[Senate Hearing 108-257]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-257
 
 LESSONS LEARNED--THE INSPECTOR GENERAL'S REPORT ON THE 9/11 DETAINEES

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                             JUNE 25, 2003

                               __________

                          Serial No. J-108-19

                               __________

         Printed for the use of the Committee on the Judiciary






                      U.S. GOVERNMENT PRINTING OFFICE

91-288                       WASHINGTON : 2004
_______________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800, DC area (202) 512-1800 Fax: (202) 512-2250 Mail: stop SSOP, Washington, DC 20402-0001





                       COMMITTEE ON THE JUDICIARY

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

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    19
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, 
  prepared statement.............................................    77
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
    prepared statement...........................................    79
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     4
    prepared statement...........................................    91
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................    22
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................    21

                               WITNESSES

Fine, Glenn A., Inspector General, Department of Justice, 
  Washington, D.C................................................     6
Lappin, Harley G., Director, Federal Bureau of Prisons, 
  Department of Justice, Washington, D.C.........................    26
Nahmias, David, Counsel to the Assistant Attorney General, 
  Criminal Division, Department of Justice, Washington, D.C......    32
Rolince, Michael E., Acting Assistant Director in Charge, 
  Washington Field Office, Federal Bureau of Investigation, 
  Washington, D.C................................................    28

                         QUESTIONS AND ANSWERS

Responses of Glenn A. Fine to questions submitted by Senators 
  Kennedy, Leahy and Durbin......................................    46

                       SUBMISSIONS FOR THE RECORD

Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin, letter to Attorney General Ashcroft.................    57
Fine, Glenn A., Inspector General, Department of Justice, 
  Washington, D.C., prepared statement...........................    63
Lappin, Harley G., Director, Federal Bureau of Prisons, 
  Department of Justice, Washington, D.C., prepared statement....    82
Legal Times, Stuart Taylor, Jr., June 16, 2003...................    88
Nahmias, David, Counsel to the Assistant Attorney General, 
  Criminal Division, Department of Justice, Washington, D.C., 
  prepared statement.............................................    96
Rolince, Michael E., Acting Assistant Director in Charge, 
  Washington Field Office, Federal Bureau of Investigation, 
  Washington, D.C., prepared statement...........................   104
Washington Post, David Cole, June 8, 2003, article...............   109


 LESSONS LEARNED--THE INSPECTOR GENERAL'S REPORT ON THE 9/11 DETAINEES

                              ----------                              


                        WEDNESDAY, JUNE 25, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:05 a.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, Chairman of the Committee, presiding.
    Present: Senators Hatch, Specter, Chambliss, Leahy, 
Feinstein, Feingold and Schumer.

 OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 
                       THE STATE OF UTAH

    Chairman Hatch. Good morning. I want to welcome everyone to 
this hearing, especially our distinguished witnesses.
    As we continue to strive as a Nation to combat the grave 
terrorist threat we face, it is more important than ever that 
we exercise vigilant but responsible oversight with respect to 
our law enforcement agencies. We need to do all in our power to 
ensure that these agencies are able to investigate, detect and 
prevent terrorist attacks on our country without threatening or 
undermining our country's cherished freedoms, and I am 
committed to this process. In fact, this is one of several 
oversight hearings I intend to hold in the coming weeks. As I 
have announced, FBI Director Mueller will appear before us on 
July 23rd, and I am working to arrange a hearing with Asa 
Hutchinson, Under Secretary for Border and Transportation 
Security at DHS. Later this year I will hold a general 
oversight hearing with the Attorney General himself.
    The subject of today's oversight hearing is the Department 
of Justice Office of Inspector General's Report on the 
September 11th detainees. It is apparent from the IG's report 
that in response to the September 11th attacks, well-meaning 
law enforcement officials, working around the clock under great 
stress and amid very difficult conditions, made some mistakes. 
There are valuable lessons to be learned from the report.
    My intention here today is to conduct a forward-looking 
hearing. We need to examine mistakes that were made with 
respect to the 9/11 detainees with an eye toward ensuring that 
the problems do not arise in the future should we ever face a 
similar catastrophic emergency. To this end we will hear from 
the component parts of the Department of Justice, the Bureau of 
Prisons and the Federal Bureau of Investigation. I had hoped to 
have a witness here from the Border and Transportation Security 
Division of the Department of Homeland Security, but was 
prevented from doing so because of scheduling conflicts. So we 
will do that later. However, as I mentioned, we expect to hear 
from Under Secretary Hutchinson in the next several weeks. I am 
hopeful that the witnesses here today will offer us, based on 
their firsthand experiences during the 9/11 investigation, the 
knowledgeable perspectives that we need to begin our critical 
assessment of the IG's report and recommendations.
    I want to express my deep appreciation to Inspector General 
Fine and his staff, who have worked so hard to prepare the 
comprehensive report that is before us. The report contains a 
number of critical findings and recommendations which we must 
examine carefully to ensure that we will be better prepared if 
we as a Nation face another devastating attack on our soil.
    As we consider these criticisms with 20/20 hindsight nearly 
2 years after the 9/11 attacks, it is important to recognize 
the monumental challenges our country, the Government, and in 
particular the Justice Department faced n the immediate 
aftermath of the September 11 attacks.
    In the days following the attacks our country did not know 
whether or not we faced additional even more devastating 
attacks. It was not clear how imminent any such attack might 
be, how extensive the Al-Qaeda network in the United States 
was, or whether those individuals who had contact with the 9/11 
hijackers were coconspirators or unwitting accomplices. The 
Government's response was one that I believe was correct: 
aggressive oversight and investigation and enforcement efforts 
against all persons who surfaced in the thousands and thousands 
of leads generated from the 9/11 investigation.
    It is also important to acknowledge that the 762 detainees 
who are the subject of the IG's report, were illegal aliens who 
had no right to be in this country. They were individuals who 
had violated our Nation's immigration laws, and they were 
individuals who well-intentioned law enforcement agents 
believed at the time may have had ties to or knowledge of 
terrorism or terrorists.
    But let me be clear: neither the fact that the Department 
was operating under unprecedented trying conditions, nor the 
fact that 9/11 detainees were in our country illegally, 
justifies entirely the way in which some of the detainees were 
treated.
    The IG report highlights a number of significant problems, 
many of which related to the Department's ``hold until 
cleared'' policy. I believe that the Department's decision to 
detain illegal aliens who were suspected of having ties to or 
knowledge of terrorism or terrorists, until they were 
investigated thoroughly, was fully justified by the emergency 
at hand. The stakes were simply too high to proceed any other 
way. There are, however, countless examples of illegal aliens 
being released on bond to the streets of the United States or 
returned to their country of origin only to commit future 
serious crimes against innocent Americans.
    So while I do not take issue with or second guess the 
policy, I do question the manner in which it was implemented. 
As the IG report makes clear in implementing the ``hold until 
cleared'' policy, officials failed to take adequate steps to 
distinguish promptly between aliens who were legitimate 
subjects of the 9/11 investigation and those who were 
encountered coincidentally as a result of the 9/11-generated 
leads. And because the clearance process was plagued by 
administrative logjams and paperwork overload, a number of 
detainees who turned out to have no links to terrorism were 
held longer than they should have been.
    Perhaps the clearest message in the IG report is that the 
component parts of the Department of Justice and Main Justice 
did not effectively and efficiently communicate and share 
information with one another. Logjams were not identified in a 
timely fashion. Other pressing concerns and legal issues were 
not promptly raised to the highest levels within Main Justice.
    The IG report also illustrates that the problems caused by 
the classification of detainees and the inefficient clearance 
process were magnified by the conditions in which some of the 
detainees were actually confined. Aliens classified as high-
interest detainees, who were housed at the Metropolitan 
Detention Center, the MDC, in Brooklyn, were subjected to 
highly restrictive confinement policies for long periods of 
time.
    But without a doubt, the most disturbing aspect of the IG 
report relates to the allegations of abuse and mistreatment of 
several detainees who were housed in the MDC. Let me state this 
unequivocally: abuse of inmates, no matter what the actual or 
potential charges, is wrong. It cannot be tolerated. And should 
any of the allegations in the IG's report be sufficiently 
corroborated, the responsible parties should be prosecuted to 
the fullest extent under the law.
    Inspector General Fine, I am pleased to hear that you are 
continuing to investigate these matters, and I personally 
implore you to do so vigorously.
    Although our Nation remains a target of terrorists we now 
have the ability and the resources some 20 months after 9/11 to 
assess our performance and to institute needed reforms. The 
time has come.
    As noted in the IG report, the Departments of Justice and 
Homeland Security need to develop a crisis management plan that 
clearly identifies their respective duties should another 
national emergency occur.
    Now, specific standards should be adopted that will improve 
the ability of our law and of our law enforcement officials, 
and of course, of our immigration and intelligence agencies to 
classify subjects of terrorism investigations appropriately, 
and to process and complete clearance investigations 
expeditiously; and most certainly, corrective action should be 
taken to ensure that all detainees are treated with appropriate 
respect and restraint.
    I was pleased to learn several weeks ago that the Justice 
Department has instituted, or is in the process of instituting 
such reforms. I strongly urge you to continue these efforts. 
With commitment and dedication, I am confident that the 
Department of Justice and its component parts, as well as the 
Department of Homeland Security, can eliminated the likelihood 
that the problems highlighted in the IG report will occur in 
the future.
    So we are happy to welcome the witnesses that we have here 
today to testify to us, and we will hold additional hearings in 
this area, and we look forward to hearing all of our witnesses 
who are experts here today.
    [The prepared statement of Chairman Hatch appears as a 
submission for the record.]
    Senator Leahy, we will turn to you.
    Senator Leahy. Thank you, Mr. Chairman..
    Chairman Hatch. Then we will turn to the witness.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. On June 2nd the Office of Inspector General 
released, I might say, Mr. Fine, a long and anxiously awaited 
report. This report criticized the conduct of the Department of 
Justice toward those aliens who were arrested in connection 
with the investigation into the September 11 attacks. I want to 
thank Glenn Fine and his superb staff at the Office of 
Inspector General for doing their job. They noted where we have 
gone wrong, but more than that, they also noted where we can 
improve. I know they could not conduct a truly comprehensive 
national review of every case or every setting, but what they 
did review is important.
    I think it is unfortunate we do not have the Attorney 
General or other senior witnesses from Main Justice and the 
FBI, or even outside experts who could shed light on the 
Department's performance at this hearing. Their absence calls 
into question the hearing's value. I understand that these 
people will be testifying on a whole host of things later on. 
It would be good to have them here to testify on this one 
thing, and it is particulary disappointing that the Attorney 
General is not here for this hearing. Last Monday the Legal 
Times published a column by Stuart Taylor, Jr. It was entitled, 
``Why Won't He Apologize?'' In it, Mr. Taylor, who criticized 
civil libertarians and defended many of the Department's 
policies, then added, Mr. Ashcroft ``does owe apologies to 
several hundred people for holding them far longer than 
necessary. He also owes apologies to at least 84 people for the 
unduly harsh conditions at the Metropolitan Detention Center. 
And he owes apologies to all (or almost all) 762 detainees for 
his implication...that they deserved to be treated like 
terrorists.''
    The Attorney General has declined similar requests for an 
apology even from somebody who has been strongly supportive of 
a lot of his actions, so I assume he would not agree that an 
apology is necessary. I wish he was here today to explain why 
he has not followed that call for an apology.
    I know he is a busy man. There are other busy people in the 
Cabinet. Secretary of Defense Rumsfeld and Secretary of State 
Powell are also busy. A June 9 article in Roll Call reported 
that while Secretary Rumsfeld has testified before the 
committees that authorize the Defense Department 10 times since 
2002, and appears nearly weekly for briefings for members, and 
Secretary Powell has appeared before the State Department's 
authorizing committees 8 times during that span, the Attorney 
General has appeared before the House and Senate Judiciary 
Committees only 3 times. In fact, in his most recent 
appearance, he did not even appear by himself, but with FBI 
Director Mueller and Homeland Security Secretary Ridge, and we 
were told that the time for each witness had to be limited.
    We also requested that Deputy Attorney General Larry 
Thompson, whose office is mentioned in the OIG report, and FBI 
Director Mueller testify at this hearing. I regret they were 
not invited. I understand that Mr. Thompson is at a Ninth 
Circuit meeting in Hawaii, but I also feel that it would help 
if these people were here directly, on just this issue, not on 
the whole host of other issues that they have not been 
available to testify to.
    I do welcome the witnesses who are here today, and I say to 
Inspector General Fine, you and your office handled a difficult 
assignment. I think your report carefully balances the 
pressures that the Department of Justice faced along with its 
obligations as the Nation's preeminent law enforcement agency. 
It took courage to produce a report that offers substantive 
criticisms of the Department's response to the September 11 
attacks, and General Fine, I admire you for doing this.
    As the report clearly states and as all of us readily 
acknowledge, the Justice Department and the Government as a 
whole were under tremendous stress in the wake of the September 
11 attacks. The report, however, also makes clear that the 
Department committed a series of errors that could have been 
prevented or minimized. I understand that DOJ and the 
Department of Homeland Security, which now has primary 
responsibility for immigration, have agreed to implement a 
number of the OIG's recommendations. That is good news. This 
hearing should be part of a larger oversight mission for the 
Committee, as we monitor how and whether those changes take 
place, and whether they solve the problems raised in the OIG 
report. In addition, I would renew my call for a hearing with 
FBI Director Mueller on FISA issues.
    I would also like, Mr. Chairman, to have the Committee 
consider the Leahy-Grassley-Specter Domestic Surveillance 
Oversight Act. This is bipartisan a piece of legislation as we 
might imagine.
    I have a longer statement regarding the OIG report, and, 
Mr. Chairman, I ask consent that the statement be made part of 
the record.
    Chairman Hatch. Without objection we will place it in the 
record.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Senator Leahy. Let me close by saying the OIG has performed 
a valuable service in producing this report. I was dismayed by 
the defensiveness of the Justice Department's initial reaction 
to the report, which suggested that Department officials 
somehow read the report as a vindication. These findings are 
not a vindication. They are a portrait of mistakes and policy 
misjudgments made in a difficult time. I am pleased that both 
DOJ and DHS have since recognized the wisdom of the Inspector's 
conclusions and recommendations. We all know how difficult a 
time it was, but remember, we are constantly telling the rest 
of the world about the standards they should hold themselves 
to, and the example they should follow from the United States. 
We should do more than just exhort. We should prove that we 
follow that example ourselves.
    Thank you, Mr. Chairman.
    Chairman Hatch. Thank you, Senator.
    Mr. Fine, we are happy to have you with us. We will take 
your statement at this time.

STATEMENT OF HON. GLENN A. FINE, INSPECTOR GENERAL, DEPARTMENT 
                  OF JUSTICE, WASHINGTON, D.C.

    Mr. Fine. Mr. Chairman, Senator Leahy, and members of the 
Committee on the Judiciary, thank you for inviting me to 
testify about our report, which examines the treatment of 
aliens held on immigration charges in connection with the 
investigation of the September 11 terrorist attacks.
    Our review was initiated pursuant to our responsibilities 
under the Inspector General Act as well as the PATRIOT Act, 
which specifically directs us to review claims of civil rights 
and civil liberties violations by Department of Justice 
employees and to inform Congress about the results of our 
review.
    In my testimony today I will briefly summarize the findings 
and recommendations from our full 198-page report. Before doing 
that, I would first like to discuss the context of our review.
    In response to the September 11 terrorist attacks, the 
Department of Justice and the FBI initiated a massive 
investigation called PENTTBOM to identify terrorists who 
committed the attacks, or knew about or aided their efforts, 
and to prevent any follow-up attacks. The FBI devoted enormous 
resources to this task, and the amount of information that it 
received was staggering. As the report points out, the FBI and 
the Department were faced with unprecedented challenges in the 
investigation, including the chaos caused by the attacks. The 
FBI in New York, for example, was forced to evacuate its 
offices and set up command posts in a parking garage and other 
sites. Department employees worked tirelessly and with 
extraordinary dedication over an extended period of time to 
meet these challenges and the ongoing threat of terrorism. Our 
findings should not diminish in any way the contributions 
Department employees made and continue to make to ensure the 
safety of this country.
    With respect to our review, we determined that 762 aliens 
were detained on immigration charges in connection with the 
terrorism investigation in the first 11 months after the 
attacks. These aliens had violated immigration law either by 
entering the country illegally, overstaying their visas, or 
committing some other immigration violation.
    Our review focuses on the detainees held at the Passaic 
County Jail in New Jersey, a county facility under contract to 
the INS, and at the Metropolitan Detention Center in Brooklyn, 
the MDC, which is a Federal facility operated by the Bureau of 
Prisons. We chose these two facilities because they held the 
majority of September 11 detainees, 84 in the MDC and 400 in 
Passaic. The two facilities were also the focus of many 
complaints about detainee mistreatment.
    Let me now turn to the findings of our report. Although we 
recognize the difficulties and challenges that confronted the 
Department in responding to the terrorist attacks, we did find 
significant problems in the way the Department handled the 
September 11 detainees. Many detainees did not receive timely 
notice of the charges against them. Many did not get their 
charging documents for weeks and some for more than a month 
after being arrested. These delays affected the detainees in 
several ways, from their ability to understand why they were 
being held, to their ability to obtain legal counsel and 
request a bond hearing.
    In its investigation the FBI pursued thousands of leads, 
ranging from information obtained from a search of the 
hijackers' cars, to anonymous tips called in by people who were 
suspicious of Arab and Muslim neighbors who kept odd schedules. 
Outside the New York City area the FBI attempted to screen out, 
or vet, cases in which illegal aliens were encountered only 
coincidentally to a lead and showed no indication of any 
connection to terrorism.
    However, this vetting process was not used in New York. 
Rather, the FBI in New York made little attempt to distinguish 
between aliens actually suspected of having a connection to the 
September 11th attacks or terrorism, and those aliens, who 
while guilty of violating Federal immigration law, had no 
connection to terrorism, but simply were encountered 
coincidentally to a PENTTBOM lead. For example, if an agent 
searching for a particular person on a PENTTBOM lead arrived at 
a location and found other individuals who were in violation of 
their immigration status, these individuals were arrested and 
considered to be September 11th detainees.
    The Department instituted a ``hold until cleared'' policy 
for these detainees. Although not communicated in writing, the 
policy was clearly understood and applied throughout the 
Department. The policy was based on the belief that the 
clearance process would proceed quickly and would take only a 
few days or a few weeks to clear aliens arrested on PENTTBOM 
leads. That belief was inaccurate. The FBI cleared less than 3 
percent of the 762 detainees within 3 weeks of their arrest. 
The average length of time from arrest of a detainee to 
clearance by the FBI was 80 days.
    As we note in the report, in contrast to this untimely 
clearance process, the FBI did a much better job handling 
clearances for a ``Watch List'' that was sent to airlines. The 
FBI created guidelines for who should be placed on the Watch 
List, and it worked diligently to remove people from the list 
who had no connection to terrorism. The FBI's efficient 
handling of this Watch List contrasts markedly with its 
handling of the clearance process for September 11 detainees.
    With regard to the detainees' conditions of confinement, 
our review raised serious concerns about the treatment of the 
detainees housed at the MDC. The MDC held September 11 
detainees under extremely restrictive conditions, including 
lockdown for 23 hours a day. The MDC also designated the 
detainees as witness security inmates in an effort to restrict 
access to information about them. This designation hindered 
efforts by detainees' attorneys, families, and even law 
enforcement officials, to determine where the detainees were 
being held. As a result of this designation, MDC staff 
frequently and mistakenly told people who inquired about 
specific September 11 detainees that they were not held at the 
facility, when in fact they were there.
    The MDC's policies on telephone access for detainees 
prevented some from obtaining legal counsel in a timely manner. 
The MDC permitted detainees only one legal call per week. In 
addition, legal calls that resulted in a busy signal or calls 
answered by voice mail counted as the one legal call for that 
week.
    Other conditions of confinement for MDC detainees were 
unduly harsh, such as subjecting them to having two light 
illuminated in their cells 24 hours a day.
    With regard to allegations of abuse, we concluded that the 
evidence indicates a pattern of physical and verbal abuse by 
some correctional officers at the MDC against some September 11 
detainees. This abuse consisted of actions such as slamming 
some detainees into walls, dragging them by their arms, 
stepping on the chain between their ankle cuffs, twisting their 
arms, wrists and fingers, and making slurs or threats such as, 
``You will feel pain'' and ``you're going to die here.'' 
Although these allegations have been declined for criminal 
prosecution, the OIG is continuing to pursue administrative 
investigations of them.
    In contrast to the MDC, our review found that the September 
11 detainees at Passaic had much different and significantly 
less harsh conditions of confinement. Passaic detainees were 
housed in the general population and treated like regular INS 
detainees. Although we received some allegations of physical 
and verbal abuse, we did not find the evidence indicated a 
pattern of such abuse at Passaic.
    We believe that chaotic circumstances and uncertainty 
regarding the detainees' role in the attacks explained many of 
the problems we found in our review, but they do not explain or 
justify all of them. We therefore offered 21 recommendations to 
address the issues in our review.
    Among our recommendations are:
    The Department and the FBI should develop clearer and more 
objective criteria to guide their detainee classification 
decisions.
    Immigration officials should enter into an agreement with 
the Department and the FBI to formalize policies, 
responsibilities and procedures for managing a national 
emergency that involves immigration detainees.
    Immigration authorities should document when charging 
determinations are made. Further, they should define what 
constitutes extraordinary circumstances and the reasonable 
period of time when circumstances prevent the charging 
determination from being made within 48 hours.
    Other recommendations concern issues such as requiring a 
more particularized assessment before placing detainees in such 
restrictive conditions of confinement, and better oversight 
over their conditions of confinement.
    We have asked for written responses to our recommendations 
within 30 days. We are pleased that the Department and its 
components are reviewing our recommendations carefully and are 
considering implementing many of them.
    Finally, I believe it is important to point out that the 
Department fully cooperated with our review. In addition, the 
fact that it permitted our full report to be released publicly 
is a credit to the Department. It is also a strength of the 
system established by the Inspector General Act, which allows 
internal evaluations of sensitive Government actions by an 
independent entity. Although various people have interpreted 
our report differently, in the report we attempted to describe 
in detail the treatment of the September 11 detainees, to lay 
out the facts underlying the policies that were implemented, 
and to provide the basis for the recommendations we made. I 
believe the report can have a positive impact by detailing 
these facts and making recommendations for improvement.
    That concludes my prepared statement and I would be pleased 
to answer any questions.
    [The prepared statement of Mr. Fine appears as a submission 
for the record.]
    Chairman Hatch. Thank you very much for your statement.
    One of the primary criticisms in your report is that the--
we will have 7-minute rounds, and I will interrupt at the end 
of 7 minutes in each case, so that we can all have an 
opportunity.
    But one of the primary criticisms in your report is that 
the FBI did not give the detainee clearance process sufficient 
priority following 9/11. You indicate that the FBI failed to 
provide adequate field office and headquarter staff to clear, 
coordinate and monitor the clearance process, and I understand 
that the FBI had approximately 7,000 employees working on the 
September 11th investigation, many of whom had been transferred 
from their other duties. And as you report, the Bureau received 
and pursued hundreds of thousands of 9/11 investigative leads 
following the 9/11 incident, and I understand nearly 80,000 in 
the first week alone.
    Now, since 9/11 we in Congress have given the FBI 
additional funding and personnel to fight the war on terrorism, 
but do you believe at the time of the attacks that the FBI had 
adequate resources to clear the detainees promptly and 
thoroughly, and that they could promptly and thoroughly pursue 
the critical leads that were generated as a result of the 
PENTTBOM investigation? And if so, do you believe that there 
were other tasks to which the FBI gave too much priority during 
the weeks following 9/11?
    Mr. Fine. Senator Hatch, I do believe that the FBI had 
resources, had they made it a priority. I do note that they 
devoted enormous resources to the task, but the FBI is a large 
organization. It has approximately 28,000 employees, about 
11,000 agents, and I believe that there was nothing that should 
have had a higher priority than the terrorism investigation at 
the time. I believe that had they allocated, as a management 
priority, additional resources to the task, it could have been 
done.
    I also note that there were joint terrorism task forces and 
other Federal law enforcement agencies and agents with 
clearances who could have been used to help in the clearance 
process, had the FBI chose to do so.
    I also note that there are several problems with detaining 
an alien and then moving on to the next lead without adequately 
investigating whether that alien had a connection to terrorism. 
One, it let the detainees languish without a clearance 
investigation being conducted. But second, if these aliens were 
of interest to the terrorism investigation and potentially had 
information, they should have been investigated as an 
investigative priority. It made sense to do that for the FBI, 
rather than to move on to the next one without adequately 
investigating this one.
    I also note part of the problem was that they had requested 
checks, for example CIA clearance checks, and got the checks 
back, but took months to even look at the checks. So I do 
believe that there were resources that could have been devoted 
to it and not to take them off necessarily other high priority 
matters, but some of the other matters that the FBI 
traditionally handles, and could have been devoted to this task 
had the FBI done so.
    Chairman Hatch. The second part of that question is do you 
think we need to give them more resources?
    Mr. Fine. Well, on an overall level, I think the FBI has 
enormously difficult and diverse responsibilities, and more 
resources could help them with their very, very important 
mission.
    Chairman Hatch. As you mentioned in your testimony, your 
report focuses on those aliens who were detained by the INS for 
violations of immigration law, not those detained pursuant to 
material witness warrants, criminal complaints or those 
classified as enemy combatants. This is an important point to 
make: all of the 762 detainees you examined were foreign 
nationals who had violated U.S. immigration laws. Now, in a 
report issued earlier this year, you found that the illegal 
immigrants who are not detained, frequently flee and evade 
deportation. Now, I believe you determined that approximately 
87 percent fail to honor deportation orders and slip back into 
our society. Now, given this astonishing statistic, I assume 
you do not take issue with the Department's decision to first 
verify that September 11 detainees did not have ties to 
terrorists before releasing them or deporting them. Am I right 
on that or am I wrong on that?
    Mr. Fine. No, you are right. I do think it makes sense to 
look and see whether the detainee had any suspected ties to 
terrorism, and if they did, to investigate that. I think part 
of the problem was, particularly in the New York City area, 
they did not make that determination, and anybody who was 
picked up, even coincidental to a PENTTBOM lead, and had no 
indication of a connection to terrorism, was considered a 
September 11 detainee. And then they were not adequately 
investigated in a timely fashion.
    Chairman Hatch. That was the problem. Your report also 
criticizes the way in which the FBI classified September 11 
detainees and recommends that it develop a basic protocol to 
guide its classification decision in future terrorism 
investigations that involve mass arrests of illegal aliens. 
Have you given any thought to the specific criteria that should 
be included in such a protocol?
    Mr. Fine. Well, I do not know whether we have this specific 
checklist that should be done, but I do note that the FBI has 
done that in other contexts, and it makes sense to do it so 
that people are treated uniformly so that it is not one 
situation in one area and another situation in another. For 
example, as I pointed out, in the Watch List that they created, 
they did create screening characteristics and characteristics 
that should be used to determine whether someone should be put 
on the Watch List as well. I think that makes sense, to create 
objective and uniform criteria for use by FBI employees so that 
one does not act in one way and another acts in another way.
    Chairman Hatch. With the exception of evidence suggesting 
that certain correctional officers in the Brooklyn Metropolitan 
Detention Center verbally and physically abused some of the 
detainees, which we all find deeply troubling, am I correct 
that you did not find any evidence that officials in the 
Department of Justice or any of its components intentionally 
violated the legal rights of any of the 9/11 detainees.
    Mr. Fine. No, we did not state or we did not find that 
anyone intentionally violated the law or the legal rights of 
detainees. We did find--and we point out--that there was some 
concern and some dispute within the Department about the 
legality of holding detainees for more than 90 days beyond the 
removal period. The Office of Legal Counsel subsequently opined 
that that was permissible. I note that that is still an ongoing 
legal issue in the courts. We also did note that the detainees 
who had reached the 90-day period were entitled to a custody 
review to determine whether their continued detention was 
warranted, and the INS did not conduct such custody reviews. We 
also note the abuse that you have referred to, but we did not 
find that there was intentional misconduct or an intentional 
violation of civil rights.
    Chairman Hatch. I would like you to give us any other 
further help you can give us up here as to what we might be 
able to do to assist the FBI to do a better job the next time 
around if we happen to have another incident like this or any 
other similar type incident. So we would love to have your best 
advice on these matters.
    Mr. Fine. I think one issue is the resource issues, and I 
do think the FBI could use additional resources given the many 
tasks they face. I believe that this hearing is a good thing, 
that it helps to look at the examples of what happened and try 
and make recommendations and provide impetus for improvement. 
So I think that the Congressional oversight and Congressional 
concern that is being conducted is a positive thing and can 
help improve the situation should it happen again.
    Chairman Hatch. Well, thank you. We sure appreciate your 
testimony and your willingness to be here today.
    We will turn to Senator Leahy. My time is up.
    Senator Leahy. Thank you, Mr. Chairman. I would submit for 
the record an article by David Cole that is in the Washington 
Post, and I would urge people to look especially at his 
reference to the Palmer raids and what happened after those. I 
also submit for the record the artcle by Stuart Taylor that I 
mentioned earlier.
    Chairman Hatch. Without objection, they will go into the 
record.
    Senator Leahy. I note, General Fine, your reference of 
11,000 FBI agents. I think the best way to help them is to 
resist the temptation here in the Congress to federalize more 
and more crimes. We should not federalize crimes that could 
very easily be handled by the local sheriffs departments and 
State police and local police. By allowing States to handle 
them, which they can do just as well if not better, we could 
reduce the demands on FBI resources so that the FBI can do the 
things that they are uniquely equipped to do, and in fact are 
the best in the world at doing. But that is probably for 
another hearing, although I wish at some point we could go 
through the State laws that we have federalized--and I have 
probably been guilty of voting for some myself, and find some 
way to look at which ones we could take out of the list in 
order to let the FBI do their real work.
    Your report is dated April 2003. It was not transmitted to 
Congress until June 2nd. One, would you tell us why it took 2 
months to get here, whether the text of the report changed in 
any way during that period, and if so, what those changes were? 
Secondly, when did you originally complete your report and 
submit it for comment to Department officials; how long did 
that comment period last, and how does that compare to the 
average comment period for one of your reports?
    Mr. Fine. We originally completed a draft of the report in 
March, and consistent with the way we treat these reports, we 
provided it to the Department and its components for assessment 
and comment, and to let us know if there is anything that is 
factually inaccurate in that report. We received some comments, 
made some minor adjustments for accuracy, and we finished our 
report, as you pointed out, on April 29th. We then submitted it 
to the Department for its review and for its determination of 
whether they believe there was anything too sensitive in that 
report to be released publicly. There were a number of 
components that were involved with this review--the FBI, the 
BOP, others in the Department--and at the end of the review 
period, they did ask us to take out a very few phrases and 
words that we blacked out in the report because they 
specifically identified individuals or countries, and the FBI 
considered them law enforcement sensitive.
    The report was not changed between April 29th and the time 
it was released. And as I stated in my statement, I believe it 
is to the credit of the Department that they allowed the full 
report and they did not invoke the Inspector General Act to 
block the release of the report from the time we submitted it 
to them on April 29th.
    Senator Leahy. I understand the need to block out 
particular names, and all of us on here are used to handling 
classified materials where names are blacked out in the public 
record and only viewable in a classified section, but I am 
assuming by your answer that none of your conclusions were 
changed.
    Mr. Fine. None of our conclusions were changed.
    Senator Leahy. This comment period, how did that compare 
with the comment period you normally have in such reports?
    Mr. Fine. It was slightly longer, the comment period, but I 
think the issues here were very sensitive. We do give our 
reports--and sometimes they take longer than others depending 
on the length of the report or the issues involved. I note that 
we have completed a draft of the Hanssen report, for example, 
and it is undergoing a comment period by the FBI as well. That 
is taking slightly longer than normal because of the length of 
the report and the issues involved.
    Senator Leahy. Am I correct in understanding your testimony 
to be that they did not make changes in your report, they may 
have blacked out some names, but did not make changes, or seek 
changes in your report?
    Mr. Fine. They did not make any changes in the report. They 
had some concerns about issues and impact on ongoing 
litigation. We did not change the report from April 29th to the 
time it was released. And we were the ones who actually blacked 
it out eventually. It was our report and we put in the black 
out marks that you see in the report.
    Senator Leahy. Your report makes a number of 
recommendations, and according to an article in the New York 
Times, June 13th, Department officials plan to implement 12 out 
of your 21 recommendations and consider an additional 9 for 
implementation. Do you evaluate their compliance in that 
regard?
    Mr. Fine. Well, we have not received the official response 
from them as to which they are going to implement and which 
they are not. We have asked them for a response in writing. We 
have asked for that response--I think July 11th is when we have 
asked for the response. And when we get that response, yes, we 
will evaluate the response and whether we think it is a 
sufficient response to the recommendations we have made.
    Senator Leahy. One thing that concerns me and a lot of 
people in this country is the situation of the so-called 
Evansville 8. These are a group of Egyptian men living in 
Evansville, Indiana. I have been in touch with the Attorney 
General about this. They were among the individuals held as 
material witnesses in maximum security jails. They were never 
charged with a crime following the September 11 attacks. The 
FBI in fact eventually publicly acknowledged that each of the 
men had been wrongly accused and had suffered severe 
repercussions. The small community the Evansville 8 came from 
shunned them, despite our understanding that the constitution 
means innocent until proven guilty. In this case, even when 
declared innocent, many of the community considered them 
guilty. A lot of members of Congress have voiced a concern that 
the Material Witness Statute, as currently drafted, invites 
such abuse. But efforts to clarify or reform that statute have 
met with disinterest in the administration. Efforts to oversee 
the basic use of the statute have been stonewalled. At least 
one Federal judge has ruled the Department is improperly using 
the statute. Another has ruled the Department is erroneously 
keeping secret basic information about the scope of the 
statute.
    I copied you on a letter I wrote to the Attorney General to 
keep you informed of the situation, in light of the fact that 
your recent report on 9/11 detainees did not include a review 
of those who were detained under the Material Witness Statute. 
Do you plan to investigate the treatment of this specific class 
of detainees, that is, the material witness detainees?
    Mr. Fine. We have not opened that kind of a review on 
material witnesses or on the actions of the Department in 
conducting the criminal investigations. I note that many of 
them are ongoing and to some extent we do not want to interfere 
with the ongoing criminal investigations.
    I also note that many of these are subject to oversight by 
courts and we try not to interfere with the courts' processes. 
So in light of that we have not opened a review of material 
witnesses.
    Senator Leahy. What about something like the Evansville 8, 
because that is not an ongoing court matter? It is not over for 
the 8. I mean their lives, particulary their economic 
prospects, have been ruined. Their standing in the community 
has been ruined. Their families are being shunned. Mistakes 
were obviously made. Is that going to be the subject of an 
investigation?
    Mr. Fine. Well, we will certainly consider that in light of 
your comments and concern, but as of now, we have not opened 
such an investigation.
    Senator Leahy. Mr. Chairman, I will submit my other 
questions for the record.
    Chairman Hatch. Thank you, Senator.
    We will turn to Senator Chambliss at this point.
    Senator Chambliss. Thank you, Mr. Chairman.
    Mr. Fine, certainly your obligation here was to do the 
oversight necessary to determine how the FBI and INS and other 
agencies acted in a very difficult time in the history of our 
country, and it was not a very enviable position that you were 
placed in. But, by the same token, it was not a very good 
position for our law enforcement officials to be in also, with 
us being attacked for the first time on domestic soil.
    With respect to the information you gathered on the 
treatment of the prisoners, I am bothered by that, as I think 
everybody should be and is. Where did you get that information? 
Where did it come from?
    Mr. Fine. We got it from a number of sources, some of them 
from the detainees themselves; some of them from the attorneys; 
some of them from the Bureau of Prisons, who had received 
complaints; some of them from public documents. So we received 
them from a number of different sources.
    Senator Chambliss. How about from the prisons guards and 
the prison personnel? Did any of the information come from 
them?
    Mr. Fine. The initial allegations did not, but we have 
spoken to the prison guards and the prison personnel.
    Senator Chambliss. Do they agree that that took place?
    Mr. Fine. The officers who were the subjects of the inquiry 
denied it, as we point out in the report. There are at least 
some that have confirmed it, but the subjects have denied it.
    Senator Chambliss. I notice that the complaints of prisoner 
treatment were primarily at the Brooklyn MDC Center. Did you 
make any investigation as to whether or not the folks who were 
accused of this type of activity had any friends, relatives, 
family members who were killed on September 11?
    Mr. Fine. I believe that some of them did, and they let us 
know that.
    Senator Chambliss. So it was still a pretty emotional 
feeling on the part of those folks with respect to anybody who 
might have been involved.
    Did you take into consideration the fact that there is a 
great likelihood that because of the actions of the FBI both 
here with respect to these detainees and also with other work 
that they were doing, the FBI has been pretty successful in 
having no further attacks take place within the United States?
    Mr. Fine. Yes, we have taken note of that. Everyone, I 
think, has taken note of that. That is certainly a fact.
    Senator Chambliss. I notice you state in your report that 
you do not criticize the ``hold until cleared'' policy for the 
FBI to help determine any links between a detainee and 
terrorism activities. If you support thorough FBI clearances of 
the September 11 detainees, how can you criticize the 
Department for not distinguishing which detainees were related 
to terrorism before the clearances were complete?
    Mr. Fine. I think the problem that we found was that in 
other parts of the country they made a determination: Is there 
any indication, is there any allegation, is there any evidence 
to indicate that this person is connected to terrorism, knew 
anything about, or was simply someone who was out of status who 
was confronted pursuant, coincidentally, to a PENTTBOM lead?
    In New York, that did not occur, and if they arrived at a 
place and they were looking for somebody and found others who 
happened to be there, they detained them. But they also 
considered them of interest to their investigation, and they 
did not make any determination or discrimination as to this 
person we suspect of having connections to terrorism.
    They then considered them a September 11th detainee, and 
they did not attempt to expeditiously clear them or find out if 
they had any evidence to indicate that they did have 
information connected to the attack. They moved on to the next 
lead without adequately investigating that, and that actually 
concerned us, as I mentioned, for two reasons: one, because the 
clearance process was unduly slow; and, two, if they were of 
interest and if they really believe that there was some 
indication that they had information connected to the terrorism 
attack, it made sense to investigate that.
    Senator Chambliss. Was the clearance process conducted 
solely by the FBI?
    Mr. Fine. I think it mostly was by the FBI, although I do 
believe that there was some Joint Terrorism Task Force members 
who also participated. But it was mostly an FBI activity.
    Senator Chambliss. In my role as Chairman of the House 
Intelligence Subcommittee on Terrorism and Homeland Security, 
we did a thorough investigation of the intelligence community 
and the deficiencies that allowed September 11 to happen. And 
one strong criticism we had of the FBI, as well as other 
agencies, is the fact that there was not a full and open 
sharing of information.
    Now, if the problem with respect to clearances was being 
handled by the FBI, my guess is most of the information that 
they had with respect to each individual was information 
gathered by the FBI or information that they reviewed that had 
previously been gathered.
    Did you find that there was any sharing of information with 
the FBI by other Federal agencies with respect to any 
individual detainee? And did that have anything to do with the 
length of time before these folks were cleared?
    Mr. Fine. We did find that there were attempts to obtain 
information from other agencies, particularly the CIA, where 
they asked to get CIA checks. And initially we were told by the 
FBI that that was part of the delay, that it took the CIA a 
while to get the checks back.
    But when we investigated, we found out that that was not 
the problem, that the CIA was fairly timely in getting the 
checks back. But it was the FBI who took an extremely long 
period of time in many cases to even review the checks, that 
the checks had come in and were not looked at and not reviewed.
    So I do think that there were problems in the sharing of 
information to some extent, but I believe it was a question of 
the FBI not looking at it carefully and expeditiously enough.
    Senator Chambliss. What about the INS? What was their role 
in sharing information with the FBI with respect to clearances?
    Mr. Fine. I do not believe they had much of a role with 
respect to clearances. When the FBI confronted an alien who was 
out of status, the INS would be called in to make the arrest 
and decide where the person would go, but based solely upon 
information from the FBI. And the INS was seeking information 
from the FBI. It was seeking information to be used in bond 
hearings. It was seeking information for other purposes and had 
difficulty getting any information from the FBI. Not in all 
cases, but in many cases.
    Senator Chambliss. Thank you, Mr. Chairman.
    Chairman Hatch. Thank you, Senator.
    Senator Feingold, you were next.
    Senator Feingold. There is no question that the 
investigation of the September 11th attacks presented one of 
the greatest challenges to Federal law enforcement in American 
history. And I think we can all agree that in countless ways, 
the men and women of the Department of Justice performed 
admirably in the weeks and months after the horrific attacks on 
our Nation. And for that, I and the American people will be 
forever grateful.
    That gratitude is not diminished by concern over abuses of 
power that occurred. But it should also not diminish our 
determination to understand what occurred and demand that the 
Department address those abuses and assure that they never 
occur again.
    I would like to commend and thank the Inspector General for 
his fair and candid review of the Department's conduct in the 
aftermath of September 11th. He has performed an invaluable 
service. The Inspector General's report is a powerful reminder 
to Congress and the American people of the importance of 
independent internal watchdogs in Federal agencies.
    Mr. Chairman, a year and a half ago, when this Committee 
held oversight hearings on the Department's post-September 11th 
conduct, including a hearing I chaired, this Committee asked 
questions about many of the issues raised by the Inspector 
General's report. I must say that I certainly did not imagine 
that I would 1 day be sitting here and hearing from one of the 
Department's own officials criticizing the Department's 
conduct.
    I cannot emphasize enough the significance of the Inspector 
General's report, and I again commend him for his work.
    Before I get to my questions, Mr. Chairman, I also want to 
say, in agreement with the ranking member, that I find it very 
troubling that neither the Attorney General nor the Deputy 
Attorney General are here to testify today. I know that Senator 
Leahy requested that one of them appear. The absence of a high-
level official from Main Justice frustrates legitimate and 
meaningful oversight of the Department. This is unfortunate. 
Imagine, the Attorney General or the Deputy Attorney General 
are not here to respond to an Inspector General's report about 
serious abuses within the Justice Department.
    There are inconsistencies between the abuses identified by 
the Inspector General and the Department's explanation of its 
conduct, including statements by the Attorney General and other 
high-level officials to this Committee in 2001 and by the 
Attorney General at a House Judiciary Committee hearing earlier 
this month. It obviously would have been useful to have the 
Attorney General or the Deputy Attorney General before this 
Committee that we could seek clarification of these issues from 
the Department's leaders.
    Mr. Chairman, in view of the Attorney General's absence 
today, I have sent him a letter asking him to respond to the 
questions I would have asked him had he appeared before us 
today. Mr. Chairman, I ask unanimous consent that this letter 
be made part of the record, and I ask the Attorney General to 
respond to these questions promptly.
    Chairman Hatch. Without objection.
    Senator Feingold. Thank you, Mr. Chairman. With that, I 
will turn to my first question.
    Mr. Fine, in response to your report, the Department stated 
in a press release ``that the law was scrupulously followed.'' 
Now, just so we are clear, that is still an unresolved 
question, at least as far as your office is concerned, because 
your review did not include an analysis of the legality of the 
Department's conduct. Isn't that correct?
    Mr. Fine. We did not take a position on certain aspects of 
the Department's conduct. We did not state, we did not find 
that things were illegal, but there are certain issues that are 
involved with the courts and that we did not take a position 
on.
    Senator Feingold. Your report did not conclude that the 
Department's conduct was legal, correct?
    Mr. Fine. We did not state that in our report.
    Senator Feingold. According to the Department's press 
release and the Attorney General's testimony before the House 
Judiciary Committee earlier this month, the Department cites an 
Office of Legal Counsel opinion purportedly providing a legal 
basis for its continued detention of individuals who had been 
issued a final order of removal. Yet that OLC opinion was 
issued just this year in February. It had not been issued at 
the time the Department was making these detention decisions 
during the fall of 2001 and 2002.
    On the issue of access to counsel, your report found that 
senior Department officials actively sought to undermine 
detainees' communications with counsel and consular or 
diplomatic officers as well as their families. And, of course, 
your report presents disturbing allegations of verbal and 
physical abuse of some detainees.
    Given the abuses you chronicled in the report, do you agree 
with the Department's assertion that ``the law was scrupulously 
followed''? If not, how would you describe the Department's 
conduct?
    Mr. Fine. Well, I think the whole report has to be 
reviewed, and we laid out in significant detail the issues and 
some of the concerns that people had. I know even within the 
Department there were some issues and concerns about some of 
the policies and the legality of the policies. We also pointed 
out, as you just mentioned, the Office of Legal Counsel 
opinion, which did come well after the conduct at issue, and 
that was one of the criticisms that we had, that it should have 
been considered, the legality of it, in a more careful and 
timely way at the time that it was occurring.
    We also note that there is ongoing litigation and court 
suits about this. So I do think it is important to review the 
entire report, and we tried to lay out the facts and let people 
make their own judgments about that.
    Senator Feingold. Thank you.
    Mr. Fine, as a follow-up to a question from Senator Hatch 
about whether DOJ officials intentionally physically or 
verbally abused detainees, did you find that DOJ officials or 
its component employees were aware or had knowledge that some 
detainees were experiencing verbal or physical abuse?
    Mr. Fine. We did not find that. I think there is one 
instance in the report where we mention that there was an 
allegation of abuse that was brought to the Department, and the 
Department asked to look at it--to look into that.
    What we state in the report is that the physical and verbal 
abuse, we did not have evidence that it was condoned or 
encouraged by anyone higher up than the correctional officers 
who engaged in it.
    Senator Feingold. With regard to a question Senator Leahy 
asked, just to be sure, could you tell the Committee how 
Department officials reacted to the report once it was 
completed and forwarded to them? Was there any internal debate 
about its findings, conclusions, or recommendations or the 
decision to make it public? And were you or your staff asked or 
encouraged to modify any sections of the report before it was 
finalized? I understood your testimony to be that nothing was 
changed, but I am asking about whether there were these kinds 
of conversations and concerns.
    Mr. Fine. When the report was provided to them initially 
for a factual accuracy review, there were some comments made 
about the accuracy of certain things, and there were some 
adjustments made. As to the conclusions, I am sure there were 
some concerns about the conclusions, but it was our report and 
we wrote the report, and we stuck with the report, and we stick 
with the report.
    Senator Feingold. Were you asked or encouraged to modify 
any sections of the report before it was finalized?
    Mr. Fine. There were some concerns about the sensitivity of 
it and whether it would have an impact on ongoing litigation. 
And so there were concerns about the release of some of those 
sections. We included them in there. They are in there, and we 
did not drop those issues that could have an impact on ongoing 
litigation. We thought it was important to keep--
    Chairman Hatch. Senator, your time is up.
    Let me just state for the record, I understand the desire 
to have the Attorney General appear before the Committee. You 
know, as I have said earlier, I will hold a general oversight 
hearing concerning the Department of Justice at which the 
Attorney General will have to appear as a witness. But it is 
important to note that oversight does not require the Attorney 
General at every hearing. Today's hearing is a good example. We 
have knowledgeable witnesses who can provide excellent 
firsthand information for us, which is what we are really 
after. And I urge my colleagues to take advantage of this 
opportunity to ask these excellent witnesses--
    Senator Feingold. Mr. Chairman?
    Chairman Hatch. --any questions they feel like about the 
Inspector General's report and to find ways to improve the 
Department of Justice and the Department of Homeland Security.
    Senator Feingold. Mr. Chairman, if I could just make one 
brief comment?
    Chairman Hatch. Sure--well, let me just finish my comment 
first.
    In my view, I think time spent complaining about who the 
witnesses are today is wasted time. Let's get on with the 
hearing, and then we will have follow-up hearings. I have 
mentioned I am going to have the FBI Director in on July 23rd, 
and we are certainly going to have the Attorney General. But we 
have excellent witnesses here today who will help us to 
understand this IG report, and they are firsthand witnesses.
    Yes, Senator?

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISONSIN

    Senator Feingold. Mr. Chairman, I appreciate your courtesy. 
Ten seconds on this. I certainly understand that the Attorney 
General should not appear at all the hearings, but the symbolic 
importance of an Inspector General's report about abuses within 
the Justice Department I think requires the top person to be 
here--
    Chairman Hatch. Well, he will be here.
    Senator Feingold. --to respond. But in a context--
    Chairman Hatch. So will the FBI Director.
    Senator Feingold. Mr. Chairman, if I may finish, in a 
context where that is the focus of the entire hearing, not one 
of these around-the-world hearings where we all bring up 8,000 
different issues, as we must, in a general oversight hearing. 
This is unique, this is important, and this should be the 
exclusive focus of a hearing where the Attorney General should 
respond.
    I thank you, Mr. Chairman.
    Chairman Hatch. Well, I would like the exclusive focus to 
be on the facts and what we can do about them, and we have good 
witnesses here who are experts in this area who we want to 
listen to.
    Senator Specter? We have a vote on, so we are going to 
finish with Senator Specter, and maybe if we have time, we will 
go to you, Senator Feinstein.
    Senator Specter. On these illegal immigrants who have been 
detained because they are out of status, I think it is 
important to enforce our immigration laws. But the real thrust 
here has been a security concern, and a factor which concerns 
me is whether there is some reason beyond their being out of 
status to be detained on security grounds.
    Has there been any showing that they are security risks or 
any threat? And I don't think it requires a whole lot, but I 
think there ought to be some reason to believe they are 
security risks to have them detained. Was there any such 
showing to any even minimal extent by the Government?
    Mr. Fine. I think it varied on the cases. I think there 
were some cases where there was evidence linking them to the 
terrorism or the terrorist attacks. I think the FBI will point 
out those cases. But the vast majority of them, I am not sure 
there was that indication. And what concerned us was that there 
was not that attempt to discriminate between the ones where 
there was evidence or an indication that they were a security 
threat, that they had knowledge of terrorism, that they were 
connected to terrorism, and the ones who were simply 
encountered and were out of status.
    Senator Specter. Well, if the Justice Department is making 
an approach to move against immigrants out of status, that is 
fine if they are all treated uniformly. But I think the point 
ought to be made abundantly clear that if they are really 
talking about security matters, there ought to be some showing.
    This runs through a fair number of activities, and you have 
the case of Jose Padilla who has been in custody for more than 
a year. Counsel was appointed by the court, and Padilla has not 
been permitted to talk to counsel. He has been classified as an 
enemy combatant. The counsel was appointed by the court. This 
is not Padilla retaining somebody where you might have a mob 
defendant and mob connections where the attorney would be a 
conduit to other people.
    Does your department, the Inspector General, get involved 
at all with a case like Padilla on raising a question as to 
whether there is a justifiable basis for denying access to 
counsel, court-appointed counsel?
    Mr. Fine. No, we have not and we do not. I believe that is 
a Presidential decision to make the determination that someone 
is an enemy combatant and that they are held by the Department 
of Defense. And so we as the Department of Justice Inspector 
General's Office do not get involved in those enemy combatant 
cases.
    Senator Specter. Well, there is a pretty fine line as to 
where the Department of Justice ends and the Department of 
Defense begins. And on some of these cases, they are criminal 
defendants in the criminal justice system, Department of 
Justice, and then when the problems arise, they are transferred 
to the Department of Defense.
    You have the case of Yaser Hamdi where the District Court 
for the Eastern District of Virginia questioned the 
Government's affidavit as to whether there was a justification 
for designating Hamdi as an enemy combatant. The court said it 
fell far short, and that case is now on appeal.
    Does your role as Inspector General have anything to do 
with that?
    Mr. Fine. No, it really does not. We do not get involved 
with the court processes or the litigation decision, and we 
have not opened a review of that particular aspect. I do note 
it is subject to the court and the oversight of the court.
    Senator Specter. Well, Mr. Fine, the Department of Justice 
is the entity which is fighting to preserve the President's 
enemy combatant regime, that is, including the denial of access 
to counsel. Doesn't that implicate the Inspector General where 
the Department of Justice is taking that position?
    Mr. Fine. Well, we do have oversight over the Department of 
Justice. I will note that litigation decisions by Department 
attorneys are actually not subject to the Inspector General's 
authority. They are subject to the authority of the Office of 
Professional Responsibility of the Department of Justice, who 
has authority to investigate issues involving misconduct 
related to litigation, providing legal advice, and that kind of 
strategy.
    So while we do have oversight in a broad sense over the 
Department of Justice, those kinds of particular issues have 
not been ones where we have gone behind them and second-guessed 
the Department's policy issues or litigation decisions.

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. Well, where the Inspector General is 
really intimately involved in the civil liberties issues, it 
seems to me that that is a dotted line.
    A concern I have, Mr. Fine, is this: We passed the PATRIOT 
Act and gave the Attorney General vastly increased powers. And 
the Attorney General wants to come back and have another 
PATRIOT Act. And when you have a series of cases--and I 
compliment you on your report, and I agree with you said this 
oversight hearing is very salutary.
    One of the great problems is that this Committee is so 
busy, just incredibly busy. We were on the asbestos markup for 
hours, and we are going to do it again tomorrow. We have so 
many hearings. We do not have the time to do an adequate job of 
oversight. And when these cases get into the court, there are 
very, very long delays. It would seem to me that the courts 
ought to be expediting these issues where people are in 
detention to make judgments because they bounce back and forth.
    But it also seems to me, Mr. Fine, that you ought to take a 
close look where the Department of Justice is acting, and the 
internal decision to make it to the Office of Professional 
Responsibility I would suggest does not bind you, that you have 
broad powers as Inspector General. And the Congress has been 
very active in giving those broad powers.
    When I chaired the Intelligence Committee in the 104th 
Congress, we had a big fight about creating an Inspector 
General in the CIA. And we did that because we expect you to be 
aggressive and tough. You are a governmental employee. But I 
would urge you to move into those gray areas and to cross those 
dotted lines. And I say that really to help the Department of 
Justice and to help America.
    If there is not public confidence in what is going on, and 
as 9/11 recedes, there is lesser public concern, and I think it 
is unfortunate because I think we really are at risk. And I 
think we have to have strong security measures. But when these 
detainees are treated as they are and you have a group of cases 
where people have been in detention, cannot consult with court-
appointed counsel on the statement that it may get back to the 
enemy, where there is not a statement which satisfies the court 
as to enemy combatant status, I think the Department of Justice 
would be well served by having an aggressive Inspector General 
so there is public confidence. Because when Attorney General 
Ashcroft--and he used to sit in this chair, and he was pretty 
tough on witnesses, a lot tougher than--well, not as tough as 
Senator Hatch, but tougher than I am. But you will be serving 
him very well if you try to ease the public concern so that 
when he comes back for the next PATRIOT Act we do not have a 
wave of public opposition and we can feel confident in what the 
Department of Justice is doing. And we are looking to you, Mr. 
Inspector General.
    Thank you, Mr. Chairman.
    Chairman Hatch. Thank you, Senator.
    We are going to go vote. We are going to let you go, Mr. 
Fine. We appreciate your testimony. You have been a good public 
servant. You have really done a very good job here, and, 
frankly, we have appreciated what you have had to say.
    Well, I have been informed that Senator Schumer wants to 
ask you some questions, but we have three votes, so you are 
going to get stuck here for upwards of an hour. Senator Kennedy 
also.
    So we will be back as soon as we can. We will recess until 
we can get these votes over with and I can get back.
    [Recess 11:13 a.m. to 12:12 p.m.]
    Chairman Hatch. We are going to turn to Senator Schumer now 
for 7 minutes, and if he goes over, I am going to cut him off, 
as I have done with everybody so far. So just be forewarned, 
Senator Schumer. If you would like, you can come sit by me.

 STATMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE 
                       STATE OF NEW YORK

    Senator Schumer. Thank you, Mr. Chairman.
    First, I want to thank you, Mr. Inspector General, for your 
fine report, and I guess I would like to make a few general 
comments here.
    To me, the key in all of these things is balance, and I 
have always had objections to people on both sides. People on 
the far left say, ``Never change anything. You cannot adapt to 
the new circumstances.'' People on the far right say, ``Hey, we 
can sort of throw out the whole thing.'' And in a new changing 
world, balance is careful--balance is hard to achieve because 
you are recalibrating, you have a new fact base, et cetera.
    And so I guess what I would say here is the best way to 
deal with these things, all of these changes, these sort of 
post-9/11 changes, when you are dealing with the age-old 
problems of how to balance security and liberty, is that there 
ought to be discussion, there ought to be justification. Well, 
that is first. In other words, if you are going to take away 
any liberty, there has to be a justification for it. That is 
number one.
    Number two is discussion. There should be open and broad 
discussion. I think many of the things that the Attorney 
General has done are very defensible, but he does them sort of 
by fiat. He does not first say, ``Here is the problem, here is 
what we are trying to do, I welcome comment,'' and lots of 
people just sort of go off and get overly worried because he is 
not doing as much as they had feared.
    And, third--and this is, I think, what is key here--there 
should be some rules and there should be some independent check 
that those rules are being carried out. We should not do this 
on an ad hoc basis. And I think with the detainees we can learn 
all of that.
    When it first happened, it is hard to fault DOJ that they 
believed it would take only a few days to clear detainees who 
were not tied to terrorism. And let's remember that these 
detainees were not American citizens. They have some rights. 
There are some who believe anyone should have all the panoply 
of the Constitution, whether they are a citizen or not. I do 
not agree with that. That has never been the philosophy of this 
country, and there should be some rights and there should be 
rules. But it does not mean that you get the same rights as 
being an American citizen.
    But, in any case, that is how it looked at the beginning, 
and it seemed to just go on and on and on, and people clearly 
were abused. The average length of time from arrest to 
clearance was 80 days, and for some it took more than 3 months. 
To hold people incommunicado, to not charge them with anything, 
to not allow communications for a short period of time is 
justified. We even do that with citizens, you know, for 48 
hours or 72 hours. To do it for too long a time is wrong, and 
no one came in and re-examined and said, ``Hey, this is taking 
us more than 2 weeks What do we do? What should be our rules? 
What should be our standards?''
    I hope in the future that the Justice Department will adapt 
them. There is a requirement that DOJ--there is a dispute 
whether it is legal that you cannot be held more than 90 days 
to be deported. I do not know if you think that is a legal--let 
me just ask you that. I have a few more things I want to say, 
but the one thing I want to ask you is: Do you think that is a 
legal requirement, or has that just sort of been a standard 
that can be raised or not?
    Mr. Fine. Well, there is that regulation, and it is an 
issue. But the question is whether beyond 90 days you can still 
detain an alien if you are still investigating the alien for 
terrorism.
    The Office of Legal Counsel of the Department of Justice 
opined, based on its review of the regulations and the 
Constitution, that it is permissible. Others believe that it is 
not, and it is the subject of ongoing litigation. We did not 
take a position on that, but we pointed out that as an issue, 
and an issue that should have been addressed, as you point out, 
at an early stage. I think that it is absolutely critical that 
these legal issues ought to be carefully considered at an early 
stage of the--
    Senator Schumer. And you would certainly say that given the 
experience--and, again, I am not one who wants to whip the 
Justice Department or anything. 9/11 occurred and, you know, 
those on the left who say this is just like the internment of 
the Japanese, that is way overboard. Mistakes were made, but, 
on the other hand, the two are not even comparable.
    But don't you believe that the Justice Department should 
try now to come up with some rules for future situations in 
case, you know, and say here is the amount of time you can be 
held without being informed of what the charge is, here is the 
amount of time you can be held incommunicado? And then there 
might be an escape valve for very unusual situations, but in 
those cases, I would recommend you go to some independent 
source outside of Justice, an Article III judge. This works 
with wiretaps eminently well rather than do--tell me what you 
think about that kind--in other words, if I had to learn from 
this instead of just browbeating the Justice Department, which 
I don't think is fair in this case even though mistakes were 
made, and I have great sympathy for some who were held too 
long. Every person here did violate the law, as it turns out. 
That is right, isn't it? Because they are illegal aliens.
    Mr. Fine. All but one.
    Senator Schumer. All but one. But it wouldn't be to 
browbeat the Justice Department but, rather, to say what are 
the new rules so this does not happen again, and yet we can 
protect our security. Would that be a fair summation of where 
we ought to go from here in your judgment?
    Mr. Fine. I do think it is fair to use this situation or 
use this report as an opportunity to learn lessons, as the 
title of the hearing is, to see where there were problems and 
try and avoid them in the future. That was our purpose in 
laying out the facts, and that was our purpose in offering 21 
recommendations for improvement should a similar situation, 
larger scale or smaller scale, arise in the future. So I do 
think that is a benefit of this kind of report.
    Senator Schumer. Good. There were some more serious 
allegations of abuse which trouble me, you know, slamming into 
walls, dragging by the arms, stepping on the chain connecting 
ankles, slurs and threats. How widespread was that?
    Mr. Fine. I would say that it is not the entire 
institution. It is not everyone in the MDC, and we did not find 
that there was an organized policy to condone or encourage 
that.
    We did find that there were, you know, some--evidence 
indicated that some, a handful of correctional officers did 
engage in this abuse.
    Senator Schumer. A handful means less than ten?
    Mr. Fine. I don't know the exact--I wouldn't want to say 
the exact number because it is ongoing, but, yes, I would say 
there is not a widespread pattern of abuse by most correctional 
officers at the MDC. I think that would be unfair to say.
    Senator Schumer. Right. And there was, of course--only 60 
percent, as I understand it, at MDC were notified within 72 
hours. The average time between arrest and notice of charge was 
15 days.
    Mr. Fine. At the MDC that was the average time.
    Senator Schumer. And that should be corrected, too.
    Mr. Fine. I think that is something that should be 
corrected. The INS had an unstated rule that they wanted to 
notify people within 72 hours. I think that ought to be made a 
requirement.
    Senator Schumer. Yes. But just again, because some of the 
news reports made it seem, I think--you know, when I read this 
stuff, I said, hey, some mistakes were made but they weren't so 
far out of line that this is a huge blot on our National honor 
that will be there like the Japanese interment was.
    Overall, can you give us some characterization of how good 
a job under these trying circumstances the Justice Department 
did with these detainees? I know that is hard to do, but it is 
important because, again, I think you get people on each side 
who overblow this.
    Mr. Fine. I think your comments are fair, Senator Schumer, 
in that some have taken this on one side to say--to exaggerate 
what was said in the report, and others have taken it and said, 
well, there were no problems whatsoever. I think that it is in 
the middle and that we tried to lay out in very careful detail 
what the facts were, what the problems we thought were, so that 
people could make their judgments. But I do think balance is 
appropriate, so I wholly agree with you.
    Senator Schumer. So, in other words, on a one to ten, with 
ten being egregious abuse and one being everyone fine, this is 
in the four, five, six range, maybe, three, four, five kind of 
thing? I am not asking you to give it a number. I am just 
trying to--
    Mr. Fine. I am not sure I could give it a number, but I do 
think your comments are correct, that you have to keep a 
balance of the situation that confronted the Department, the 
chaos, the uncertainties, but also look at it to see what the 
problems were.
    Senator Schumer. Right. And you--
    Chairman Hatch. Senator, your time is up.
    Senator Schumer. Just one point I would make, Orrin?
    Chairman Hatch. Make one last point.
    Senator Schumer. One more, because you will have sympathy 
with it. I am sure if you did nothing and then, God forbid, one 
of these people committed a terrorist act, all the articles 
would be the other way: What the heck? Why didn't you do it? 
You didn't move quickly enough.
    These are very easy things to guess in hindsight, and I 
think the Justice Department didn't do a great job, but under 
the circumstances, as long as they move to correct it in the 
future, the changes, you know, doesn't deserve the kind of 
opprobrium that I have heard from some quarters about this. 
That would be my view.
    Thank you, Mr. Chairman.
    Chairman Hatch. That is my view as well. I really believe--
    Senator Schumer. I told you you would like my last comment.
    Chairman Hatch. Listen, I like most everything about you 
except some of the questions from time to time.
    [Laughter.]
    Senator Schumer. Which you will not characterize.
    Chairman Hatch. I will not. I think I have done enough 
characterization. No, I care a great deal for you. I just wish 
you would be as reasonable on other matters.
    [Laughter.]
    Chairman Hatch. Mr. Fine, you have been very helpful to us 
here today. I get a big kick out of some of these people who 
think you have got to have a big show here to get to the bottom 
of oversight matters. I think you have provided us with the 
correct approach here. You have not whitewashed anything. You 
have talked very strongly about the defects and the 
deficiencies in our Justice Department and our FBI, our prison 
system, among other things, and I personally respect you very 
much. I think your report is a work of great honor and will 
help all of us to do a better job in this Government, 
regardless of ideology. And that is the way it should be. And I 
think the folks who supervise you ought to be proud of what you 
are doing, and I personally am.
    Senator Kennedy is going to submit questions for you. He 
has been called to some other things. Otherwise, we would have 
continued to wait. But we are going to let you go now, and I am 
sorry you had to wait for that extra hour, but it was important 
that Senator Schumer have his opportunity to talk to you.
    Mr. Fine. Thank you very much, Senator Hatch.
    Chairman Hatch. Thank you so much. We appreciate it.
    Now, our second panel of witnesses from the Justice 
Department is well suited to assist the Committee in conducting 
its oversight responsibilities. These witnesses from the 
Department and its component parts are those who can fully 
address the specific concerns and recommendations in the IG's 
report as well as the efforts that have been taken to address 
the problems highlighted in the report.
    Mr. Lappin is the Director of the Bureau of Prisons. He is 
the BOP official ultimately responsible for the conduct and 
management of the Federal prison system and can address any 
specific concerns Committee members have regarding alleged 
treatment of the 9/11 detainees.
    Mr. Rolince I am very familiar with. He has testified many 
times in front of the Senate Select Committee on Intelligence. 
He is one of the true leaders in this country. He performed a 
crucial role at the FBI in the days following the September 
11th attacks. At the time he served as Chief of the 
International Terrorism Operations Section in the 
Counterterrorism Division. He was actively involved in the 
overall PENTTBOM investigation, including the investigation of 
detainees described in the report.
    Last, but not least, is Mr. Nahmias. He is Counsel to the 
Assistant Attorney General for the Criminal Division. You 
cannot have better people than these three. His primary 
responsibility is the supervision and coordination of the 
Department's terrorism investigations around the world, 
particularly those associated with the Al-Qaeda organization.
    So I want to thank you all for being here today. This is a 
very important hearing, and we look forward to your testimony. 
We will start with you, Mr. Lappin.

  STATEMENT OF HARLEY G. LAPPIN, DIRECTOR, FEDERAL BUREAU OF 
        PRISONS, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Mr. Lappin. Mr. Chairman and members of the Committee, I 
appreciate the opportunity to appear before you today to 
discuss the various issues raised by the Department of Justice 
Office of Inspector General's report on the September 11 
detainees. The OIG plays a crucial role in providing objective 
oversight and promoting efficiency and effectiveness within the 
Department of Justice. We appreciate the opportunity that the 
Inspector General provides to help us continue to improve.
    On September 11, 2001, this country experienced events that 
we have never faced in the history of our Nation. In the months 
following these tragic events and continuing today, the 
Department of Justice's central mission has been protecting 
Americans from further acts of terrorism. The Bureau of Prisons 
helped in that effort and continues to play a significant role 
in the war on terrorism.
    We continue to work closely with the Federal Bureau of 
Investigation and other components on the largest criminal 
investigation in the Nation's history to bring to justice the 
individuals responsible for the tragedy of September 11 and to 
prevent future acts of terrorism.
    Within days of the terrorist attacks on September 11, the 
Bureau of Prisons was tasked with detaining aliens deemed by 
law enforcement to be of great significance to its terrorism 
investigations. In the months following September 11, we had 
185 detainees incarcerated at several Bureau of Prisons 
facilities. The Metropolitan Detention Center in Brooklyn was 
one such facility and housed a substantial number of the 
detainees. Given its proximity to the World Trade Center, the 
institution suffered some substantial disruptions to its 
operations. Nevertheless, the institution staff were able to 
keep the institution operating in a safe and secure manner.
    Beginning on September 14, 2001, the Bureau of Prisons 
received detainees who were suspected of having ties to the 
terrorist organizations. However, limited law enforcement data 
was available on these individuals; law enforcement agencies 
lacked the standard data normally used by the Bureau to assess 
detainees. Thus, to ensure the safety of our staff and the 
public, we housed the detainees under the same conditions we 
employ for other persons believed to be capable of committing 
acts of violence, directly or indirectly. It was our concern 
about the indirect actions--specifically the threat that they 
could pose to the United States by communicating key 
information or directions that could lead to further acts of 
terrorism on U.S. soil--that contributed substantially to the 
greatly restricted communication with friends, family, and even 
counsel.
    Tragically, on November 1, 2000, at our detention facility 
located in Manhattan, two detainees associated with Al-Qaeda 
brutally assaulted a correctional officer. The assault left the 
officer comatose for a number of days. He remains permanently 
impaired and will require assisted care for the remainder of 
his life. This event caused us to go back and carefully review 
many of our policies and procedures for housing offenders, 
particularly those suspected of violent tendencies. In fact, 
some of the decisions we made regarding the housing of 
September 11 detainees were intended to protect against just 
this type of event, particularly given the assailant's ties to 
Al-Qaeda.
    The OIG report regarding the September 11 detainees 
contains allegations by some detainees that they were abused by 
one or more Bureau employees. We take all allegations of staff 
misconduct and mistreatment very seriously and investigate 
every allegation thoroughly. We do not tolerate any type of 
abuse of inmates. When allegations of serious abuse are 
accompanied by credible evidence, staff members are often 
removed from contact with inmates or placed on administrative 
leave. We refer serious cases of staff misconduct for criminal 
prosecution when warranted.
    With respect to the detainees, the Bureau referred any and 
all allegations of abuse that we became aware of to the OIG. To 
our knowledge, all allegations by the post-September 11 
detainees housed at Brooklyn have either been investigated and 
found to be without substantiation or are currently being 
investigated. If these allegations of misconduct are 
substantiated, I want to emphasize that the Bureau will take 
appropriate and decisive action. However, in the 21 months 
since the Bureau began detaining individuals related to the 
September 11 investigation, the Bureau has not been provided 
with any information from the OIG that any charges are going to 
be brought against any employees or that any administrative 
misconduct has been substantiated.
    In closing, I am proud of the work of the Bureau of Prisons 
and its staff as they accepted the challenges of this truly 
unique situation. The Bureau continues to effectively meet the 
mission to protect society by confining offenders in facilities 
that are safe, humane, cost-efficient, and appropriately 
secure. We take this role and our expanding role in the fight 
against terrorism very seriously.
    Mr. Chairman, this concludes my prepared remarks. I would 
be pleased to answer any questions you or other members of the 
Committee may have. Thank you.
    [The prepared statement of Mr. Lappin appears as a 
submission for the record.]
    Chairman Hatch. Thank you, Mr. Lappin.
    We will turn to Mr. Rolince at this point.

 STATEMENT OF MICHAEL E. ROLINCE, ACTING ASSISTANT DIRECTOR IN 
      CHARGE, WASHINGTON FIELD OFFICE, FEDERAL BUREAU OF 
                INVESTIGATION, WASHINGTON, D.C.

    Mr. Rolince. Mr. Chairman and members of the Committee, on 
behalf of the Federal Bureau of Investigation, I would like to 
thank you for the opportunity to discuss the Inspector 
General's report on the September 11th detainees. I would also 
like to recognize the Inspector General and his staff for their 
efforts in putting the report together.
    The FBI is aware that delays in the clearance process led 
to some extended, but legal, detentions. I believe delays in 
our clearance process and inconsistencies in the classification 
of detainees, while unintentional, should be recognized, as 
should the fact that each of the 762 illegal aliens was 
lawfully detained. The Office of the Inspector General pointed 
out possible areas of improvement, and we are in the process of 
closely examining their findings and, in concert with the 
Department of Justice, implementing recommendations that we 
believe will improve the process in the future. We will 
certainly work with the OIG as we continue our ongoing efforts 
to improve the FBI's counterterrorism program.
    That being said, I think it is important to understand the 
context in which these detentions occurred.
    In the days, weeks, and months after the terrorist attacks 
of September 11, 2001, the FBI by necessity worked under the 
assumption based on consistent intelligence reporting that a 
second wave of attacks could be coming. We did not know where, 
when, or by whom, but we knew that the lives of countless 
Americans could depend on our ability to prevent that second 
wave of terror. The pressure placed on both law enforcement and 
the intelligence community was tremendous, and we certainly had 
more questions than answers.
    If air travel resumed, would one or more planes slam into a 
building full of people? Could the attack come in another form, 
such as chemical or biological? We had to proceed with an 
excess of caution because the consequences of releasing someone 
who really was a terrorist could have cost thousands of lives. 
And given the choice between finishing checks on those already 
in custody or locating and neutralizing the seemingly endless 
threats that were still being reported and investigated, we 
made a conscious decision to prioritize and neutralize 
potential threats first.
    In addition, given the primary goal of protecting the 
security of the American public, the FBI believed it would have 
been irresponsible to simply release individuals who not only 
were in the country illegally but also were potential threats 
or who may have crucial information related to the attacks, 
particularly given that the Federal Government had the legal 
authority to detain them based upon their illegal presence in 
the United States. In fact, the OIG report recognizes and 
agrees with the priority of prevention over investigation in 
the days following 9/11.
    In order to put the 9/11 response in proper perspective, it 
is important to understand the responsibilities of the 
International Terrorism Operations Section within the FBI's 
Counterterrorism Program in the years that preceded these 
unprecedented attacks. As Director Mueller noted recently, 
prior to 9/11 we had only 535 special agents assigned to 
international terrorism matters worldwide and only 82 agent and 
support staff serving at FBI headquarters. In spite of that 
finite staff, our response to the threats posed and the 
resultant successes should not go unrecognized. As you now 
know, Osama bin Laden and Al-Qaeda were subjects of sealed 
indictments obtained prior to the attacks on our embassies in 
Dar es Salaam, Tanzania, and Nairobi, Kenya, on August 7, 1998. 
Following those attacks, the FBI deployed over 1,000 agents and 
later secured the indictments of 23 individuals responsible for 
the deaths of 244 persons to include 12 Americans and the 
wounding of over 5,000 mostly Kenyan and Tanzanian citizens. 
The FBI in concert with the United States Attorney's Office in 
the Southern District of New York gained convictions of four 
subjects, and we await the extradition of three others 
currently in custody in the United Kingdom.
    Additionally, the FBI's International Terrorism Operations 
Section, known as ITOS, was responsible for coordinating the 
forensic deployment to Kosovo, the massive investigation and 
offshore recovery efforts following the October 1999 crash of 
Egypt Air Flight 990, the response to Al-Qaeda's December 1999 
millennium conspiracy to attack us in the United States, 
Jordan, and Yemen, and the October 12, 2000, attack on the USS 
Cole in which 17 brave U.S. sailors lost their lives.
    While those investigations consumed significant resources, 
we remained committed to and actively involved in dozens of 
extraterritorial cases to include the June 1985 Hizballah 
hijacking of TWA Flight 847 which ended in the brutal murder of 
U.S. Navy diver Robert Stetham. The United States holds three 
of the top 22 international terrorist fugitives responsible for 
that crime.
    I would be remiss if I did not point out that today we meet 
on the seventh anniversary of the June 25, 1996, attacks by 
Saudi Hizballah at Khobar Towers which resulted in the deaths 
of 19 courageous airmen. Thanks largely to the tireless efforts 
of former FBI Director Louis Freeh, 5 years after the attack, a 
painstaking and at times frustrating investigation reached a 
milestone. Thirteen individuals were indicted in the Eastern 
District of Virginia, four of whom remain on the Top 22 
International Terrorist fugitives list.
    Additionally, ITOS coordinated the FBI's response to the 
kidnappings and murders of Americans by the Abu Sayyaf in the 
Philippines and by the FARC in Colombia. In fact, on April 30, 
2002, Attorney General Ashcroft announced the indictment of six 
FARC members charged with killing three Americans in 1999. ITOS 
also coordinated the FBI's response to the killing of U.S. 
citizens over a 20-year period by the terrorist organization 17 
November in Greece. The first killing attributed to 17 November 
was the December 23, 1975, assassination of CIA station chief 
Richard Welch. Today, 19 defendants are currently on trial in 
Greece for the murder of 23 people including four Americans.
    Simply stated, Senators, the men and women in ITOS were 
fully engaged in the war on terrorism and applied every 
resource available.
    In the aftermath of the 9/11 attacks, the FBI's response 
was immediate. In a matter of hours, we had deployed to each of 
the crash sites, ordered dozens of seasoned management 
personnel back to Washington, and fully staffed a 24/7 
operation at our Command Center with up to 500 persons 
representing 30 agencies. At the height of the 9/11 
investigation, known as PENTTBOM, the FBI assigned 7,000 agents 
to assist full-time. The majority were reassigned from other 
national security and criminal investigative work. The lack of 
prior counterterrorism training and experience, although not 
recognized by the OIG, needs to be factored into this 
discussion.
    Before the month was out, we were faced with another unique 
attack--anthrax. Not knowing whether we faced a domestic 
threat, an international threat, or a follow-on attack by Al-
Qaeda, we again responded with significant resources as we 
dealt with an unknown killer or killers, first of Florida, then 
in New York, and finally here on Capitol Hill. Additionally, we 
turned our attention to the kidnapping of journalist Daniel 
Pearl and the crash of an American Airlines flight in Queens 
November 12, 2001. In order to ensure the security of the 
Winter Olympics in Salt Lake City and drawing lessons from the 
prior attack in Atlanta, we deployed over 1,100 agent and 
support personnel in addition to those assigned to the Salt 
Lake City office.
    Meanwhile, PENTTBOM became the largest and most complex 
investigation in the history of the FBI. In spite of operating 
under severe handicaps, the New York office--relocated to a 
garage on 26th Street, and lacking a proficient 
infrastructure--began a 24/7 operation utilizing 300 
investigators from 37 agencies. The 1-800 toll-free line set up 
in our Atlanta office received 180,000 phone calls from a 
shocked public eager to assist; 225,000 e-mails were received 
on the FBI's Internet site. Evidence response teams from 
throughout the country were dispatched to New York, Washington, 
and Pittsburgh.
    Nationwide we covered over 500,000 investigative leads and 
conducted 167,000 interviews. We collected over 7,500 pieces of 
evidence which were submitted for analysis. Working in 
conjunction with New York City agencies and authorities, we 
helped process over 1.8 million tons of debris for victim 
identification and investigative lead purposes, and we took 
over 45,000 crime scene photographs.
    As this massive investigation unfolded, the concern of 
follow-on attacks was critical to our thinking and to our 
development of an investigative strategy. As investigators came 
upon individuals who were in this country illegally, it was 
absolutely essential to determine to the extent possible any 
connection to the attacks and the threat posed by them, if any. 
To do otherwise would have been irresponsible, if not 
negligent.
    As for the clearing process itself, the OIG report states 
that some investigations were straightforward. That is true, 
but even so-called straightforward investigations take time. 
Many of the investigations were far from straightforward. For 
each detainee we had to conduct a preliminary investigation. 
This is more than a name check or a Lexis-Nexis search. It 
often requires getting court-approved checks for phone records 
and computer records. It may involve translation services, 
multiple interviews, surveillance, and other time-consuming 
work.
    This policy was sound. We did not know who these people 
were. Some had numerous identity documents, and others had 
failed polygraphs on questions such as, ``Did you know any of 
the hijackers?'' or ``Were you involved in the September 11th 
attacks?''
    It is also important to clarify another point which I 
believe has been significantly confused in the media, and that 
is the issue of some individuals being ``cleared'' of terrorism 
ties. The fact that an illegal alien was prosecuted for non-
terrorism crimes or deported rather than prosecuted does not 
mean that the alien had no knowledge of or connection to 
terrorism. For example, one immigration detainee who pled 
guilty to conspiracy to commit identification fraud and aiding 
and abetting the unlawful production of identification 
documents traveled overnight with two of the hijackers. The 
name and address of another immigration detainee, who pled 
guilty to identification fraud, was used by Al-Qaeda cell 
members in Hamburg, Germany, to attempt to obtain U.S. visas.
    In many cases, the Department of Justice, in conjunction 
with the FBI, determined that the best course of action to 
protect national security was to remove potentially dangerous 
individuals from the country and ensure that they could not 
return. Charges may have been withheld in such situations if, 
for example, they could have compromised ongoing investigations 
or sensitive intelligence matters.
    Many leads took us overseas and, therefore, took time to 
resolve. It would have been a disservice to the American public 
we work so hard to protect for the FBI not to check with the 
law enforcement and intelligence organizations of the countries 
of origin for name checks and traces in certain instances. 
Then, as now, we had no control over the length of time our 
counterparts overseas took to accomplish these tasks. Please do 
not lose sight of the fact that these investigations were 
taking place simultaneous with the investigation of the 19 
hijackers, the processing of the crash sites, and the 
resolution of the second wave threats.
    The OIG report concluded, ``The Justice Department faced 
enormous challenges as a result of the September 11 terrorist 
attacks, and its employees worked with dedication to meet these 
challenges.'' I am pleased that the IG recognizes the 
dedication displayed by so many in the FBI, other Department of 
Justice agencies, and our local, State, and Federal partners on 
the JTTFs throughout this country.
    At the same time, we recognize that we can always improve, 
and we have done so. Over the past 20 months, Director Mueller 
has refocused the FBI's priorities, and the Bureau has made 
great strides in adapting to its mission of preventing 
terrorist attacks. The changes we have implemented and others 
that are ongoing will ensure that should we ever face a similar 
crisis, we will handle that crisis with even greater efficiency 
and speed.
    As I mentioned earlier, the vast majority of special agents 
engaged in the PENTTBOM investigation in the early months were 
not experts in counterterrorism. Today, we have a much larger 
pool of agents dedicated to and trained in counterterrorism. We 
have greatly increased the number of strategic analysts, vastly 
improved their training through the new College of Analytical 
Studies, and provided them with advanced new software tools to 
enhance their strategic intelligence capabilities. We have 
hired nearly 300 additional foreign language translators. New 
``Fly Away Squads'' are now on standby to lend specialized 
counterterrorism knowledge and expertise, language 
capabilities, and analytical support around the country and the 
world as needed. This particular capability was utilized in 
Buffalo, Detroit, and Portland to assist local FBI offices and 
recently in Morocco to assist our counterparts in their 
investigations.
    We have new flexibility to mobilize additional personnel as 
needed. The newly created Office of Intelligence will enable 
the FBI to assess gaps, devise strategies, and implement plans 
for intelligence collection. It will help us quickly make the 
connections necessary to prevent terrorist attacks and to 
determine a subject or suspect's connections to terrorism with 
greater efficiency than ever before.
    Today, we have better coordination and information sharing 
with our partner agencies than ever before, and yet we 
recognize the need for continued improvement. The number of 
regional Joint Terrorism Task Forces has been increased from 35 
in 2001 to 66 today. The new National JTTF acts as a national 
liaison entity and transmits information on threats and leads 
from the 30 participating agencies at headquarters to the local 
JTTFs. We have CIA terrorism experts detailed to the FBI and 
our terrorism experts detailed to CIA. We are working with our 
former INS colleagues, now in the new Department of Homeland 
Security. The Bureau of Immigration and Customs Enforcement has 
and continues to play a critical role on our JTTFs.
    The FBI acknowledges that our success is measured not only 
by how effectively we disrupt acts of terrorism, but also by 
how well we protect the constitutional rights and cherished 
liberties of American citizens in the process. We will continue 
to work to find new ways to meet both of these crucial 
missions.
    Thank you, Senator, for affording me the opportunity to 
participate in today's discussion on this important topic, and 
I look forward to answering any questions that you may have.
    [The prepared statement of Mr. Rolince appears as a 
submission for the record.]
    Chairman Hatch. Thank you so much.
    Mr. Nahmias, we will turn to you.

 STATEMENT OF DAVID NAHMIAS, COUNSEL TO THE ASSISTANT ATTORNEY 
GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, 
                              D.C.

    Mr. Nahmias. Mr. Chairman, members of the Committee, on 
behalf of the Department of Justice, I want to thank you and 
the Committee for inviting me and my colleagues to appear 
before you today to participate in this hearing. I have 
submitted a full written statement which I would ask to be 
included in the record.
    Chairman Hatch. Without objection, we will put it in the 
record.
    Mr. Nahmias. As the Attorney General recently testified 
before the House Judiciary Committee, the Inspector General 
plays a valuable role in the Department of Justice in 
critiquing our performance and recommending ways in which we 
can improve. To put the most recent IG report into context, 
however, I would urge you to remember that we experienced a 
crisis of unprecedented proportions during the months that 
followed September 11, 2001.
    Beginning moments after the attacks, we took immediate 
steps to find out who had planned and executed the attacks, who 
had conspired with those terrorists, and who might be planning 
future acts of terrorism against our Nation. Senior members of 
the Department formulated a general investigative strategy in 
response to the September 11th attacks. The strategy was as 
follows:
    First, to follow each of the many thousands and thousands 
of leads generated from the September 11th investigation;
    Second, to identify individuals linked by those leads with 
the hijackers or other terrorists; to investigate those persons 
fully; and to charge persons if there was evidence that they 
had violated the law; and
    Third, to make appropriate legal arguments in court to 
detain those charged persons until such time as we concluded 
that they were not part of the September 11th terrorist 
conspiracy or any other terrorist activity.
    This strategy was built on the recognition that it can be 
extremely difficult to detect terrorists and terrorist plots 
and that every lead must, therefore, be pursued as far as 
possible, because even a single missed lead could be the 
connection to another catastrophic attack.
    The Inspector General's report focuses on 762 aliens who 
were detained, pursuant to this strategy, during the course of 
the September 11th investigation; 762 aliens out of more than 
167,000 witnesses interviewed by the FBI. All of the 762 
detained aliens were in the United States illegally and were 
lawfully detained while their ties to terrorism were 
investigated. They were all charged with violations of the 
Federal immigration laws.
    Examples of those detained include an illegal alien who was 
a roommate of one of the 19 hijackers and who also knew a 
second hijacker; and an illegal alien who admitted to the FBI 
that he had trained in terrorist camps in Afghanistan and who 
was linked to known members of a terrorist organization.
    It should be understood that under the immigration laws, an 
illegal alien in removal proceedings is not entitled to bail or 
bond as a matter of right. It is a matter of discretion.
    However, as the Attorney General stated during his recent 
testimony, the Department of Justice has no interest in 
detaining people any longer than is necessary to properly 
investigate them.
    The Attorney General has reaffirmed the judgment that this 
investigative strategy was and is sound. We came across these 
people as a result of following leads about the 9/11 attacks. 
We knew that these people were here illegally, but we did not 
immediately know the details of their activities. If we had 
released or granted bond to an illegal alien who went on to 
commit further additional attacks against the United States, we 
would have failed in our responsibility to keep this country 
safe.
    Indeed, in the past the Inspector General has issued 
reports critical of the Department's failure to protect 
citizens from violence perpetrated by previously detained 
illegal aliens who were then released, removed, or allowed to 
depart, such as the Texas railway serial killer, Rafael 
Resendez Ramirez, and one of the 1997 Brooklyn Bombers.
    In fact, just this last February, the Inspector General 
issued a detailed report that found that 87 percent of aliens 
who are not detained flee and elude their deportation orders. 
The risk after our experiences on September 11, 2001, was too 
great to take such chances.
    I would like to respond briefly to the criticism that we 
have not brought terrorism-related immigration charges against 
these aliens. These detainees were all immigration law 
violators and, thus, removable on that ground alone. Unlike in 
the criminal system, the sanction for immigration violations--
removal from the United States--does not increase if additional 
or more serious violations are alleged. Indeed, in the past, 
aliens who have been charged or detained based on national 
security concerns have then asserted claims for asylum based on 
the fact that they have been labeled as terrorists by the U.S. 
Government. The goal is to accomplish the right result--in this 
case, removal--in a manner that best protects the national 
security and uses our limited resources most wisely.
    Likewise, as Mr. Rolince indicated, just because we do not 
charge someone criminally with a terrorism offense does not 
necessarily mean that the person has no terrorist ties. As in 
the immigration context, the decision not to charge in any 
criminal case may be made because, for example, while there is 
significant evidence of terrorist connections, the evidence is 
insufficient to prove terrorist activity beyond a reasonable 
doubt. Or it may be that we do not want to reveal sensitive 
intelligence sources or because other critical intelligence is 
classified or for other reasons.
    It is also important to distinguish between our policy of 
detaining illegal aliens suspected of terrorist ties and the 
conditions of their confinement. As Mr. Lappin's testimony 
makes clear, we do not in any way condone the abuse of anyone 
who is held in Federal custody. The Inspector General's report 
discusses allegations that some specific detainees were abused 
and other problems with the conditions of confinement at one 
facility where 84 of the 762 illegal aliens were detained. As 
the Attorney General stated on June 5, ``We do not stand for 
abuse, and we will investigate those cases...We don't tolerate 
violence in holding individuals, and that is not and will never 
be a policy of our Department.''
    The Department of Justice welcomes constructive criticism. 
We are still in the process of reviewing the recommendations of 
the Inspector General in detail. I would like to note that 
before the report was issued, the Department had already made 
adjustments that are consistent with several of the IG's 
recommendations.
    In closing, I would like to emphasize four important 
points.
    First, all of these 762 detainees were illegally in the 
United States and their detentions were legally and 
constitutional valid.
    Second, it is clear that the vast majority of non-detained 
illegal aliens flee, even those who are not suspected of having 
terrorist ties.
    Third, our central mission was and is to prevent another 
terrorist attack.
    And, finally, the Department of Justice is always looking 
for ways to improve.
    Mr. Chairman, I also wanted to comment in response to 
several questions about the process by which this report was 
generated and the comments that the Department provided. I 
think it is important, because it did not come out during Mr. 
Fine's testimony, to note that from the beginning of this 
process, the Deputy Attorney General's office requested of the 
Inspector General that if he found any problems that required 
immediate attention before his report was completed, that he 
communicate those to the Department's leadership so that we 
could understand what issues were out there and take action on 
anything that needed immediate attention.
    The Inspector General in July of 2002, nearly a year ago, 
provided two comments regarding BOP processes. We reviewed 
those immediately and took action upon them. During the period 
from that time until the draft report was actually issued, we 
received no other information from the Inspector General 
regarding things that in his judgment required immediate 
attention. So I think it is important to point out that we 
treat the Inspector General process as a way of learning about 
potential problems in the Department, and we actually asked 
that while this process was ongoing, if anything that needed 
immediate attention was noted, that it be communicated to us.
    With that, Mr. Chairman, I appreciate the opportunity to be 
here and hope to be able to answer any questions you or members 
have.
    [The prepared statement of Mr. Nahmias appears as a 
submission for the record.]
    Chairman Hatch. Well, thank you. All three of you have been 
helpful here, but we have some questions for you, if you do not 
mind.
    We will put Senator Kennedy's statement in the record and 
another document that he has submitted as well. And maybe I can 
ask a couple of questions here and then turn to Senator 
Feingold.
    Special Agent Rolince, one of the main points the IG makes 
in his report is that these so-called clearance checks could 
have proceeded on a timelier basis. And while I doubt anyone 
would dispute that had the clearances occurred more rapidly and 
many detainees would have been deported sooner, it is very easy 
for us in retrospect to sit here with 20/20 hindsight and make 
observations like that. And I do not think the American people 
can or should lose sight of the enormous and unprecedented 
challenges that you outlined in your statement and that the 
Bureau faced in the weeks and months after 9/11, which is also 
one of the points mentioned by the IG.
    I know that, for example, your New York field office had to 
be relocated to a garage and at the same time was tasked with 
doing much of the leg work in the initial investigations of the 
9/11 hijackers. And one of the things I also think we need to 
understand is just what went into the Bureau decision to either 
clear or not clear a given detainee. It seems to me that once 
someone was cleared, they were gone. They were not there to be 
interviewed. They were not there to face any potential charge, 
and for all intents and purposes, they were irretrievable. I do 
not think there is any question about that.
    And so it is not surprising to me in the least that the 
Bureau would want to err on the side of caution before issuing 
any form of clearance. So I guess a starting point for me is: 
Can you explain just what went into the decision on whether to 
issue a clearance? And I think we need to know what kind of 
information had to be gathered and from where. Was this 
information available within the Bureau, or did it have to be 
gathered from outside agencies and other sources? And, 
secondly, what type of things did the Bureau look for in 
deciding whether to issue a clearance?
    Mr. Rolince. Thank you, Senator. I think you hit on a 
couple of very important points, and I think we would all agree 
it is difficult to sit in this room, much more difficult than 
it was to sit in the Operations Center or to sit in the garage 
in New York or in Shanksville, Pennsylvania, or over at the 
Pentagon and really get a sense of the urgency, on the one 
hand, and the seeming sense of despair on another, and couple 
that with the fact that we were convinced a second wave of 
attacks was coming.
    The New York office, the largest in the Bureau, also 
suffered the most catastrophic attack. It is the office wherein 
the first attack on the World Trade Center took place and the 
conspiracy to bring down the United Nations, the Lincoln and 
Holland tunnels and commit other terrorist acts occurred. They 
made a conscious decision that everyone that was arrested by 
Immigration--and all 762 of these arrests were Immigration and 
Naturalization Service arrests--would be given a full 
investigation and a background conducted, checking every 
relevant database within the FBI, the CIA, the State 
Department, Customs, Immigration. Any bank that was out there 
that may contain information on these people was checked.
    If within one of these investigations information surfaced 
to the group that did prioritize this in New York and that was 
put together specifically to do nothing but the detainee 
issues, if the authority issuing the clearance letter--in this 
case, Ken Maxwell, then the Assistant Special Agent in Charge--
decided there was something about the investigation that had 
been done that required further scrutiny by people steeped in 
counterterrorism, that it would then move over to the Joint 
Terrorism Task Force. And this touches on Mr. Fine's point 
about resources, while the FBI also has all these Joint 
Terrorism Task Forces, they could have used, and we would have 
used, and we should have used, and we did use.
    The Joint Terrorism Task Force in New York consists of 30-
some-odd agencies, over 400 NYPD detectives attached to it. So 
in a case wherein we thought there was something more that 
needed to be investigated or scrutinized, that was moved from 
the detainee squad over into the JTTF, and that took time.
    Chairman Hatch. Okay. Let me go to you, Director Lappin. 
The Inspector General's report contains serious allegations of 
physical and verbal abuse of some of the 9/11 detainees. Now, 
during his investigation, the IG interviewed detainees who 
complained of such abuses as well as correctional officers who 
had contact with these detainees.
    Not surprisingly, there are disputes about what actually 
happened and what actually occurred. Some of the detainees have 
alleged that they were abused by officers without provocation. 
In at least one instance, an officer has claimed that a 
detainee reacted violently when being moved. According to the 
IG, after 9/11 the Bureau of Prisons installed surveillance 
cameras to monitor the detainees' activities. However, the 
Bureau of Prisons did not retain these videotapes for very 
long, and it goes without saying that videotaped records would 
have been helpful in evaluating such claims of abuse or 
misconduct.
    Now, what are the Bureau's future plans with respect to 
surveillance cameras inside the BOP facilities?
    Mr. Lappin. Thank you, Mr. Chairman. Let me first state 
again for the record that mistreatment of inmates by staff in 
any correctional setting is totally unacceptable. We take all 
allegations of mistreatment seriously and do our very best to 
investigate all those allegations thoroughly.
    Considering the fact that we at times receive allegations 
of mistreatment, realizing the emotion of the situation related 
to the detainees, the staff took it upon themselves at MDC 
Brooklyn to install cameras. It was intended to record 
interactions between staff and inmates. Our policy only 
requires recording of staff-inmate interactions during an 
emergency situation, if one is available, and during a forced 
cell move or a calculated use of force in a particular case to 
remove an inmate. So what we did was actually above and beyond 
what policy requires us to do.
    However, we did record interactions between staff and 
inmates. As you can imagine, that ongoing recording resulted in 
many tapes, and certainly cost and maintenance of those tapes 
became an issue.
    Our policy on this issue was to retain tapes of those 
situations that had been brought up in reference to 
allegations. So if a detainee made an allegation, we would not 
destroy those tapes. Or if there was a use-of-force incident, 
we would not destroy those tapes.
    Chairman Hatch. Do you have the tapes now?
    Mr. Lappin. Yes, we have the tapes on some situations where 
inmates were forcibly removed from their cells, and in some 
cases, at least one, where allegations were made, we have 
retained those tapes.
    We set a 30-day time frame because it is our policy that an 
inmate has 20 days to file a complaint or a grievance with the 
warden on treatment or any other issues. We extended that to 30 
days just in case someone brought it to our attention. But 
after a 30-day period, if there were no allegations, at that 
point we saw no need to continue to retain those tapes that did 
not have related allegations or uses of force attached to them.
    Chairman Hatch. Okay. My time is up, but I am going to 
submit questions, and we will keep the record open until 5 
o'clock today for any members of the Committee to submit any 
questions or statements that they care to submit. I will put 
Senator Grassley's statement in the record as well.
    We will turn to Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman.
    Let me just say to all of you, thank you, and I want you to 
know that I sincerely admire what you are charged with doing, 
the incredible difficulty of what you had to do after 9/11, and 
your continuing responsibilities to prevent terrorist attacks 
on the American people. I do not think there is any other more 
important job in this country, and that is sincere.
    We do have to ask you questions about this report because 
it is troubling, and I want to first ask Mr. Nahmias, if I 
understand your testimony correctly, neither you nor the 
Department refute any of the findings, conclusions, or 
recommendations in the OIG report. Is that correct?
    Mr. Nahmias. Senator, I think with regard to the findings 
and the recommendations, we have learned a lot from the report, 
and we may quibble over minor details, but there is nothing at 
all significant about the report that we refute. We have found 
it to be very educational for us, and with regard to the 
recommendations, we agree in principle to all the 
recommendations, and we are preparing detailed responses as the 
IG has requested in the next couple weeks.
    Senator Feingold. I appreciate that answer.
    Mr. Rolince, I understand that you filed affidavits in the 
bond proceedings of September 11th detainees who were held on 
immigration violations. How many of the 762 INS cases, with 
regard to how many of those did you submit an affidavit?
    Mr. Rolince. Senator, I do not have an exact count. I could 
certainly get that for you. And I moved away from the process 
in January of 2002 when I moved over to the Washington field 
office. So my number would not be the total number that I think 
you are probably looking for. I could give you a rough 
approximation of maybe 20 to 30.
    Senator Feingold. Okay. I am told that in your affidavit 
you articulated a theory for the investigation called the 
mosaic theory, which, as I understand it, is the idea that 
there are different pieces of an investigative puzzle and a 
particular person plays a particular role in the big picture, a 
crime or, in this case, terrorist activity. Is that right?
    Mr. Rolince. Yes, sir.
    Senator Feingold. In how many of those INS cases in which 
you submitted an affidavit did you have evidence of criminal 
activity concerning the specific individual whom the Department 
was seeking to hold without bond?
    Mr. Rolince. Again, I could not give you an exact number. I 
can certainly find that for you. But there were instances when 
we became aware of suspicious activity on the part of different 
individuals. Two people down in Texas that were taken off a 
train, for instance, comes to mind. They had box cutters and 
shoe polish and an inordinate amount of money. And it just 
looked suspicious on the front end. We did not get a lot of 
cooperation, but ultimately they would plead guilty to charges 
relative to that money. And I believe there were some sort of 
bank fraud charges.
    So there were a finite, a very finite number of cases 
wherein information of criminal activity came to our attention, 
and in order to be able to fully vet that information, we would 
put one of those letters before the court.
    Senator Feingold. But as I understand your answer, there 
were quite a few of these affidavits where there was not 
evidence of criminal activity. Is that correct?
    Mr. Rolince. That is correct. The vast majority of those 
letters went forward simply because we were not convinced that 
we had all the answers to the questions or all the record 
checks were back, and we clearly erred on the side of caution.
    Senator Feingold. So the Government submitted affidavits in 
INS cases in support of the Government's desire to deny bond, 
and in many of these cases, you did not have specific evidence 
of criminal activity or terrorist activity with regard to the 
individual with respect to whom you are seeking to detain?
    Mr. Rolince. That is correct. And I think it is also worth 
pointing out, sir, that on occasion those letters were brought 
to me and I read them, and I refused to sign them, for lack of 
a better word, because I just did not feel that we had 
justified and uncovered enough information to ask a judge to 
extend that.
    Senator Feingold. But in many cases, they were signed?
    Mr. Rolince. Yes, sir.
    Senator Feingold. Okay. Did you know that in almost every 
one of these cases the individual did share the same religion 
or ethnicity as the September 11th hijackers?
    Mr. Rolince. Thank you very much for that question, 
Senator. No, I did not know that. I should not know that. There 
is no reason that we should ask that. It did not play any role 
whatsoever in the 9/11 investigation, and I would submit that 
it should never play any role whatsoever in any FBI 
investigation, with relatively few exceptions. Maybe in the 
hate crime area, you might want to know that. But I 
categorically--
    Senator Feingold. Would it be fair to say that--you know, 
to take two other very large immigrant communities in the 
United States, Mexican nationals or Chinese nationals, were 
there members from these groups picked up and detained on 
immigration violations without bond in connection with the 
September 11th investigation?
    Mr. Rolince. There were members of other nationalities who, 
upon our making a determination on the Immigration and 
Naturalization Service making a determination that they were 
out of status, they were, in fact, arrested. For instance, 
there were two individuals of Russian ethnicity who I am aware 
of were observed by a motorist filming within either the 
Lincoln or the Holland Tunnel. The police pulled them up coming 
out at the end and they were arrested.
    Senator Feingold. Would it be fair of me to suggest that 
the number of people who were in those categories would be a 
handful of the 762, at best?
    Mr. Rolince. Of?
    Senator Feingold. Not being of the same ethnic or religious 
background as the September 11th hijackers.
    Mr. Rolince. I believe the majority of the 762--and we can 
check this--were Pakistanis. So it would be accurate to say 
that there were not great numbers of other ethnicities, yes.
    Senator Feingold. In fact, it would be far more than a 
majority? Wouldn't it be fair to say it would be far more than 
a majority that were of the same religious background?
    Mr. Rolince. I would not know what religious background 
they were. We should not ask that question. I do not think we 
gathered that information. Somebody might know it, but I hope 
the FBI does not.
    Senator Feingold. Well, isn't it the case that they were 
nationals of Arab or predominantly Islamic countries in almost 
every case?
    Mr. Rolince. I think that is fair to say, sir, yes.
    Senator Feingold. Fair enough.
    Mr. Nahmias, I think everyone can agree that it might be 
proper to arrest and detain individuals who would pose a flight 
risk or a danger to the community, and that is what the law 
provides. The problem, though, is that the department appears 
to have not had the facts to support a determination in every 
case that someone was a flight risk or a danger to the 
community. Instead, it appears that ethnicity or religious 
background may have been used as proxies for real evidence of 
criminal activity.
    Can you tell us here today that for each of the 762 
individuals arrested on immigration violations and held without 
bond the Department had a factual basis to believe, not based 
on ethnic or religious stereotyping but real facts, that an 
individual was tied to terrorism and posed a danger to the 
community or a flight risk?
    Mr. Nahmias. Yes, Senator Feingold. I begin that by saying, 
to reiterate what Mr. Rolince was saying. With regard to 
ethnicity or religious background, these were people who were 
come across in the course of pursuing 9/11 leads. And if that 
led to--it did not matter which ethnic or religious background 
the person had. If they were here and they were illegally here, 
as a part of the 9/11 investigation they would be arrested on 
immigration law violations.
    We then sought to clear them. In going into court and 
seeking detention, it is also important to point out that under 
the immigration laws, illegal aliens do not have a right to 
release. And we were very concerned because we know--and the 
Inspector General has more recently told us in a very formal 
way--that if we release someone, there is an 87-percent chance 
that we will not see that person for their scheduled 
deportation.
    So in going into court and laying out the facts that 
supported a detention decision, sometimes they were very 
specific, and sometimes, particularly in the early part of an 
investigation, the facts that were presented to a judge, an 
immigration judge, were largely the fact that this person had 
been arrested in the course of pursuing a 9/11 lead, and we 
were trying to determine where he fit in the investigation. All 
of those facts were submitted to immigration judges, who then, 
I believe with very few exceptions, held the person without 
bond.
    It is also critical, I think, to recognize that it is 
extraordinarily difficult in many cases to identify who 
terrorists are. To give a couple of examples of that, we 
learned very quickly after September 11th that among the 19 
hijackers, there were 17 of them whom the kind of quick checks, 
background checks, name checks, CIA traces, and checks for 
other clear illegal activity, would have gotten us nowhere. 
Seventeen of them had come in under the radar and remained 
under the radar. And so we knew from that example that it was 
going to be very difficult to figure out who might be here as a 
sleeper agent.
    To give you another recent example that has just come out 
in the last couple days, the person who was designated as an 
enemy combatant by the President on Monday was originally come 
across by the FBI in the course of pursuing a routine 9/11 
lead--very little of a lead to start with. He was interrogated, 
interviewed voluntarily in September of 2001, and nothing came 
of that. There was no other real development of the case at 
that point. And because he was here legally at that point on a 
student visa, he was not arrested, because we do not arrest 
people who are here legally. And he was allowed to remain in 
the community. There was some ongoing investigation, and it was 
only over the course of the next couple months that we 
developed through further investigation clear evidence that he 
had contact with an Al-Qaeda terrorist operative connected to 
9/11.
    And so in December, he was approached again, interviewed, 
and when he denied that contact and we were not able to clear 
things at that point, he was actually made a material witness. 
And that has been made public since that time.
    Now, by that point, he was also in violation of his student 
visa, and INS put a detainer on him. And had he not been made a 
material witness, he would have been held under this policy 
until the investigation was completed.
    Then after the material witness period, he was charged with 
criminal offenses that did not involve terrorism. They involved 
credit card fraud and making false statements. And the 
investigation continued, now with him at least detained, for 
more than a year. And it was only a couple of months ago that 
we received information from high-level Al-Qaeda operatives 
that he, in fact, had been sent to the United States just 
before September 11th as an Al-Qaeda sleeper to help operatives 
coming into the United States after September 11th to plan 
additional attacks against the United States.
    I think it is important to look at that type of example of 
how an investigation develops, because the reality is that, had 
he been here illegally when he was first encountered in 
September, he would have been arrested under this policy, and 
he would have been safely in custody between September and 
December when we got enough information to at least make him a 
material witness and then to charge him criminally. And even at 
that point, we had not figured out that he was, in fact, 
clearly a terrorist.
    I would have been much happier and we would have been much 
safer had he been off the street from September to December 
under this policy than the way things played out, where he was 
here legally and we allowed him to stay out.
    So I think it is critical to understand in presenting this 
information that we were operating in a world where it is 
almost impossible to figure out who these people are unless we 
get some breaks.
    Senator Feingold. Well, I appreciate that answer--
    Chairman Hatch. Senator, can you wrap it up?
    Senator Feingold. Will there be opportunity for a second 
round?
    Chairman Hatch. I want to--
    Senator Feingold. I tell you what. If you will just let me 
ask one more question, after this I will--
    Chairman Hatch. Sure. That would be fine.
    Senator Feingold. I want to just follow up on this question 
and one other question.
    Chairman Hatch. That would be fine. And Senator Leahy has 
asked me to keep the record open for one week, and we will do 
that, for any further questions.
    Senator Feingold. I allowed the witness to give an 
extensive answer, First A, because I believe it is terribly 
important for members of the Committee to understand what you 
are trying to accomplish here and how important it is; second, 
I wanted to understand this example you were using. This was an 
example not of somebody who was detained on the basis of an 
immigration violation. This is somebody who, as I understand, 
was a material witness.
    As I understand the IG's report, it does not relate to 
those who were detained on the basis of material witness. This 
is not--isn't that correct? I understand from the IG's report 
that that is not one of the categories that was addressed by 
the IG's report. Isn't that correct?
    Mr. Nahmias. That is correct.
    Senator Feingold. So I wanted to hear your example because 
I think it is important, but it does not relate to the question 
directly of these 762 individuals. I take your point, which is 
that had this person been detained because he had an 
immigration violation, then you could have more easily pursued 
him. And I think that is a fair point. I do not think it 
undercuts the major thrust of my question, which was: Did we 
really have information of criminal or terrorist activity with 
regard to most of these 762 individuals? And I think it is 
fairly obvious we did not. But I appreciate your answer.
    Let me just ask one other type of question. The IG reports 
that senior Justice Department officials in the Deputy Attorney 
General's office told the Director of the Bureau of Prisons to 
``not be in a hurry'' to provide the September 11th detainees 
with access to communications, including legal and social calls 
or visits. In the meantime, your boss, Assistant Attorney 
General for the Criminal Division, Mr. Chertoff, reassured 
Congress and the American people in his testimony before this 
Committee on November 28, 2001, that the right to counsel would 
be protected.
    At the time of Mr. Chertoff's testimony, were you aware of 
the fact that other senior officials had instructed the Bureau 
of Prisons to do the exact opposite, to frustrate detainees' 
attempts to contact counsel?
    Mr. Nahmias. Senator Feingold, having read the report, I do 
not agree that that is, in fact, what the Inspector General 
found. The Inspector General found that people at various 
levels of the Department had indicated that policies and legal 
issues might often be addressed aggressively in terms of not 
taking a conservative position on how long someone might be 
detained, whether to seek detention, and so forth.
    Actually, in the section of the Inspector General's report 
that you are referring to--I think it is page 113--just a few 
lines after that quote about supposedly saying do not be in a 
hurry, the Inspector General makes clear that the person to 
whom that was supposedly said, the then-Director of the Bureau 
of Prisons, understood that to mean within the limits of 
applicable policy and law. And that is really the point.
    I also believe that that statement was made in the context 
actually not of these 762 people, but in the context of 
discussions of what to do with regard to already imprisoned 
terrorists who were under special administrative measures in 
the ADMAX facility in Florence, Colorado. So it is somewhat out 
of context as presented in the Inspector General's report.
    Senator Feingold. But you were aware that instruction had 
been given to not be in a hurry, even though you add the caveat 
within normal procedures. But you were aware that that type of 
instruction had been given.
    Mr. Nahmias. I was not aware that that specific instruction 
was given. I think it is critical to say it was always with 
that caveat, that at any time, to my knowledge, that anyone has 
discussed taking any kind of aggressive position on policy 
issues or on how to treat any of these detainees, it was always 
done with the caveat that it remain within the law. And a good 
example of that is when the confusion about whether or not 
detainees could be held more than 90 days after a removal 
decision was made clear, the immediate reaction by the Deputy's 
office was: If that is the law, we have to change the policy. 
And that is just one very clear example expressed in the report 
where, when a clear legal issue came up, the reaction was, in 
an abundance of caution, to avoid crossing any legal line.
    Senator Feingold. Again, just to clarify. I heard your 
answer. At the time of Mr. Chertoff's testimony, were you aware 
of the fact that other senior officials had given these 
instructions? However you want to characterize them, were you 
aware of that?
    Mr. Nahmias. Personally, I was not aware of that, but I am 
confident that the instructions that were given were to remain 
within the law.
    Senator Feingold. I heard that part. I just want to know 
what you were aware of.
    Do you know whether at the time of his testimony Mr. 
Chertoff was aware that other senior officials had instructed 
the Bureau of Prisons to frustrate communications by detainees 
with counsel?
    Mr. Nahmias. I do not believe that that instruction was 
given or that the Inspector General makes that finding.
    Senator Feingold. Well, I would disagree with that, but you 
do not know of any specific knowledge about these instructions.
    Mr. Nahmias. No. I think that there was--and Mr. Lappin 
might be able to address this more clearly. There was a brief 
period of blackout generally, but I do not think anyone ever 
gave the instruction to frustrate people's ability to 
communicate with counsel.
    Senator Feingold. Let's hear Mr. Lappin's answer.
    Mr. Lappin. Yes, sir. The Bureau of Prisons initially 
determined the conditions of confinement for the detainees. In 
fact, on September 11 itself, before we received any detainees, 
we had a number of terrorists in our existing populations, at 
which time we pulled those inmates out of general populations, 
moved them into the segregation units of those facilities, and 
placed them in a restricted environment, primarily because we 
did not know at that time if they had had any communication 
outside of the institution with the target group of individuals 
being investigated, and we wanted to preclude any further 
communication with those individuals if it, in fact, had 
occurred in the past and might result in further terrorist 
attacks.
    Based on that, as we received detainees on September the 
14th, based on the information we received from the 
investigating and detaining authorities that these individuals 
were of high interest to the PENTTBOM World Trade Center 
investigation, we employed those same restrictive conditions.
    I am aware that discussions did occur after that decision 
was made with individuals in the Department who affirmed our 
approach to the conditions of confinement we had determined for 
those individuals.
    So the Bureau of Prisons initially made that determination, 
not only based on the threat to the public but, as I mentioned 
in my opening statement, also based on the fact that these 
individuals, Al-Qaeda individuals, had exhibited aggressive 
acts against our employees in the past, and certainly as well 
as for the protection of these individuals themselves.
    Realize that here you are in New York, the facility in 
Brooklyn houses 2,500 inmates, many of whom were from that 
area. Many of those inmates could have and may have had 
families, friends, and relatives in the buildings. It would 
have been unwise of us to allow those inmates to go out into a 
general population where another inmate may have taken 
aggressive action towards them because of their association 
with the investigation.
    Senator Feingold. I appreciate your elaborating on that. I 
will just say to conclude, Mr. Chairman, that I do read the 
IG's report as clearly suggesting a problem in some 
circumstances with the right to counsel, that this is a failure 
here in this situation, and although there may be individual 
situations that make sense in that regard, that we have got to 
take very seriously the IG's conclusion and not let this happen 
again with regard to those who did not certainly deserve that 
kind of treatment.
    But, again, I thank the witnesses and I thank the Chairman.
    Chairman Hatch. Thank you, Senator Feingold. Those are good 
questions.
    Mr. Nahmias, you are in agreement that where there is a 
need for right to counsel that counsel will be provided?
    Mr. Nahmias. Yes, Mr. Chairman, and--
    Chairman Hatch. In other words, you are saying that the 
direction has always been and you believe it has always been 
carried out that you would live within the law, even though you 
could be criticized for living within a broad interpretation of 
the law.
    Mr. Nahmias. I think it is important--there were problems 
with the ability of people to have access to their counsel. 
Some of those are inherent in the Bureau of Prisons setting. 
Some of them are inherent in the type of custodial situation 
within the Bureau of Prisons these people were in. There were 
some problems with that. Those are the types of things that we 
have learned from the Inspector General's report, we learned 
them along the way, and we would try to correct them in the 
future. But there was never a policy of the Department, and I 
can't believe there will ever be a policy of the Department, 
that anyone who is detained by the Department should not have 
the ability to communicate with counsel in their defense.
    Chairman Hatch. I think this is important because there 
have been a lot of articles written pro and con on this issue. 
Let me just say that you folks have very difficult jobs to do, 
and I can just hear the screaming and wailing and shouting if 
we had had another terrorist attack because you let some of 
these people go prematurely. I think Senator Schumer is 
absolutely right when he indicated that you would never live it 
down. And even at that, we know that there are known terrorist 
organizations and terrorists in this country that we are 
monitoring that we are pretty sure may try to do something like 
this in the future. And that does not stop other methods of 
terrorism.
    It is easy to criticize, but you folks have been handed 
basically an impossible job in many ways. But I think you are 
doing the very best job you can to take care of it, and where 
there are defects, where there are questionable acts, where 
there are questionable approaches, we up here want you to end 
those and make sure that our laws are followed. And if we 
cannot rely on the law enforcement agencies, who can we rely 
on?
    So this hearing has been very helpful, and I think having 
experts here has been extremely helpful for me personally. And 
I appreciate all that you do and all that you have done, and I 
understand some of the criticisms. And I think it was good to 
get the Inspector General's report out, and we can all grow 
from that and learn from that and hopefully do things even 
better in the future.
    But, with that, we will recess until further notice.
    [Whereupon, at 1:24 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
[GRAPHIC] [TIFF OMITTED] 91288.001

[GRAPHIC] [TIFF OMITTED] 91288.002

[GRAPHIC] [TIFF OMITTED] 91288.003

[GRAPHIC] [TIFF OMITTED] 91288.004

[GRAPHIC] [TIFF OMITTED] 91288.005

[GRAPHIC] [TIFF OMITTED] 91288.006

[GRAPHIC] [TIFF OMITTED] 91288.007

[GRAPHIC] [TIFF OMITTED] 91288.008

[GRAPHIC] [TIFF OMITTED] 91288.009

[GRAPHIC] [TIFF OMITTED] 91288.010

[GRAPHIC] [TIFF OMITTED] 91288.011

[GRAPHIC] [TIFF OMITTED] 91288.012

[GRAPHIC] [TIFF OMITTED] 91288.013

[GRAPHIC] [TIFF OMITTED] 91288.014

[GRAPHIC] [TIFF OMITTED] 91288.015

[GRAPHIC] [TIFF OMITTED] 91288.016

[GRAPHIC] [TIFF OMITTED] 91288.017

[GRAPHIC] [TIFF OMITTED] 91288.018

[GRAPHIC] [TIFF OMITTED] 91288.019

[GRAPHIC] [TIFF OMITTED] 91288.020

[GRAPHIC] [TIFF OMITTED] 91288.021

[GRAPHIC] [TIFF OMITTED] 91288.022

[GRAPHIC] [TIFF OMITTED] 91288.023

[GRAPHIC] [TIFF OMITTED] 91288.024

[GRAPHIC] [TIFF OMITTED] 91288.025

[GRAPHIC] [TIFF OMITTED] 91288.026

[GRAPHIC] [TIFF OMITTED] 91288.027

[GRAPHIC] [TIFF OMITTED] 91288.028

[GRAPHIC] [TIFF OMITTED] 91288.029

[GRAPHIC] [TIFF OMITTED] 91288.030

[GRAPHIC] [TIFF OMITTED] 91288.031

[GRAPHIC] [TIFF OMITTED] 91288.032

[GRAPHIC] [TIFF OMITTED] 91288.033

[GRAPHIC] [TIFF OMITTED] 91288.034

[GRAPHIC] [TIFF OMITTED] 91288.035

[GRAPHIC] [TIFF OMITTED] 91288.036

[GRAPHIC] [TIFF OMITTED] 91288.037

[GRAPHIC] [TIFF OMITTED] 91288.038

[GRAPHIC] [TIFF OMITTED] 91288.039

[GRAPHIC] [TIFF OMITTED] 91288.040

[GRAPHIC] [TIFF OMITTED] 91288.041

[GRAPHIC] [TIFF OMITTED] 91288.042

[GRAPHIC] [TIFF OMITTED] 91288.043

[GRAPHIC] [TIFF OMITTED] 91288.044

[GRAPHIC] [TIFF OMITTED] 91288.045

[GRAPHIC] [TIFF OMITTED] 91288.046

[GRAPHIC] [TIFF OMITTED] 91288.047

[GRAPHIC] [TIFF OMITTED] 91288.048

[GRAPHIC] [TIFF OMITTED] 91288.049

[GRAPHIC] [TIFF OMITTED] 91288.050

[GRAPHIC] [TIFF OMITTED] 91288.051

[GRAPHIC] [TIFF OMITTED] 91288.052

[GRAPHIC] [TIFF OMITTED] 91288.053

[GRAPHIC] [TIFF OMITTED] 91288.054

[GRAPHIC] [TIFF OMITTED] 91288.055

[GRAPHIC] [TIFF OMITTED] 91288.056

[GRAPHIC] [TIFF OMITTED] 91288.057

[GRAPHIC] [TIFF OMITTED] 91288.058

[GRAPHIC] [TIFF OMITTED] 91288.059

[GRAPHIC] [TIFF OMITTED] 91288.060

[GRAPHIC] [TIFF OMITTED] 91288.061

[GRAPHIC] [TIFF OMITTED] 91288.062

[GRAPHIC] [TIFF OMITTED] 91288.063

[GRAPHIC] [TIFF OMITTED] 91288.064

[GRAPHIC] [TIFF OMITTED] 91288.065

[GRAPHIC] [TIFF OMITTED] 91288.066

                                   - 
