt's e-mail.
Mr. Mueller. Well, Senator, quite obviously, I share your
concern about a double standard and protections for
whistleblowers. I think with regard to the issue of Mr. Jordan,
when the issue arose, I did, as I have in the past, asked the
Inspector General to look at that issue. And I have reviewed
the Inspector General's report, and I point out on the one hand
it concludes that Jordan did not intentionally retaliate
against Special Agent Roberts, but it did raise issues with
regard to Mr. Jordan's judgment in that context.
Because of the seriousness of the issue, and because I am
looking for guidance on what is the appropriate way to handle
this, I had a meeting with the Inspector General yesterday, and
I informed the Inspector General that in reviewing the report
and looking at the issues relating to judgment, it was my
belief that that in and of itself was not sufficient to take
any action, but that I should look at that in the context of
Director Jordan's handling of the office, his record for
integrity and judgment throughout his career, which is
substantial, and to continue to look at that position and how
he is operating that position, and that is what I intend to do.
I will tell you also, Senator, that as you are aware, I
know, that Mr. Roberts, who I respect and is respected by many
agents in the FBI, also has indicated that Bob Jordan is making
substantial changes to OPR that were long overdue. And if you
look at Mr. Jordan's record in OPR in the short time that he
has been there, he has reduced the backlog substantially. He
has made substantial improvements to make our OPR better, and
not only better across the board, but also to eliminate the
appearance of a double standard.
Senator Grassley. I think that is a slap on the wrist and
that you are sending a very bad message to everybody else, that
there is going to be a double standard continued. Thank you.
Chairman Hatch. Well, thank you, Senator Grassley. We will
turn to Senator Kohl then. Let me get this lineup. Senator Kohl
will go for 7 minutes, and then we are going to go to Senator
Specter for 14. He has my time as well as his. And then we will
go to Senator Feinstein for 7, then Senator Feingold for 7. So
you will have 14 minutes on that side. And I have to leave for
a few minutes to take a phone call, so if either of you will
continue to operate that way.
We will go to Senator Kohl, then Senator Specter.
Senator Kohl. Thank you, Mr. Chairman.
I would like to talk about the Homeland Security Advisory
System, gentlemen. When a decision is made, as it was recently,
to raise the alert level from yellow to orange, that
determination puts the entire country on a heightened state of
alert. News reports at that time suggested that prompting the
change were serious threats to New York and Washington, D.C.
And yet there may have been entire areas of the country where
the danger level of terrorist activity had really not changed
at all. Surely one cannot suggest that every part of the
country has the same level of risk. In fact, it is likely that
more than half the country live in areas that did not need to
go on a heightened state of alert at all. The threat level
certainly varies depending upon whether you live, for example,
in rural Wisconsin or in a major urban area.
So I ask what can be done to improve the advisory system so
that we know which regions of the country are truly at risk and
which regions are not?
Secretary Ridge. Senator, thank you for your inquiry,
because as you know, the decision itself to raise the threat
level and to give the law enforcement community and security
personnel around the country a warning based on our threat
analysis is a very difficult and complex one, as it is. It is
not a decision that is undertaken based upon a single piece of
information, and it has not historically been done on a given
day. It is really something that occurs after multiple sources,
credible sources are reviewed, plot lines are examined, and
then once the President's Homeland Security Council has had an
opportunity to review it, to make a recommendation, and then we
made that decision.
There is an ability within the existing advisory system to
regionalize, either in terms of geography or economic sectors
or the like, the threats. Literally there is that flexibility
within the system, and we will certainly--it is coming close to
its first year anniversary--take a look at the system itself,
see how it has been utilized during the past year--we think it
has been utilized rather effectively--to determine what
additional flexibility we could create within the system to
respond to the concerns that you have expressed and many others
have expressed, including your colleague to your right. Senator
Biden expressed a concern about regionalization in more
specificity with regard to the use of the warning system.
I will tell you 2 weeks ago, 3 weeks ago, there was enough
general information from credible sources about potential
targets that we would interpret as being national in nature,
warranted our taking the warning system from yellow to orange,
and not regionalizing it. In the past we have sent out specific
warnings, you will recall, not through the threat system, but
we did identify some credible threats to the financial sector
many, many months ago, and dealt with that specifically.
So the flexibility is there. We have had the system up and
operating for about a year. We obviously want to go back and
take a look and see if we can build more flexibility, but it is
threat-driven, information-driven. Unless we have that kind of
specificity that drives us to a specific decision and a
specific determination, our instinct is to put out the general
warning rather than a specific one.
Senator Kohl. Mr. Ashcroft?
Attorney General Ashcroft. Thank you, Senator. I would like
to just add that the purpose for the threat advisory system is
to prevent terrorism. And one of the things that we have
learned is that those individuals who many not be at the focus
of the attack are in a position to sometimes participate in
preventing an attack. We know that individuals first got on
airplanes in Maine, and then transferred to airplanes that
eventually were part of the tragedy in New York. We watched as
individuals took flight training and did other things all
across the country. So in terms of prevention, we have found
that individuals are all across the country who have
represented a part of a threat that is very serious. While I
think it is fair to say that some part of the country be as
vulnerable to the specific attack for prevention purposes, a
high level of alert can be very helpful to us.
Second, I think it is pretty clear that when we put the
alerts out, that various parts of the country respond in
different ways to meet the local needs. So the Director of
Homeland Security has very appropriately indicated that we have
the ability to tailor the threats. We also want to make sure we
are always enlisting the aid of the entire Nation, for
frequently those who perpetrate attacks stage, plan, develop,
train and take actions in settings that are not the focal point
of the attack. And so that we find yes there is a differential
risk. We hope that even by making the announcement we drive the
risk down by having an alert public, which we know from
intelligence the terrorists, when they see alertness and
vigilance and a high level of security, they defer, default or
abandon their plans.
I think we can ask for help from citizens all across the
Nation, and it has been helpful. That is one of the reasons
that it sometimes, even for areas that are not likely perhaps
to be the subject of attack, they can help in preventing an
attack. That is our No. 1 priority.
Senator Kohl. Mr. Mueller, do you have a comment?
Mr. Mueller. No. I would follow with what the Attorney
General and Secretary Ridge said.
Senator Kohl. One more question, gentlemen. Most Americans
live in communities that do not have important national
landmarks like the Sears Tower or Golden Gate Bridge, and yet
they are concerned about the chance of a terrorist attack
against their water sources, power plants and bridges. When I
surveyed Wisconsin sheriffs and chiefs of police, 40 percent
reported that they feel that risk of a terrorist attack in
their jurisdiction. But they report that they are unsure how to
evaluate the risk to their local infrastructure and how to
protect their skills, for example, or the shopping malls. And
if they conclude that their communities are at risk, they tell
us they cannot afford to pay for the protection that is
necessary.
These are real concerns I believe that impact our
communities on a daily basis. So how can we help them protect
their population? Does the Federal Government need to do
perhaps a better job of informing, educating, and when
appropriate, funding our State and our local officials?
Secretary Ridge. Senator, the President and the Congress
have recognized that concern at the State and local level in
the passage of the Homeland Security Act, when it included in
the new department an Information Analysis and Infrastructure
Protection Unit, whose precise mission is to map the critical
infrastructure around the country, develop means of risk
assessment, vulnerability assessment, come up with prescriptive
measures when they deem appropriate. That process began in the
Office of Homeland Security and resulted in the President's
National Strategy for Critical Infrastructure Protection, and
part of the responsibility of the new department will be
working with your State and local leaders based on the theory
of managing the most serious risks, those piece of
infrastructure that have the greatest possibility of
catastrophic damage and injury to a community, and then coming
up with the means and methods to protect them if they are not
already protected.
But that concern that you have expressed and has been
expressed by people across the country is part of the
responsibility of the new department, and specifically the
Infrastructure Protection Unit within the department.
Senator Grassley. [Presiding.] Thank you, Senator Kohl.
Now, Senator Specter.
Senator Specter. Thank you very much, Mr. Chairman.
Attorney General Ashcroft, there was a considerable amount
of publicity given recently in the past 10 days to a situation
which arose when Pakistani aliens, who had overstayed their
visits, sought to go to Canada, which they thought had a more
lenient record on permitting them to stay. And the Canadian
officials were so over burdened, that they could not
accommodate the people and told them to come back in 2 weeks.
And when they then returned to the United States, they were
immediately arrested and deported to Pakistan, according to
these news reports. The concern I have is if people who are
here illegally are genuinely trying to get out of the country.
What is the harm in letting them do so unless there is some
specific reason that individuals involved might be terrorist
suspects? Of course if they were terrorist suspects the action
probably would have been taken by the Department of Justice,
Immigration, which has been under your control until very, very
recently. Is there any problem in letting people leave the
country voluntarily like the Pakistanis who have overstayed
their visas without subjecting them to arrest?
Attorney General Ashcroft. To my knowledge, we did not
prevent them from leaving the country. They went to Canada and
they were allowed to go to Canada. According to your report,
the Canadians could not accommodate them, so it is not our
position that people cannot leave the country. It is our
position that people who have overstayed their visa cannot stay
in the country, and that they should live within the rules
provided for those who visit the United States, and if they
overstay and fail to observe the law, we ask them to leave.
That is what deportation is about. And if they do not leave or
they find themselves incapable of leaving, then we assist them
in leaving, and that is why we have moved forward in that
respect.
Senator Specter. Attorney General Ashcroft, I do not want
to spend any more time on this because very limited time, and I
want to devote my principle time to questions on Foreign
Intelligence Surveillance Act with Director Mueller. But I
would ask you to take a look at this very extensive article in
the New York Times for February 25th. The facts they recite are
at variance with what you have said. And I once found another
newspaper article which was wrong, so the article may be
incorrect, but I would like you to take a look at that, and let
us have a response in writing as to whether their factual
representations are wrong, because I am relieved to hear you
say that if people want to leave and they are just coming back
because they cannot be accommodated because of the press of
business in Canada, that they will not be arrested or deported.
Attorney General Ashcroft. Well, let me just indicate I
will be happy to review the article. If they are coming back
with a view toward being gone, that is one thing. If they are
coming back because they just need a place to stay, that is
another. I have to say that this has been transferred from the
Justice Department by and large now with the Immigration and
Naturalization Service to the gentleman on my left.
Senator Specter. Well, since you mention that, I am going
to ask Secretary Ridge to read the article and do the same
thing with respect to his perspective policy.
But, Mr. Secretary, do you prefer to be called Governor or
Secretary? Mr. Secretary?
Secretary Ridge. Governor.
[Laughter.]
Senator Specter. Mr. Secretary, I would ask you to review
the article too with respect to what policy you would have.
Secretary Ridge. Sure. Thank you.
Senator Specter. Director Mueller, I have spoken
extensively about the FBI's attitudes, standards under the
Foreign Intelligence Surveillance Act, and I had hoped to have
a more extensive opportunity to discuss this with you today.
Senator Hatch has said that we will have another hearing where
you will be back on a more protracted basis. It is not hard, it
is impossible in the course of 14 minutes to really explore
this subject, but I have been asked to co-sponsor legislation
to take away counterintelligence from the FBI. There is a
growing school of thought in the Congress that the FBI is a
super law enforcement agency, but when it comes to
counterintelligence the FBI has not measured up, and I have
declined these invitations to support that legislation, but I
am considering it.
When we had your oversight hearings, I questioned you
extensively about congressional oversight because of my
dissatisfaction when I co-chaired an oversight subcommittee on
the Department of Justice. And you were effusive in your
agreement that there ought to be oversight and response for the
Federal agencies.
When FBI Agent Coleen Rowley came in and blew the lid off
of the practices of the Bureau on the Foreign Intelligence
Surveillance Act with her 13-page letter, she then came in to
testify with you on June the 6th, and testified that the
standard which the FBI Field Office In Minneapolis was using
was a 51 percent more likely than not, and we went through on
that day, June 6th, a detailed examination with both you--I
went through with you and Coleen Rowley, about the standards
which are summarized in a Supreme Court decision by then
Justice Rehnquist, now Chief Justice, that probable cause is
established by, quote, ``circumstances which warrant
suspicion,'' close quote, and then based on totality of the
circumstances. That standard was not applied by the FBI on the
application for the warrant for Zacarias Moussaoui under
Foreign Intelligence Surveillance Act. And we now know from
what has been gleaned, that had the FBI gotten into Moussaoui's
computer in combination with the Phoenix FBI memo which was
lost in the shuffle at FBI Headquarters, with the FBI not
knowing what it knew, that 9-11 might well have been prevented.
After that hearing on June 6, we then convened closed-door
hearings on July 9th, and on July 9th I questioned 7
individuals from the FBI, including attorneys, and they had not
heard about the hearing of June 6th. They had never heard about
the Gates case, and they were applying the wrong standards.
And then I wrote you a letter on July 10th reciting the
appropriate standard and then pointing out to you the very next
day after the hearing, ``In a closed-door hearing yesterday, 7
FBI personnel handling FISA warrant applications were
questioned, including 4 attorneys. No one was familiar with
Justice Rehnquist's definition from Gates and no one
articulated an accurate standard for probable cause.''
I didn't get any response until a nonresponsive letter came
in from John Collingswood, which was received in my office more
than 2 months later, on September the 12th, which was a
nonresponse, not dealing with my questions.
My first question to you, Director Mueller, is, when you
acknowledge the constitutional authority of congressional
oversight and you get a letter on a matter of utmost importance
where the FBI personnel responsible for getting warrants under
the Foreign Intelligence Surveillance Act, which might cutoff
another Zacarias Moussaoui, do you not feel you have an
obligation to respond?
Mr. Mueller. I do, Senator, and I wish we had gotten a
response to you sooner. We set about after that hearing looking
at our definitions of probable cause, the definition that we
teach down at Quantico, the definition that is in the legal
handbook for special agents, and we reviewed that and believe
that is consistent to what we find in Illinois v. Gates. There
was a period of time in which we were going to put out a much
larger missive to our agents to explore not only probable
cause, but other aspects of the FISA process. We determined not
to do that in August of that year and determined instead to
expand, in response to your suggestion and your concern, to
expand on the definition of probable cause as it is put forth
in Illinois v. Gates.
Senator Specter. Director Mueller, if you are saying that
you wanted to put out a memorandum which covered other
subjects, I find that unacceptable. What happened between June
6, when you and Agent Rowley came in, and July 10th when we
interviewed 7 of your key personnel, who apply the standard for
the Foreign Intelligence Surveillance Act? Let me rephrase the
question. Is it not entirely possible that there could have
been something in transit like Zacarias Moussaoui, where these
people who did not know the appropriate standard and did not
know about Gates would be applying the wrong standard, and
another Zacarias Moussaoui would slip through the cracks?
Mr. Mueller. Senator, at the hearing, I know you asked a
number of attorneys whether they were aware of Illinois v.
Gates, and I know you asked one of the attorneys to give the
definition. Illinois v. Gates is a 1983 case. They may not have
had on their mind that particular case. Nonetheless, it is
important for every FBI agent and every FBI attorney to have
the standard of probable cause as it is espoused in Illinois v.
Gates. And in the legal handbook for special agents at that
time and afterwards there is the standard set forth according
to Illinois v. Gates, No. 1.
Second, in response to what had happened prior to September
11th, it was important for us to assure that every time we get
a request for a FISA warrant it is given due consideration. And
I get briefed twice a day now since September 11th, and in
those briefings I discuss what FISA warrants are outstanding
and what response we have received from Department of Justice.
And to the extent that there is any concern about the adequacy
of probable cause, I look at it myself, along with advisers. So
we have put into place procedures, since September 11th, to try
to assure that what might have happened prior to September 11th
does not happen again.
Senator Specter. Director Mueller, you are wrong on the
facts. Those agents who testified in the closed-door session--
and you have had access to that transcript, and we published
excerpts in the report which we filed last week, were applying
a standard of more probable than not, 51 percent, and that is a
wrong standard. That is not a standard of suspicion under the
totality of the circumstances. They were applying the wrong
standard. Do you disagree with that? I do not see how you can.
It is there in black and white.
Mr. Mueller. Well, in the dialog and the colloquy with the
attorney, the attorney says ``it is not a preponderance of the
evidence, but it is more likely, more probable than not.''
Query whether that is appropriate or not. It may well not be,
but that has not been decided by the courts.
Senator Specter. Why do you say it may well not be? More
likely than not is not the standard. Rehnquist dealt with that
specifically in Gates.
Mr. Mueller. I misstated. It is more probable than not, and
there is some discussion as to whether or not more probable
than not equates to a preponderance of the evidence. The
attorney in your questioning said, it is not a preponderance of
the evidence. He did say more probable than not. And if you
look at Lafebre and you look at the treatises, there is some
discussion as to whether more probable or not is the same as a
preponderance of the evidence.
Senator Specter. Well, let us talk about that for just a
minute. More probable than not is exactly the same as
preponderance of the evidence. In a civil case the standard is
a preponderance of the evidence, and that is defined as more
probable than not, distinguished from a criminal case which is
proof beyond a reasonable doubt. And more probable than not and
preponderance of the evidence was handled by your Minneapolis
Field Office as being 51 percent.
Now, look here, I am not saying you are responsible for
what happened with Zacarias Moussaoui because you became
Director in September a few days before 9-11. But I am saying
that you are responsible, when you appear before the Judiciary
Committee in a hearing and you hear this discussion about your
Minneapolis Field Office being wrong, and you do not personally
take steps to correct it, and these come in more than a month
later and they do not know the standard. And if you try to
split a hair between more probable than not than preponderance
of the evidence, I would like to hear it.
Mr. Mueller. I am not trying to split hairs, Senator. Prior
to the hearings in the summer of last year, I had understood
that we had to do a better job in our FISA process, and I had
put into place procedures prior to the summer of last year to
assure that whenever we have an issue relating to probable
cause, it is addressed at the highest levels in the FBI. I am
not trying to split hairs on this. I will tell you, as you know
better than I perhaps, that in Illinois v. Gates they say that
the probable cause standard--and I will quote--``is a fluid
concept, not readily or even usefully reduced to a neat set of
legal rules.''
And we could debate it. I invite you down. I would like to
have an additional more extensive dialog on the probable cause
standard, but I believe at the time in July that we had those
hearings, we had in our legal handbook the appropriate standard
under Illinois v. Gates.
Senator Specter. Well, we are going to have a more
extensive dialog because the Chairman has said that we are
going to have another hearing. And when you quote Justice
Rehnquist, then Justice Rehnquist, now Chief Justice, saying
that it does not lend itself to any precise mathematical
definition, that is true, but he goes back to the Cranche case
in 1813, Chief Justice Marshall, on suspicion under the
circumstances and the totality of the circumstances.
One final word, Mr. Chairman. I had a situation when I was
District Attorney in Philadelphia. On June 13th, 1966 Miranda
v. Arizona came down, and every police interrogation put
prosecutions at risk, and I had a 54-page slip opinion from
Chief Justice Warren. And I put out guidance 4 days later,
before Friday. I did not want the weekend to pass and had the
Philadelphia police officers on the street questioning people
without giving the Miranda warnings and getting the Miranda
waivers.
And you are the Director of the FBI, and when a Senator
calls it to your personal attention in a hearing, and a month
later they are applying the wrong standards, and I write you
the next day, and it takes until September 16th for the Bureau
to put out a memorandum which is hard to figure out and does
not accurately quote Gates, I just think something is really
fundamentally wrong, and it goes to the most important issue
facing America today, and that is to apprehend terrorists. And
I compliment what the Department of Justice and the FBI are
doing generally on that, and what Secretary Ridge is doing. I
think we are on the right track. But I think when you have a
major gap as identified here, you are accountable, Mr.
Director.
Thank you, Mr. Chairman.
Chairman Hatch. Do you care to respond?
Mr. Mueller. Well, I do not disagree, Senator, at all that
I am accountable, and I can tell you that I do not mean to swap
stories about district attorney versus prosecutor, but when I
was a prosecutor in 1983, when Illinois v. Gates came out, and
I was Chief of the Criminal Division, I am sure I put out a
memo just the way you put out a memo because Illinois v. Gates
did away with the Aguilar-Spinelli two-prong approach. I am
sure I did at that point in time.
Senator Specter. Well, did you put out a memo? I would like
to swap that story.
Mr. Mueller. Well, I am sure I did back in 1983 when the
case came out.
Senator Specter. Well, I would like to see the memo. I will
produce mine.
[Laughter.]
Mr. Mueller. I will try to find mine.
Senator Specter. We are a couple of public servants,
Director Mueller, and I respect you, and you have perhaps the
most important job in Washington today next to the President,
but there has to be a sense of urgency on these matters. And we
are dealing with life or death, and there is a gap of time when
your people did not know the standard.
Mr. Mueller. Every night I go to bed, Senator,
understanding that every day in this job I deal in life and
death.
Chairman Hatch. Well, let me just add that I think Senator
Specter is doing all of us a favor in raising these important
issues, but let us also understand that Director Mueller
inherited a tremendously important job in a tremendously trying
time with all kinds of problems that pre-existed, and I just do
not know anybody who could have done a better job under the
circumstances, and I think that what Senator Specter is saying
here is, is that we want to do even better if we can. And I
respect my dear colleague from Pennsylvania very much, but I
also respect you, Director Mueller. I have watched what you
have done won there, and you have brought about a sea change,
which has been necessary, in my opinion, since 9-11, and you
deserve an awful lot of credit for it.
Now, I know that you are striving for perfection, but like
all of us up here, I doubt seriously that you have reached that
yet, so there is still room, and there is room for all of us
too. For instance, we did not get the moneys to law
enforcement. That is our job. We did not do that until about 3
weeks ago, so there are lots of ways we can find fault all the
way around. But let me just say we are proud of what you are
doing, and I am proud of what Senator Specter is doing in
trying to make sure that we have the very best law going for us
at every time. So let us just work together and see what we can
do to make things work perfectly if we can.
Mr. Mueller. Well, Senator, if I might respond, I am
absolutely open to any suggestions. As I said in my opening
statement, we have made substantial changes I believe, but we
have got a long ways to go, and to the extent that there are
suggestions, whether it be from the good Senator Specter or
others on the committee, I welcome them. I look forward to
working with each member of this committee to make the FBI a
better organization, and will continue to do so.
Chairman Hatch. Well, we appreciate that.
Senator Kennedy has graciously agreed to allow Senator
Feinstein to go next, and then we have another 7 minutes on
that side. Senator Kennedy, do you want Senator Feingold, or do
you want me to come back to you?
Senator Kennedy. Come back to me.
Chairman Hatch. After Senator Feinstein, we will come back
to Senator Kennedy, and we will take 14 minutes on this side.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
I have three quick questions, one somewhat off the subject,
for the Attorney General, one on bioterrorism and one on port
security.
Let me begin if I may with you, General Ashcroft, and I
think you know I am going to ask this question. On January 8th
you were good enough to see me, and we had an opportunity to
discuss reauthorization of the Assault Weapons Ban, which
expires in September of 2004. As you know, I asked you this
question in your confirmation hearing. You said you would be
supportive of reauthorization. The President, in his campaign
has said he was supportive of not only reauthorization but also
legislation prohibiting the importation of large-capacity
ammunition devices.
The question that I want to ask you today is would you in
fact, and would the administration in fact, be supportive of
reauthorizing the assault weapons legislation, along with the
clip ban first. Second, including your legislation which you
proposed when you were a member of this committee, to prohibit
juveniles from possessing assault weapons. And then third, and
perhaps I should leave this for a second question but whether
you would consider a strengthening of the legislation?
Attorney General Ashcroft. Thank you, Senator Feinstein.
As the President stated in his campaign, the administration
supports the current assault weapons ban. As you know, the
original law required a study to determine the effects of the
law in reducing crime. That study, conducted by the National
Institute of Justice from 1994 to 1996, and released in March
1999, concluded that, and I quote, ``The ban's short-term
impact on gun violence has been uncertain,'' close quote. And
then the study recommended further study, and we will continue
to study what impact the ban has had on reducing crime.
Senator Feinstein. My question was a little different. My
question was, will you be supportive of reauthorization with
the ban on the importation of large-ammunition feeding devices,
and of your proposed legislation to prohibit possession by
juveniles of these weapons?
Attorney General Ashcroft. The administration supports the
current law. Those proposals go beyond the current law, and we
will have to review those proposals and any other proposals
that go beyond the current law to determine their effect on gun
crime.
Senator Feinstein. Thank you very much.
I would like now to turn to bioterrorism. When I was
Chairman of the subcommittee, we played a role in the
bioterrorism bill specifically, requiring that any lab that
possesses dangerous agents like anthrax, smallpox, and 35 other
agents, register to possess these agents, require background
checks on lab scientists, and require a periodic update,
actually every 2 years, of their possession of these deadly
pathogens.
My concern, Governor Ridge, is that the new rules put out
by HHS do not require laboratories handling the world's most
dangerous pathogens, to fully upgrade their security until
September 12th of this year. And my question to you is, have
you reviewed these rules? Do you believe security at research
labs handling these agents is adequate? Bear in mind that we
did have that one episode at Texas Tech, where you had, I think
it was plague missing, which turned out to be destroyed,
fortunately. But nonetheless we have a very weak system in
place.
Secretary Ridge. Senator, your initiative to, one, not only
create a national registry, but also to assure that the
facilities that do research on these agents and these pathogens
are themselves secure, has led the Department of Homeland
Security and the Department of Health and Human Services to
have several discussions about this very important subject. The
last discussion I had with Secretary Thompson and his team is
that they in fact had been sending out teams from HHS to review
the pathogens, to take a look at the facilities, and also to
examine with their own eyes the security measures that had been
recommended, put in place or need to be completed. I think the
date of September of this year--and I am not familiar with the
specific language of the regulation since it was promulgated by
HHS--is a realistic assessment as to the time it will take for
these universities and labs to complete the security
precautions and meet the standards that HHS has set pursuant to
your initiative.
Senator Feinstein. Thank you, Governor. As you know, and I
think Mr. Mueller knows, when this committee held hearings
following the anthrax situation, and I came down to FBI
Headquarters, there is no specificity in terms of how many labs
possess anthrax in this country. The estimates ran anywhere
from 12 to over 20,000. Are we going to be able to narrow that
down to know exactly, and do we know exactly, how many labs in
this country utilize anthrax?
Secretary Ridge. Senator, I believe the intent behind your
initiative, and certainly the effort that has been undertaken
by Secretary Thompson, is to identify with that kind of
precision not only the number of labs, but the contents that
they have within those labs regarding the pathogens and agents,
that potentially abused could cause the kind of horror and
death and destruction that everybody is concerned about. I mean
that is the intent behind the initiative, and Secretary
Thompson and his team are moving forward rather aggressively on
it.
Senator Specter. [Presiding.] Senator Feinstein, Senator
Hatch has asked me to take the chair. He had to depart, and has
asked me to be very close on time because we have to excuse the
witnesses at 12:30, and there are other senators who will not
be questioning.
Senator Feinstein. All right, fine. I will yield then.
Senator Specter. I am sorry to interrupt, but that is the
order of the day.
Senator Kennedy now has 7 minutes, and then we will proceed
to the other side of the aisle.
Senator Kennedy. Thank you very much, Mr. Chairman.
Mr. Ridge, I want to just draw to your attention that we
still have not developed in the vaccine program a compensation
program. That has not been developed, and as a result there are
very few people that are actually being vaccinated with anthrax
and smallpox in the country. We have to do that. It can be done
very easily and quickly.
I have talked to Secretary Thompson. I have talked to the
Chairman of our committee, Senator Gregg about it. We need to
get ourselves together to pass one.
As you know from what the military has done, there are very
few side incidents as a result of this, but there have been
some, and we have to give the assurance that if people are
going to be vaccinated, if they are going to lose time at work
and they are going to lose income, they are going to be
compensated for it.
Using traditional workman's compensation isn't going to
work. We have got to get something that is going to work. We
haven't done it. It is essential if these programs are going to
be brought and get done. So I would invite your active
involvement. We want to work with the administration to get the
job done, but it hasn't gotten done yet and time is moving on.
Secretary Ridge. Senator, I appreciate your observation and
the sense of urgency that accompanies it. I think the single
largest impediment to facilitating the immunization that we all
think is important to inoculate those who would be called upon
to inoculate is the compensation program.
I know that Secretary Thompson has been working with OMB
and others, and I was under the impression that either they had
delivered or were close to delivering a compensation plan for
review of the Congress. I will check on it and report back to
you today.
Senator Kennedy. And it doesn't have to be complicated. We
have got other pieces of legislation that we could pattern
legislation after and get it done. If others are trying to
bring in other tangential issues, it is going to get
complicated, but it is important. And then eventually in bio-
shield, we will have to deal with this issue, but that is
further down the road. Let's try and get this done.
Could I raise with General Ashcroft--and let me welcome all
of you here--on the matter with asylum seekers the case which I
think you have read about in the newspapers, the Guatemalan
woman who fled severe human rights violations. Her husband was
an ex-member of the Guatemalan military. She had been
repeatedly raped and threatened with death. She sought the help
of the Guatemalan government, but it failed to protect her.
This is the matter of what they call the RA regulation.
We had important protections under Attorney General Reno in
terms of particularly women who had suffered the most egregious
kinds of situations in terms of brutality. We understand now
that your Department has taken a different position, or not, on
these matters?
Attorney General Ashcroft. Let me see if I can recollect
what I believe has transpired in that matter without commenting
on the merits of the case because the matter is before me as
Attorney General.
Attorney General Reno brought the case out of the
immigration appeals setting into her own authority for
decision, during which time she began a process of reviewing
the regulations. After regulations were reviewed, the case was
sent back to the Board of Immigration Review and the
regulations which were being formulated have been placed on
hold, given the transfer of the authority in the Department of
Justice to the Department of Homeland Security for handling
immigration matters.
I have, as a result, pulled this matter--before the
transfer, I pulled this matter back for my own personal
decisionmaking and the regulations are now under consideration
at the Immigration and Naturalization successor in the
Department of Homeland Security, with the assistance and
collaboration, I believe, of the Justice Department on those
regulations.
The decision made regarding this specific case will be made
by me as Attorney General in my responsibilities in handling
appeals. The regulation is in the process of formulation and it
is being developed by the Department of Homeland Security with
the assistance of the Justice Department.
Senator Kennedy. Well, just basically, as I understand it,
cutting to the chase on this, she obtained asylum in 1996, but
the Board of Immigration Appeals reversed that decision. The
Board found that she did not meet the criteria for asylum
because her abuse was not perpetrated by her government and
because her husband's abuse was directed at her individually
rather than a larger social group.
That was what was changed by Attorney General Reno,
vacated, in order to protect her from being forced to return
after she was able to escape the murder threats from her
husband, the beatings that had taken place and the rest. That
is what is going to be back before you, whether that position
that was taken by the previous administration will be taken.
I urge you to sustain the earlier--I know my colleague,
Senator Leahy, and others are interested in it. It is, I think,
an extraordinary matter, particularly when we have these kinds
of situations that are--many women are the victims of these
honor killings, sexual slavery, and domestic violence. If we
are going to be denying them protection under the new policy, I
think it is a dangerous alteration and change and we ought to
know about it.
Let me just ask you in a general way, between Secretary
Ridge and Attorney General Ashcroft, who is in charge of our
immigration policy now.
Secretary Ridge. As of March 1, Senator, that
responsibility is transferred to the Department of Homeland
Security.
Senator Kennedy. I notice that Attorney General Ashcroft,
as I understand it, is still issuing regulations on immigration
policy. Your Department has ceased now from any kind of
regulations?
Attorney General Ashcroft. I think we are assisting by way
of assistance in regulations. I don't believe we will be
promulgating regulations generally. There is a part of the
appellate process for review of immigration decisions which
stayed at the Department of Justice.
The most recent of the regulations we have issued was a
result of the disaggregation of the regulations, some which
would stay Department of Justice regulations relating to those
appeals, the others being the rest of the immigration
regulations which would have followed the entire function,
absent that appellate function, over to the Department of
Homeland Security.
Senator Kennedy. Well, as I understand it, last Friday the
Justice Department issued a final rule asserting that it
continued to have jurisdiction over substantial areas of
immigration. I think it is going to be important to know where
responsibility is going to lie in terms of the regulations.
Attorney General Ashcroft. Absolutely.
Senator Kennedy. Let me get to the----
Senator Specter. Senator Kennedy, your time has expired,
too.
Senator Kennedy. I would like to submit questions, if that
would be possible.
Senator Specter. Of course, and I am reluctant to interrupt
you and it may be that there will be extra time because there
are no other Senators present. Senator Chambliss is next in
line.
In the absence of any other Senators, if you want to
proceed with another question, why don't you do that?
Senator Kennedy. Well, I would, just on the Haitian
refugees. I guess, General Ashcroft, if I could, just on this
part, even in the areas of the Haitian refugees when they are
found to have been granted asylum, even when there is no fear
of their fleeing, they are continuously detained, unlike any
other group. The question is why.
To be honest about it, I haven't given you the question
before. It is a technical question, but enormously important.
If you want to give me an answer, I would welcome it. If you
want to give me----
Attorney General Ashcroft. I can give you a general
response, but then I will be pleased to followup in writing.
Senator Kennedy. All right.
Attorney General Ashcroft. The detention for those who are
in violation is based upon a potential that they flee. When you
have mass migrations and there are pending applications, from
time to time our Government has decided that those who are the
subject of pending applications provide such a risk of non-
compliance in the event the application is denied that an
unusual or a different policy is adopted.
I will be pleased to respond to you fully in regard--I
believe you are making reference to a group of Haitians that
came about----
Senator Kennedy. Haitians that have been actually granted
asylum, and this matter is being appealed. It is many months in
terms of appeal, and without any fear of fleeing, they are
continually detained. It is the only group that we do that to.
It seems to be to be unfair.
Attorney General Ashcroft. I will be happy to report back.
Senator Kennedy. I will followup with a question that will
spell this out in detail, but if you could look at it, I would
appreciate it.
Attorney General Ashcroft. Thank you.
Senator Kennedy. I thank the Chair.
Senator Specter. Thank you, Senator Kennedy.
Senator Chambliss is up next and will be chairing in the
last portion of the hearing. Senator Hatch had agreed with the
witnesses to conclude the hearing by 12:30.
Before I depart, Secretary Ridge, one inquiry about the
coordination of analysis of intelligence information. I was
pleased to see the President has issued an executive order
coordinating all of those matters with the Central Intelligence
Agency.
You and I have had extensive discussions in the past, with
my view having been and still is that the appropriate
institution for that responsibility is the Office of Homeland
Security. We are going to be considering that in the
Governmental Affairs Committee, where I also serve.
We will be taking a look at what the experience has been,
and especially as to what the budget has been, so much of the
budget controlled by the Defense Department, but we will be
anxious to see how it all works out. Institutionally, you have
got the responsibility and there are many of us who feel you
ought to have the authority.
Senator Chambliss, the floor is yours, and the presiding
officer-ship.
Senator Chambliss. [Presiding.] Thank you, Senator.
Gentlemen, let me first of all just say that as an
oversight committee it is our job, of course, to look over your
shoulder, to criticize you when you need to be criticized. We
probably go overboard in doing that all too often, and I have
certainly done my share of it.
But when you have successes, we need to compliment you and
the success we had over the weekend in fighting the war on
terrorism was a joint effort on behalf of all of you, as well
as Director Tenet. And I am sorry he is not here to hear this,
too, because when you do have success, we need to thank you for
the good job you are doing.
I hope you will express to all the folks who are working
under you our appreciation for their continuing efforts. They
have got a long way to go, but this is the kind of success that
sure makes all of us feel better, as I know it makes you and
our Commander-in-Chief feel much better about the war that we
are waging.
All of you know that my main focus over the last year-and-
a-half has been on the issue of information-sharing from a
primary intelligence perspective. We have debated and argued
over what should go into the bill creating, Secretary Ridge,
your department, and I couldn't be more pleased to have that
department stood up than to have it done over the past weekend.
I just wish it had been three or 4 months ago, but we are glad
to get it up and going now, with the dragging on of the
legislation that we had to go through.
With respect to information-sharing, I want to direct this,
Director Mueller, to you and to Secretary Ridge primarily. Bob,
you know that I have had this problem regarding the stovepipe
mentality within all agencies. Senator Specter has again
reminded us this morning of some of the practical problems that
we had regarding memos that were issued in your department.
I want you to tell me how you are carrying out the fact of
getting away from that stovepipe mentality, sharing information
internally as well as horizontally with other agencies.
Secretary Ridge, I have had some conversations with some of
your folks about the establishment of a plan for sharing of
information all the way down to the State and local level. I
would like for you to tell us where you are with that, what is
your time line on that.
If I could hear from both of you, please.
Mr. Mueller. Let me go ahead and start and talk about what
we are doing in the Bureau. One of the things we have not done
in the past is take information we have and put it in reports.
In the intelligence community, traditionally there have been
reports officers. So you take information, bits of
intelligence, strip off the sources and methods, and produce an
intelligence product for the intelligence community.
Since September 11, we have established a reports officer
corps to do that, and we want to extend that all the way to the
field so that we have in each of our field offices reports
officers that can take information and put it in the format
that will enable it to be distributed not just amongst the
Federal agents, but also the State and local agents.
Senator Chambliss. Are those reports officers still in the
process of being established or have you already got that done?
Mr. Mueller. We already have, I think, 12 to 15. We have
got another 20 back at headquarters that are in the background
phase, and we hope to extend that throughout the country.
We also have dramatically increased our analysts, taking in
25 analysts from the CIA that have helped us since September
11. And with that analytical capability, with the reports
officer capability, that gives us the individuals, the people,
that can assist us in the flow of information.
But what is critical to our success is to have the data
base structure and the foundation so that our data base
information goes into a modern data base that can be the
foundation for not only exchanging information within the FBI,
but disseminating information throughout the Federal law
enforcement arena as well as the State and local arena.
Hopefully, by the end of this year we will be in that
position where we have a modern data base structure where most
of the information can be made available to others in the
intelligence arena or the law enforcement arena, and we by the
same token can have access to other data bases.
So a substantial portion of our success will be dependent
on having an IT structure that enables us to share information
horizontally, as opposed to doing it by paper vertically, which
is our current situation.
Secretary Ridge. Senator, we have been tasked in the
Department of Homeland Security to develop a protocol to share
with State and local law enforcement the kind of information
that is inherent to our basic responsibility, and that is
dealing with the vulnerability of critical infrastructure. The
three individuals who primarily will be leading that department
have been identified. They have not been publicly announced.
They have been going through the process of being vetted so
they can take on that position.
We will work in conjunction with our colleagues at the FBI,
with whom we have got a very close daily collaborative working
relationship, to develop that protocol because there are times
when we deal with the same groups, but provide information
either to disrupt terrorist activity or information they need
to secure a particular piece of infrastructure.
So the responsibility to develop that plan and that
protocol is ours. It will be also reflected in the kind of
organization we ultimately set up. As we mentioned earlier in
my remarks, we are talking about reconfiguring many of these
agencies in a more regional approach as part of that
consideration as to whether or not we would go to a regional
approach, whether that facilitates our ability to collaborate
with the State and local officials, including law enforcement
officials, and our ability to facilitate the analysis of both
information and the protection of critical infrastructure.
So it is very much on our minds. It is one of the highest
priorities of this unit. We have identified the individuals who
will be leading the unit. We continue to work with our
colleagues in the FBI to develop a protocol that will meet our
mutual needs.
Attorney General Ashcroft. Senator, might I just add a
couple of things? The number of joint terrorism task forces at
the FBI has been expanded, and they are key to this
information-sharing so that you have representatives of law
enforcement working together all around the country.
The second point that I would make that I think is very
important about what the FBI is doing is that there is underway
a program for training the FBI in sharing information and
training local officials in receiving and exchanging
information. Within the next 18 months, I believe we will be on
target for training about 40,000 people in that exercise.
So if you want to do something, you train for it and you
put it in your institution, and Director Mueller has done that
very, very thoroughly not just in the way the reports are
configured and distilling the information to make it available
for transmission, but actually training and using the structure
to get the word out.
Senator Chambliss. I want to go to Senator Feingold because
my time is up, but let me ask you just a quick yes or no on
that particular issue.
Mr. Attorney General, is the funding for that training of
those State and local officers over and above the $3.5 billion
that has been allocated to our first responders?
Attorney General Ashcroft. I believe that it is.
Senator Chambliss. Thank you.
Senator Feingold.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman.
Let me first sincerely commend the three of you for many of
the recent successes in the fight against terrorism,
particularly the recent arrest of Khalid Shaikh Mohammed. I
think it was a very heartening moment for all Americans.
One of the most vital responsibilities of Congress is to
ensure that the powerful tools we give to law enforcement are
used effectively and appropriately. And while it is a start,
one hearing with Attorney General Ashcroft, Secretary Ridge and
Director Mueller does not end the Senate's role of oversight. I
just want to echo Senator Schumer's, I think, very appropriate
request that each of you, if at all possible, return for a
separate hearing. I hope we can have a commitment to that
effect.
Let me also underline what Senator Leahy said about a
sequel to the USA PATRIOT Act. At a hearing last year, I asked
a deputy assistant attorney general at the Department about
rumors that such a bill was being considered. She testified
that various proposals were being considered, but nothing
concrete had been developed.
She also did agree, General, that the Department would
provide us with some sense of where you were heading on this.
So I was concerned and really fairly disturbed to learn
recently that a draft bill has been prepared and circulated
within the administration. It is absolutely crucial that you
consult with Congress in a timely manner in developing such
legislation.
As you know, I thought we moved too quickly even on the USA
PATRIOT Act, but at least there was some justification for such
unusual haste in that case. I think it is harder to argue that
in this case, given the fact that we asked for an opportunity
to participate months ago. So let me respectfully urge you to
start communicating with us today if you have legislative
proposals that you would like us to consider in this regard.
Let me also comment briefly, General Ashcroft, on what you
said about the Department's successes in court. I just want to
clarify a few points. You said the Department's withholding the
names of people detained for immigration violations after
September 11 was sustained. In fact, a Federal court ruled that
the Department should release the names of the immigration
detainees and that decision is currently on appeal.
On the issue of closing immigration hearings, there is, in
fact, a split between the Federal appellate circuit courts.
While the Third Circuit has upheld the Department's closing of
immigration hearings, the Sixth Circuit ruled against the
Department, finding that a blanket policy of closing hearings
without a particularlized showing of why an individual's
hearing should be closed is, quote, ``odious to a democratic
society,'' unquote. So I remain troubled by the positions the
Department has taken in these cases and I respectfully urge you
to reconsider them.
Secretary Ridge, I am glad you mentioned that prevention
was the leading priority, as it must be. I am concerned that in
our fight against terrorism, this administration is not doing
enough for our Nation's first responders, the men and women who
work on the front line of our neighborhoods and communities.
If our fight against terrorism is going to be effective, we
need to ensure that the necessary resources are delivered to
them, and I am extremely concerned that the new money we
provided in the latest budget for first responders is only
about $1.3 billion out of a budget of over $390 billion. That
is not sufficient for a top priority; it is not enough to
ensure that our first responders will be able to successfully
confront the new challenges facing them.
Let me turn to one other subject for my questions. The FBI
and a few police departments have had a long and troubling
history of spying on law-abiding Americans, like civil rights
activists and anti-war protesters, Americans who were simply
exercising their First Amendment rights to political
expression.
Police departments in cities like New York, Los Angeles,
San Francisco and Seattle participated in these abusive
surveillance tactics, and recently the Denver Police Department
has joined the list. It has been revealed that the Denver
police spied and maintained files on over 200 organizations and
over 3,200 people. The police labeled nuns, peace activists and
other activists as, quote, ``criminal extremists,'' unquote,
maintaining information in a computer data base that could be
then shared with neighboring police departments.
Mr. Attorney General and Mr. Mueller, as I hope you can
appreciate, in an era of terrorism being labeled a criminal
extremist, or even tagged as a suspicious person in the
government data base, can have very serious consequences.
Consent decrees played an important role with regard to these
issues. They placed important restrictions on police spying
activities, for example, requiring a police officer to have
specific information about criminal activity before
investigating a political group.
General the draft of PATRIOT Act II, however, would
automatically end these consent decrees that were put in place
to protect Americans' First Amendment rights. Mr. Attorney
General, can you cite an example of a terrorist plan that went
undetected because local police had their hands tied by a
consent decree placing limits on their domestic spying
capabilities?
Attorney General Ashcroft. Senator, with your permission, I
would like to respond to the suggestion that there is a PATRIOT
Act II. When individuals indicate to you that if there is a
proposal, we will confer with you, I believe they are right.
There is not a proposed Terrorist Act II from the Justice
Department. No final discussion has been made with the Attorney
General about proposals. No final discussion has been made with
the administration about proposals.
Now, let me just say that we constantly are thinking of
things that ought to be considered, and we believe that it is
in the interests of the country that we think expansively and
that we have a thorough and clear debate about them,
considering the pluses and the minuses. And we don't believe
that it is appropriate to never mention anything unless it has
already been decided that it is totally OK. You can't do that;
consideration requires that.
So if someone leaks the fact that there are items under
consideration or that there is a matter of discussion, that
doesn't mean anything out of the ordinary. I hope that
characterizes the fact that we are constantly considering how
to improve.
I want to assure you that there has been no bill decided
on, no proposal decided on. I am keenly aware that the
administration cannot pass legislation. Only Members of the
Congress can pass legislation. It would be the height of
absurdity for me to have a secret matter that I hoped to make a
law without telling Congress. I mean, I simply don't understand
that. So we will confer, but I will prefer, if I can, to weed
out things that I believe are inappropriate before I come to
the Congress with an idea.
Senator Feingold. General, I would really urge you to do
that, and let me just say that you know my view that the last
time we had a USA PATRIOT Act that the kind of discussion and
airing of the issue simply did not happen. There is a debate
about whether it could have happened. I appreciate your
commitment to it happening in this case. The fact is there are
some specific proposals or possible proposals out there. I
don't think it is too early for people like you and me and
others to start discussing whether they are a good idea.
I am wondering if you could respond to my specific question
in the few seconds I have, which is can you cite an example of
a terrorist plot that went undetected because local police had
their hands tied by a consent decree placing limits on their
domestic spying capabilities?
Attorney General Ashcroft. I cannot.
Senator Feingold. Thank you, General. And, of course, I
look forward to discussing these provisions and perhaps we
could followup with a conversation about the items that we saw
at least in this draft, whatever this draft is. There are
enough items there that people are raising concerns about that
the conversations and consultations should begin now, in my
view.
Attorney General Ashcroft. Well, I don't believe that I
should start to consult and defend things which I believe are
indefensible or are not a part of something that I would seek
to propose. I guess that is my view. Until I have something
that I think is appropriate, I don't know that I should engage
in some discussion about something that we don't believe is
appropriate.
We could agree on a lot of these things that, hey, those
don't belong in our discussion.
Senator Feingold. I look forward to engaging in it as soon
as possible. Thank you, General.
Attorney General Ashcroft. Thank you.
Senator Chambliss. We have got 14 minutes left and we have
got two 7-minute questioners left.
So, Senator Schumer.
Senator Schumer. Thank you, and I very much appreciate all
three of you being here. I have a couple of questions I would
like to ask.
First, I want to followup on what Senator Feinstein had
asked you, General Ashcroft. As you know, she authored the
assault weapons ban in the Senate and I was the author in the
House. You mentioned you support the current ban. Would the
administration support reauthorizing that ban, extending it,
because if not, it will expire? Will you work for that? What
happens if in the House they decide to bottle it up? Three
questions. Would you support reauthorizing it?
Attorney General Ashcroft. As the President stated during
his campaign, the administration supports the current assault
weapons ban. The original required a study. That study
indicated that the results of the ban on gun violence were
uncertain. We are continuing the study. The administration
supports the current law.
Senator Schumer. But you are not saying whether you would
support a reauthorization bill that we hope we can pass?
Attorney General Ashcroft. The administration supports the
current law.
Senator Schumer. OK, thank you. Next question--and I am
sorry to be quick here, but we don't have much time. And
Senator Hatch is not here, but I want to reiterate strongly my
request to him earlier. This is one of the most important
subjects we face. We have three of the most important gentlemen
here and I would say that we simply don't have enough time in 7
minutes to cover the waterfront on so many of these issues.
To not only have all three together, but to limit the time
to 12:30, doesn't really give justice to the importance of
this. I am going to renew my request strongly, hopefully joined
by others here, that we be allowed to have each of you come at
your schedules--I don't care if we have to do it in the
evening--so that we can ask questions.
I take it none of you would object to coming back. Is that
fair to say?
Secretary Ridge. Correct.
Senator Chambliss. You won't have any disagreement on our
side, I am sure.
Senator Schumer. OK, great. So let the record show all
three have agreed that they would come back. Fair enough?
Secretary Ridge. Fair enough.
Senator Schumer. Will whoever doesn't want to come back
raise their hand?
[Laughter.]
Senator Schumer. Let the record show none of these three
fine gentlemen has raised his hand.
This one is for Secretary Ridge, and congratulations on
your appointment. My question is about homeland security, where
I have real worries, and let me just ask you one. I have been
very concerned about nuclear weapons being smuggled into this
country, not so much dirty bombs, although I am very concerned
with that--that is harder to guard--but real nuclear material
and bombs.
Senator Warner and I, obviously in a bipartisan move, had
put in first the homeland security bill and then in the
supplemental appropriation a proposal to fund research for
detection devices that could be placed on every crane that
loads or unloads a container, on every toll booth where
containers come through the Canadian and Mexican borders, to
develop these detection devices, which can be done according to
every expert.
The administration didn't oppose the language, but opposed
putting any money in and we ended up with $15 million, which is
not enough. And God forbid, one of these weapons is smuggled
into our country. I wear this flag everyday in memory of the
people who died in my city on 9/11 and elsewhere. This would
even be worse.
Can we get the administration's support to find the dollars
in the supplemental appropriation so that we can develop these
kinds of detection devices? No one objects to it in substance;
they just say there is no money for it.
Secretary Ridge. Well, Senator, first of all I am not
familiar with the specifics of the legislation. I will
certainly make myself familiar, but in the 2003 budget that we
inherit in the Department of Homeland Security we do have
several hundred million dollars that will be assigned to
Science and Technology Unit.
One of our highest priorities is examining some of the
research that is being presently conducted either in the
national labs or the university research labs to see if there
is anything out there that we could prototype to address the
concern that you have.
So I will just make it a point of personal interaction to
get back with you, one, to reexamine the legislation. I am not
sure at this time we need more money. Because of the 2003
budget, we do have dollars in the Department of Homeland
Security and we will see how they mesh, and if there is a
concern, I will get back to you.
Senator Schumer. I don't want to carry on an argument here
because time is so limited. The experts say it will cost about
$250 million, total, to do this. The total budget for research
for everything, I don't think is that. And so I think, with all
due respect, we need some more money for this.
And it was not the Senate, not the House, not Democrats
here, not Republicans here, but the administration in the
personage of OMB who basically knocked out the dollars. I had
an agreement. Ted Stevens supported our amendment and put it in
the Senate bill. So I hope you would look at that.
Secretary Ridge. Let me review. We did get ample funding.
We did get some dollars transferred, I think, from DoD and I
think it is important for me to take a look at whether or not
they are eligible to begin that very considerable research
initiative that you are talking about. It is something that we
have as one of the highest priorities within the department.
Let me review it and get back to you.
Senator Schumer. Could you get back to me in writing?
Secretary Ridge. Absolutely.
Senator Schumer. One final question. I am very worried--I
am worried about so many things these days, as we all here--
about shoulder-held missiles that can shoot down an airplane,
God forbid. And not only are hundreds killed, but commerce
basically comes to a standstill.
Some of us here, Senator Boxer and I, have proposed that we
spend money--we propose taking it out of the anti-missile
defense, which is a longer-range threat, but it could come from
anywhere, and outfit every commercial airliner with the
wherewithal to prevent the stinger from hitting. We do this in
our military planes. El Al Airlines does this. Obviously, they
are most concerned with security.
I am wondering if the administration would support such a
proposal to do this. It is expensive, but the alternative if,
God forbid, it happens is even more expensive.
Secretary Ridge. Senator, literally within hours, if not
the next day after the failed effort to use the MANPADs
overseas against the El Al airliner, we convened a group of
representatives from all the agencies that had anything to do,
knowledge or experience, with the MANPADs themselves, the
broadest possible group of agencies to come up with counter-
measures and to look at the existing technology, its cost, and
to basically do some work to see whether or not--it is an
extraordinarily expensive acquisition at this time, but to see
whether or not there can be some modifications to the existing
technology that might be deployed.
So, again, that is an issue that as soon as it occurs we
recognize the considerable impact on lives and on commercial
aviation and on the economy and the catastrophic consequences.
We have taken a look at some counter-measures and that is part
of the internal discussion, but there has certainly been no
commitment one way or the other to deploy them on commercial
airliners.
Senator Schumer. Thank you, Mr. Chairman. I just would ask,
No. 1, that I be allowed to submit questions in writing which
the witnesses can answer. And, second, I would just reiterate
to the Attorney General I am disappointed that the
administration will not come out and say they will support an
extension of the assault weapons ban and respectfully ask you
to consider doing that.
Senator Chambliss. Senator Edwards.
Senator Edwards. Thank you, Mr. Chairman.
Director Mueller, thank you for taking the time last week
to--we spent an afternoon together, you and some of your folks,
and it was very useful and I appreciate it very much. I want to
commend you and all the good people working hard at the FBI.
You have a very good group of people there. They are dedicated
and they care about what they are doing, and that was obvious
in the time that I spent there.
We still have a structural disagreement about the best way
to do domestic intelligence, but I want to work with you. I
want to continue to talk to you, and at least speaking from my
side I found the afternoon we spent together very useful and
thank you for doing that.
Mr. Mueller. Thank you, Senator. Thank you for coming down.
Senator Edwards. Thank you.
Secretary Ridge, I want to actually followup in a broader
way on an area that Senator Schumer just asked about. As you
know very well, there are thousands of these 40-ton containers
coming through our ports everyday, any one of which can hold
something that could do us great harm--a dirty bomb. Senator
Schumer mentioned the possibility of a nuclear weapon. A
minuscule number of those are actually inspected.
The Coast Guard estimated this past December that in order
to adequately strengthen the ports would cost--this is their
estimate--$963 million right away. The budget passed, I think,
included $250 million. In addition to that, there is a customs
container security initiative to screen cargo in foreign ports,
not our ports, but in foreign ports. President Bush's Customs
Commissioner asked for $57 million for that initiative. The
administration, though, requested nothing and the program got
just, I believe, $12 million.
With the Coast Guard and the Customs Commissioner saying we
need a much bigger investment in port security, and with
thousands of these big containers coming in through our ports
everyday, with only, as you well know, a small percentage of
them being actually inspected, are the Coast Guard and the
Customs Commissioner wrong?
Secretary Ridge. Senator, first of all, the cargo security
initiative, I believe, ended up with the support of Congress
getting additional dollars beyond the $12 million that you
talked about. I have had a good conversation with Commissioner
Bonner because we think this is one of the most effective ways
to deal with commercial shipping and container traffic. And I
am glad you are supportive of the program because we think it
will make a considerable difference in the long run.
There are various estimates as to the dollars we need to
secure our ports. I will not second-guess the amount of money
that either Rob Bonner or Commandant Collins have suggested. We
do have some flexibility that you have given us in the new
Department of Homeland Security to move some money around some
of the individual line items.
Again, it is a matter of going about the business of
building capacity not in a single year but over the next
several years, and I am confident that we can get it done. The
measure that Congress passed at the end of last session--I
think the Maritime Transportation Security Act--vested in the
Coast Guard the responsibility to do vulnerability assessments
and come up with protective measures. That is a process that is
ongoing so we can confirm the cost associated with those
protective measures.
At an appropriate time, if we can't fund the kind of effort
that we think is needed, then it would be the appropriate time
to make a specific inquiry back to you. I am not going to
suggest that their preliminary assessments are inaccurate, but
we haven't done the complete vulnerability assessment that
Congress directed yet.
Senator Edwards. Well, you understand our concern.
Secretary Ridge. Sure.
Senator Edwards. You know this as well as anybody, better
than most. The threat exists today and we are concerned about
making sure we do everything today.
Can I ask you a specific question about this? Would you
support a supplemental request for more funding for port
security?
Secretary Ridge. Senator, we are going to support a request
for additional dollars to assist us. I am confident once we
have completed vulnerability assessments and what we think is
the appropriate Federal role to secure those various ports--and
we have begun that process, Senator. We began that in the
Office of Homeland Security.
The President has just released a critical infrastructure
protection strategy that calls on the Coast Guard and the new
department to make these assessments, to see what the costs
are, and then a decision is to be made at that time.
In the meantime, the Coast Guard has considerably enhanced
the number of patrols. The collaboration at the local ports has
been substantially enhanced and it is certainly far better
security than ever before. The cargo security initiative is in
here. We are working with our friends in Canada and Mexico at a
couple of ports on a pilot program.
So we have many initiatives dealing with port security, the
ultimate cost of which is to be determined. We will have
determine whether we can absorb it in the Department of
Homeland Security and, if it is an appropriate Federal cost,
come back to you for a specific amount.
Senator Edwards. Can you tell me today what percentage of
these 40-ton containers are being inspected?
Secretary Ridge. I think Commissioner Bonner, I believe,
probably testified 3 percent, 4 percent, and the Coast Guard
did that as well. But I think it is very important, Senator, to
emphasize that these are not random searches, that there is an
algorithm, there is a method by which these specific vessels
are targeted. And so it is not as if they are randomly
targeted. They are targeted for very specific reasons. So you
take the targeting initiative, the cargo security initiative
and some of the other enhancements at our ports and we continue
to enhance our security. I just need to disabuse everyone of
the notion of just randomly boarding ships. They board them for
very specific reasons and it is based on targeting information.
Senator Edwards. Let me ask about one other area very
quickly. I know our time is about to run out. This is about
border security, if I can shift subjects just briefly.
Secretary Ridge. Sure.
Senator Edwards. I have read some reports, at least, that
we have one Border Patrol agent for every five miles on the
northern border. As you know, we have also had serious problems
with visa over-stays both before and after 9/11. Various people
have complained about both of those problems and concerns about
both those problems, and I know you are also concerned about
both of those issues.
First, I am working on and have legislation to address the
issue of more Border Patrol agents and more INS agents, both
inspectors and investigators, so that we can deal with both the
issue of patrolling our border and the issue of making sure we
identify those who are over-staying and do something about
them.
Can you tell me whether you think we are doing enough and
how much money we should be spending to deal with those two
specific issues dealing with our border security?
Secretary Ridge. Senator, the Congress has been very
supportive the past two budgets in assisting the new department
in ramping up and increasing the number of both inspectors and
Border Patrol agents. I think in the PATRIOT Act your
colleague, Senator Leahy, called for a substantial increase of
Border Patrol agents particularly on the northern border. I
think with your financial support in the 2003 budget, once we
get those people hired, we will be about 80 percent there.
I think if you take a look at the reorganization plan that
we have just began discussing and putting into effect as of
March 1, the opportunity to blend some of the Customs
inspectors and the INS inspectors and some of the Customs
investigators and Border Patrol investigators gives us an
enhanced capacity to do the kinds of things that you are
worried about.
One of the advantages of the flexibility that Congress gave
us in the bill to reorganize in the Department of Homeland
Security is we think we can put more people working with the
Border Patrol to considerably enhance their capacity to do
their job.
Again, you have been very supportive; Congress has been
very supportive with the resources we need to hire new people.
And I look forward to the opportunity to talk to you about how
the reorganization affects our ability to do a better job at
the borders.
Senator Edwards. Well, my time is up, and thank you very
much for coming. I continue to be concerned about whether we
are doing enough on both fronts, both port security and border
security, but we will continue to work with you to make sure
that we are doing what we need to do to provide the funding
that needs to be done in both those areas.
Secretary Ridge. Thank you.
Senator Edwards. Thank you, Mr. Secretary.
Secretary Ridge. Thank you.
Senator Chambliss. Gentlemen, we are getting you out almost
on time. We thank you for being here. As Senator Schumer said,
I expect we will see you again and we will look forward to
that. Thanks, guys, for the great job you are doing.
I ask unanimous consent to enter Senator Kohl's statement
in the record. Without objection, that is done.
[The prepared statement of Senator Kohl appears as a
submission for the record.]
The record will remain open for 7 days for any written
questions that are to be submitted to these three gentlemen.
With that, the hearing is concluded.
[Whereupon, at 12:35 p.m., the committee was adjourned.]
[Submissions for the record follow.]
[Additional material is being retained in the Committee
files.]
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Prepared Statement of Hon. Herbert Kohl, a U.S. Senator from the State
of Wisconsin
Even with the good news of this weekend's arrest of Al Qaeda
leader, Khalid Sheikh Mohammed, some have predicted that another major
terrorist attack is inevitable. Preventing the seemingly inevitable is
a daunting task and yet we need to do all we can to succeed. Today we
will assess the progress we have made to prevent a future attack and
discuss ways to make this country a safer place.
For example, we need to do a better job helping state and local
government protect our communities. These agencies are responding by
coordinating their infrastructures, forming task forces, and upgrading
their communications capabilities. But we all know that state
governments across the country are facing serious budget crises.
Wisconsin is one of those states and officials there are wondering how
the federal government plans to help the state prepare for a possible
terrorist strike.
Another ways to assist state and local law enforcement is to
provide them with more targeted information under the Homeland Security
Advisory System. Different regions of the country will face different
threats at different times. We can help them prepared accordingly to
assess threats and targets if the federal government gives them more
specific information and the training to use it effectively.
In addition it is far too easy for terrorists to obtain certain
chemicals and poisons--such as ammonium nitrate or cyanide--that can be
used to launch a devastating terrorist attack. We need to do more to
ensure that the wrong people do not get a hold of these substances. I
look forward to working with this panel to get it right.
Finally, while we pass more laws, we must be mindful that our best
intentions will lead to failure if we do not consider the impact of
these new laws and regulations on our freedoms.
Thank you.
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