[Senate Hearing 108-925]
[From the U.S. Government Publishing Office]
S. Hrg. 108-925
THE 9/11 COMMISSION AND RECOMMENDATIONS FOR THE FUTURE OF FEDERAL LAW
ENFORCEMENT AND BORDER SECURITY
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
AUGUST 19, 2004
__________
Serial No. J-108-92
__________
Printed for the use of the Committee on the Judiciary
----------
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of
Delaware, prepared statement................................... 143
Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia,
charts......................................................... 154
Cornyn, Hon. John, a U.S. Senator from the State of Texas,
prepared statement............................................. 175
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin, prepared statement.................................. 176
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1
prepared statement........................................... 187
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts, prepared statement.............................. 204
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 4
prepared statement........................................... 208
WITNESSES
Baginski, Maureen A., Executive Assistant Director, Intelligence,
Federal Bureau of Investigation, Washington, D.C............... 14
Hamilton, Lee, Vice Chair, 9/11 Commission, Washington, D.C., and
Slade Gorton, Commissioner, 9/11 Commission, Washington, D.C... 7
Hutchinson, Asa, Under Secretary for Border and Transportation
Security, Department of Homeland Security, Washington, D.C..... 12
QUESTIONS AND ANSWERS
Responses of Maureen Baginski to questions submitted by Senators
Hatch, Leahy, and Feingold..................................... 49
Responses of Asa Hutchinson to questions submitted by Senators
Hatch, Schumer, Leahy, and Feingold............................ 79
Questions for Commissioners Lee Hamilton & Slade Gorton submitted
by Senators Hatch, Leahy and Feingold. (Note: Responses to the
written questions were not available at the time of printing.). 113
SUBMISSIONS FOR THE RECORD
American Civil Liberties Union, Gregory T. Nojeim, Associate
Director and Chief Legislative Counsel, and Timothy H. Edgar
Legislative Counsel, Washington, D.C., statement............... 120
Baginski, Maureen A., Executive Assistant Director, Intelligence,
Federal Bureau of Investigation, Washington, D.C., statement... 146
Goodrich, Donald, Chairman of the Board, Families of September
11, statement.................................................. 177
Hamilton, Lee, Vice Chair, 9/11 Commission, Washington, D.C., and
Slade Gorton, Commissioner, 9/11 Commission, Washington, D.C.,
statement...................................................... 179
Hutchinson, Asa, Under Secretary for Border and Transportation
Security, Department of Homeland Security, Washington, D.C.,
statement...................................................... 190
THE 9/11 COMMISSION AND RECOMMENDATIONS FOR THE FUTURE OF FEDERAL LAW
ENFORCEMENT AND BORDER SECURITY
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THURSDAY, AUGUST 19, 2004
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 9:32 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, Chairman of the Committee, presiding.
Present: Senators Hatch, DeWine, Chambliss, Cornyn, Leahy,
Kennedy, Kohl, Feingold, and Schumer.
Chairman Hatch. We are ready to go here. I think we will
have all our panelists come up to the table so that when we ask
questions, we can ask everybody.
Senator Leahy. But if we do that, Mr. Chairman, we are
going to need more than--I think it would be almost--well, I
think we would be rightly criticized if we then spent just the
same few minutes each Senator Cornyn, myself or anybody else
might have, and spread it across four instead of across two.
Chairman Hatch. Well, let's see what we can do.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. Let me just begin here by adding my voice
to those who have expressed their appreciation to the members
of the 9/11 Commission and their staff for their hard work in
putting together a thorough report that includes many
thoughtful recommendations.
I want to thank you, Senator Gorton, and you,
Representative Hamilton. We know how hard you have worked to
get this all done, and we have chatted with both of you
extensively.
We also owe a debt of gratitude to all of the witnesses who
appeared before the Commission, especially the representatives
of families of those who perished in the horrific and
unjustified attacks of nearly 3 years ago.
The first responsibility of government is to protect its
citizens and we must never shy away from that duty. Today, the
Judiciary Committee begins its discussion of the portions of
the 9/11 Commission's report and recommendations that relate to
areas under our jurisdiction, such as border security and the
role of the FBI in the field of counterintelligence.
Our colleagues on the Governmental Affairs Committee, led
by Senators Collins and Lieberman, have asked for our
Committee's perspective on matters within our expertise, and I
want to thank them for that.
In addition to those recommendations that are designed to
help our law enforcement and homeland security agencies
identify, thwart and apprehend terrorists, we on the Senate
Judiciary Committee have a role in implementing and overseeing
any recommendations aimed at protecting our civil liberties. I
expect, for example, that today's hearing will help us gain a
better understanding of the Commission's recommendation calling
for the creation of a new civil liberties board.
Similarly, we must take to heart the Commission's
recommendation with respect to our obligation to provide humane
treatment for those detained as suspected or captured
terrorists. The abuse of prisoners such as occurred at Abu
Ghraib is contemptible, as well as counter-productive to our
efforts to stop Islamist terrorism at its countries of origin.
Much attention has been focused on now-famous
organizational chart on page 413 of the Commission report
proposing the National Intelligence Director, the National
Counterterrorism Center, and three dual-hatted deputies. As
significant as the debate today over the structural issues is,
it must not be allowed to crowd out an equally important policy
discussion of those recommendations that urge America to stand
up for and defend our core values and ideals with our foreign
neighbors, and work to bring about long-term changes in the
underlying economic and political conditions that foster
Islamist terrorism in certain regions.
We must not be under any illusion that we can reach
accommodations with Islamist terrorist organizations like al
Qaeda. The Commission found that these groups do not hold
views, quote, ``with which Americans can bargain or
negotiate...there is no common ground--not even respect for
life--on which to begin a dialogue...[They] can only be
destroyed or utterly isolated,'' unquote.
The deadly attacks on 9/11 required our country to adopt
new laws to protect the public. I find constructive the
Commission's observation that, quote, ``a full and informed
public debate on the PATRIOT Act would be healthy,'' unquote.
In this regard, I would note that the Commission also found
that ``some executive actions that have been criticized are
unrelated to the PATRIOT Act. The provisions that facilitate
the sharing of information among intelligence agencies and
between law enforcement and intelligence appear, on balance, to
be beneficial,'' unquote.
The 9/11 Commission report documents the negative
repercussions of the so-called wall that existed before
enactment of the PATRIOT Act between intelligence and criminal
investigators. Even if the Commission is accurate in its
assessment that the July 1995 procedures establishing the wall
by Attorney General Reno, quote, ``were almost immediately
misunderstood and misapplied,'' unquote, there can be no doubt,
as Chapter 8 of the report lays out in great detail, that
creation of the wall between intelligence and criminal
investigators impeded rigorous following of leads that may have
prevented the 9/11 attacks.
The Commission's report catalogs that on August 29, 2001,
one frustrated FBI criminal investigator prophetically e-mailed
across the wall to an FBI intelligence officer the following
message after being denied the ability to access and use
information about one key al Qaeda operative, quote,
``...someday someone will die--and wall or not--the public will
not understand why we were not more effective and throwing
every resource we had at certain problems,'' unquote.
Never were more truer words written, but our job is to
learn from our past mistakes in order to protect the American
public in the future. If we carefully review the lessons
contained in the 9/11 Commission report and fairly evaluate its
recommendations, we will be able to marshal our resources and
carry out our counterterrorism programs more effectively and
reduce the risk of terrorist attacks against Americans at home
and abroad.
For example, the Commission's report compellingly
demonstrates the importance of border security and tracking
international travelers. Under Secretary Hutchinson will help
us understand the administration's views in this critical area.
Also of great interest to the Judiciary Committee is the
Commission's recommendation relating to the future of the FBI
in the war against terrorism. The 9/11 Commission report found
that the FBI and Director Mueller have cooperated with the
Commission. Recently, the FBI issued its formal response to the
Commission's recommendations and in each instance was either
implementing those recommendations or reexamining its current
policy in light of the recommendations.
I would like to commend President Bush for his leadership
in making certain that the key senior administration officials
are giving the bipartisan 9/11 Commission report the respect
and consideration that it merits and deserves.
It appears to me that, by and large, all of the committees
in the House and Senate are attempting to approach the report
in a bipartisan manner, despite the fact that we are deep into
the election cycle and despite the fact that some of the
Commission's recommendations are somewhat complex and
controversial, such as those pertaining to changes in
Congressional oversight of terrorism programs.
I hope that this spirit of bipartisanship continues this
morning so that we can go about the serious business of
adopting the set of policies and laws that best protects the
American public from terrorism, while preserving our
traditional rights and liberties as American citizens.
So I want to express my gratitude to all four of you being
here--you two members of the Commission who have served so well
and have given so much time to committees up here on Capitol
Hill and have, I think, written an excellent report, for the
work that the FBI does and, of course, Homeland Security does,
represented by Ms. Baginski and Asa Hutchinson. I just want to
tell you how grateful we are to have all of you here.
We will put your full statements in the record. I notice
they are rather long. We would like you to summarize so that we
have enough time for questions here today.
[The prepared statement of Senator Hatch appears as a
submission for the record.]
So we will turn to Senator Leahy, and then we will turn to
the witnesses.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Well, thank you, Mr. Chairman. I am glad you
are having this hearing and I thank you for accommodating
schedules so we could do it.
I am glad to see all the witnesses, especially my old
friends Lee Hamilton and Slade Gorton. I had a chance to talk
with both of them, although for months I felt as though they
had never left because I would see them everyday on television.
I think that as the Commission's Chair and Vice Chair,
Governor Kean and Congressman Hamilton offered extraordinary
leadership, leadership in the highest traditions of our great
country in guiding the investigation through difficult shoals
and bringing the Commission not only to constructive, but
unanimous findings and recommendations.
I have also heard the high praise that you and the other
commissioners have had for the Commission staff. I join you in
that praise. The report you have produced is an exceptional
product and deserves the Nation's attention and deserves the
Congress' prompt consideration.
Senator Gorton, I was so proud of many of the comments you
made, but especially when you remarked that the commissioners
checked their politics at the door. I think the quality of the
Commission's report bears out what you had said.
Working in this non-partisan fashion, the 9/11 Commission
has given us a chance for a fresh start in tackling the issues
the report has identified. We shouldn't squander that chance.
We should use the Commission as our model. After all, the
terrorists don't attack Democrats or Republicans or
independents. When they strike, they attack all Americans. I
know my friend, Asa Hutchinson, has said very similar things in
the past, and he and Ms. Baginski know this very, very well.
I also want to commend the tireless efforts of the families
and survivors who fought so hard to ensure that this Commission
was established. Like the commissioners, the victims groups put
partisanship aside and they pushed for an open, deliberative
and accountable investigation, moving us forward in a
constructive manner to better protect this Nation. Many of the
victims groups are here today. I want to thank them, I want to
welcome them.
I might ask, Mr. Chairman, for consent to submit for the
record the written statement of Donald Goodrich, of Bennington,
Vermont.
Chairman Hatch. Without objection.
Senator Leahy. He lost his son, Pete, on September 11th and
he has come to work closely with me on victims issues. I want
to express my deep appreciation to him.
We can't overstate the importance of oversight. The
Commission deserves our praise for fighting for full access to
documents and official testimony, and for acknowledging in its
final report the importance of open government. They stated
that secrecy can harm oversight and note that democracy's best
oversight mechanism is public disclosure.
We are going to focus on two areas of great significance--
FBI reform and border security. Both are topics well-known to
this a Committee and have been of particular concern to me. My
home State of Vermont shares 90 miles of our international
border with Canada and I know the challenges faced there.
The attacks of 9/11 did not create the problems the
Commission has identified; it simply brought them into sharp
relief. As someone who comes from a law enforcement background,
several of them are problems that have concerned me for some
time, and I know they concern others on this Committee from
both sides of the aisle. Addressing some of these deficiencies
was my first priority when I was Chairman for a few months
before September 11th.
During our hearings that summer, it was already clear that
the FBI over the years has lost its way on some of the
fundamentals, the ABCs, starting with accountability; basic
tools like computers, technology and translators; and culture
issues, like the treatment of whistleblowers and a resistance
to share information outside the Bureau.
We began bipartisan hearings on reforming the FBI just
weeks before September 11th, and the new FBI Director pledged
to make the changes necessary.
The Director has made significant progress on several
fronts, but the Commission's report strikes several familiar
chords, showing that there is much ground yet to cover before
we can say that the FBI is as effective as Americans need the
Bureau to be in preventing and combatting terrorism.
We continued the hearings on FBI reform after September
11th. We sharpened our focus on the relevance of these
longstanding problems. Our inquiry constituted the most
intensive FBI oversight in many years and generated wide-
ranging recommendations. The Commission report identified many
of the same failures within the FBI that we had highlighted in
those hearings. It recognizes, as do I, that Director Mueller
has already taken certain steps to solve structural problems
and that he is striving to change the culture within the
Bureau. These are important steps, but it also points out that
we have to institutionalize these changes or they will die on
the vine, as they have in the past, when you have lapses in
leadership or oversight.
There are two particular areas that gravely concern me--
and, Ms. Baginski, I will be going into this later--the FBI's
foreign language translation program and its information
technology system. These are the nuts and bolts of effective
law enforcement and counterintelligence, but we know in the
months leading up to September 11, 2001, they were in sorry
shape. Three years later, and millions and millions of dollars
later, we want to know what progress has been made.
Ms. Baginski has said recently she was optimistic about the
status of the FBI's foreign translation program. I hope you
have some good news for us today because last spring, despite
claims of near real-time translation of wiretaps, the FBI could
not state with any certainty how much time passes between the
time a telephone call is taped and when it is translated. There
is still a vast backlog, for example, of material needing to be
translated. The FBI sought an unprecedented number of new FISA
wiretaps last year. I have to ask, how does this impact their
resources?
The FBI longstanding problems of mastering the computer
technology that is essential to modern-day law enforcement has
been another great failing. The Trilogy solution that the FBI
said would be the answer to the computer problems has been a
disaster. By now, two phases of Trilogy have been completed.
All agents at least have their own computers and can send e-
mails to one another, something my 12-year-old neighbor was
able to do years ago. It is hardly a noteworthy accomplishment
in the Information Age, especially $500 to $600 million later.
My neighbor did it for a couple of hundred dollars.
What troubles me, however, is the FBI agents are still
trying to connect the dots using pencil and paper. That is fine
for kindergarten, but it is not fine for our FBI. The long
anticipated virtual case file system which would put
intelligence at the fingertips of the agents in the field is
far behind schedule. It is vastly over budget. It should have
been operational long ago, but the dates keep getting extended.
In May, the Director assured us that it would be deployed by
the end of the year. A month later, in June, we were told there
would be further delays. At this rate, by the time it is
finally implemented, it will be outdated. We should be working
with state-of-the-art technology.
There are other critical areas that need reform within the
FBI. Some we learned from the 9/11 Commission, some we learned
from our own oversight efforts and reports by the DOJ Inspector
General, but some have come to light only because of
whistleblowers.
Senator Grassley and I spent a great deal of time listening
to reports from whistleblowers because we believed they may
provide us with information critical to our National security.
As a result of Enron and related corporate scandals, I worked
with Senator Grassley and others in Congress to give broad
protection to whistleblowers in the private sector.
But so far, Congress has not acted to protect those who
come forward from the FBI. The FBI Reform Act that Senator
Grassley and I introduced in July of 2003 is drawn from the FBI
Reform Act that had been unanimously approved by this Committee
a year before. It has died on the Senate floor because of
anonymous holds on the Republican side. It does address several
outstanding problems in the Bureau, and acting on those reforms
is long overdue.
Finally, I want to raise the question of State grants for
homeland security funding. The 9/11 Commission recommended that
homeland security assistance should be based strictly on an
assessment of risks and security questions. I believe the real
problem we face is a failure on the part of both the Congress
and the administration to make enough of an overall commitment
of resources to first responders.
Instead of making first responders the priority they should
be, some have preferred to pit State against State for the
inadequate Federal resources that are available. Rather than
turning large States against small States, the needs of both
should be recognized.
The Commission has rendered to history its careful
reconstruction. The Commission has given to us the task of
carefully considering its recommendations drawn from those
events, recommendations that in several ways would help the FBI
get back to mastering its ABCs. We owe our fellow citizens and
the families of those whose lives were lost or forever changed
by those attacks our full and respectful consideration of these
findings and recommendations. But let me say one more time,
every single American owes an enormous debt of gratitude to
Congressman Hamilton, to Senator Gorton and all the other
Commission members.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Thank you, Mr. Chairman.
Chairman Hatch. Thank you, Senator.
We will start with Congressman Hamilton, and then Senator
Gorton. We would like you to summarize, if you can. We will put
all full statements into the record, and then hopefully we will
have enough time for some questions.
So, Lee, we are happy to have you here. We welcome all four
of you here. We are grateful for the service you have given and
we look forward to hearing your testimony.
STATEMENT OF LEE HAMILTON, VICE CHAIR, 9/11 COMMISSION,
WASHINGTON, D.C., AND SLADE GORTON, COMMISSIONER, 9/11
COMMISSION, WASHINGTON, D.C.
Mr. Hamilton. Thank you very much, Chairman Hatch, Ranking
Member Leahy and the other distinguished Senators of this
Committee. We are very pleased to be before you today. I want
to just mention that Chairman Kean, who deserves enormous
credit for his leadership in this Commission, is not able to be
with us today. But I am delighted to have joining me Senator
Gorton, who made innumerable contributions to this report and
served with extraordinary distinction. We are aware, of course,
that August is not usually a month when you meet, and we are
very grateful to you for your willingness to be here to hear
our testimony.
What we will do is kind of alternate in summarizing our
paragraphs, as the Chairman has indicated. You have asked us to
discuss three topics--our findings and recommendations with
regard to the FBI; secondly, border security; and, third, the
PATRIOT Act. We will discuss each of these in turn.
Senator?
Mr. Gorton. The FBI has for several decades performed two
important but related functions. First, it serves as our
premier Federal law enforcement agency investigating possible
violations of Federal criminal statutes and working with
Federal prosecutors to develop and bring cases against
violators of those laws.
Second, it is an important member of the intelligence
community, collecting information on foreign intelligence or
terrorist activities within the United States. That information
can be used either for additional counterintelligence or
counterterrorism investigation or to bring criminal
prosecutions.
We focused on the FBI's performance as an intelligence
agency combatting the al Qaeda threat within the United States
before 9/11. And like the Joint Inquiry of the Senate and House
Intelligence Committees before us, we found that performance
seriously deficient.
Finally, when FBI agents did develop important information
about possible terrorist-related activities, that information
often did not get effectively communicated either within the
FBI itself or in the intelligence community as a whole.
Within the FBI itself, communication of important
information was hampered by the traditional case-oriented
approach of the agency and the possessive case file mentality
of FBI agents. As this Committee is only too familiar with the
information technology problems that have hampered the FBI's
ability to know what it knows for years, even when information
was communicated from the field to headquarters, it didn't
always come to the attention of the Director or other top
officials who should have seen it.
This was the case in the now-famous incidents in the summer
of 2001 of the Phoenix electronic communication about Middle
Eastern immigrants in flight schools and the Minneapolis field
office's report to headquarters about the arrest of Zacarias
Moussaoui.
The other internal barrier to communication of intelligence
information between the FBI intelligence officials and the FBI
criminal agents and the Federal prosecutors was the wall
between intelligence and law enforcement that developed in the
1980s and reinforced in the 1990s.
Through a combination of court decisions, pronouncements
from the Department of Justice and its Office of Intelligence
Policy and Review, and risk-averse interpretations of those
pronouncements by the FBI, the flow of information between the
intelligence and criminal sides of the FBI and the Justice
Department was significantly choked off--a phenomenon that
continued until after 9/11, when the Congress enacted the
PATRIOT Act and when the Justice Department successfully
appealed a FISA court decision that effectively reinstated the
wall.
These failures in internal communications were exacerbated
by a reluctance of the FBI to share information with its sister
agencies in the intelligence community. The FBI, under the
leadership of its current Director, Robert Mueller, has
undertaken significant reforms to try to deal with these
deficiencies and build a strong capability in intelligence and
counterterrorism.
Because of the history of serious deficiencies and because
of lingering doubts about whether the FBI can overcome its
deep-seated law enforcement culture, the Commission gave
serious consideration to proposals to move the FBI's
intelligence operation to a new agency devoted exclusively to
intelligence collection inside the United States, a variant of
the British security service popularly known as MI-5.
We decided not to make such a recommendation for several
reasons set forth in our report. Chief among them were the
disadvantages of separating domestic intelligence from law
enforcement and losing the collection resources of FBI field
offices around the country, supplemented by their relationships
with State and local law enforcement agencies.
Another major reason was civil liberties concerns that
would arise from creating outside of the Justice Department an
agency whose focus is on collecting information from and about
American citizens, residents and visitors. We also believe that
while the jury is still out on the ultimate success of the
reforms initiated by Director Mueller, the process he has
started is promising, and many of the benefits that might be
realized by creating a new agency will be achieved, we are
convinced, if our important recommendations on restructuring
the intelligence community, creation of a national
counterterrorism center and a national intelligence director
with real authority to coordinate and direct the activities of
our intelligence agencies are implemented.
An FBI that is an integral part of the NCTC and is
responsive to the leadership of the national intelligence
director will work even more effectively with the CIA and other
intelligence agencies, while retaining the law enforcement
tools that continue to be an essential weapon in combatting
terrorism.
What the Commission recommends, therefore, is that further
steps be taken by the President, the Justice Department and the
FBI itself to build on the reforms that have been undertaken
already and to institutionalize those reforms so that the FBI
is permanently transformed into an effective intelligence and
counterterrorism agency. The goal, as our report states, is to
create within the FBI a specialized and integrated national
security workforce of agents, analysts, linguists and
surveillance specialists who create a new FBI culture of
expertise in national security and intelligence.
Mr. Hamilton. On Border Patrol, I think our principal
finding was a simple one, and that was that border security was
not seen as a national security matter. We looked at it as a
narcotics problem, illegal immigration, smuggling of weapons of
mass destruction. But we simply did not exhibit a comparable
level of concern about terrorists' ability to enter and stay in
the United States.
Al Qaeda was very skillful in exploiting the gaps in our
visa entry systems. They even set up their own passport office.
They developed very good contacts with travel facilitators and
were very effective in getting into the country.
The Commission found that many of the 19 hijackers were
potentially vulnerable to detection by border authorities, for
all kinds of reasons. Some made false statements on their visa
applications, some lied, some violated the rules of
immigration. One failed to enroll in school; two over-stayed
their time. But neither the intelligence community nor the
border security agencies nor the FBI had programs in place to
analyze and act upon that intelligence on their travel tactics.
Since 9/11, we know that important steps have been taken to
strengthen our border security. We spell them out in our
statement. I will not go into those. The efforts have certainly
made us safer, but not safe enough. As a Nation, we have not
yet fully absorbed the lessons of 9/11 with respect to border
security.
The terrorists are travelers; they are jet-setters in many
ways. They have to leave safe havens, they have to travel
clandestinely, they have to use evasive techniques, they have
to alter travel documents. All of these things give us an
opportunity to zero in on the terrorists. So we have
recommended a broad strategy that combines terrorist travel
intelligence, operations, law enforcement, in a strategy to
intercept terrorists, find their travel facilitators and
constrain their mobility.
Mr. Gorton. Front-line border agencies must not only obtain
from the intelligence community on a real-time basis
information on terrorists. They must also assist in collecting
it. Consular officers and immigration inspectors, after all,
are the people who encounter travelers and their documents.
Specialists must be developed and deployed in consulates and at
the border to detect terrorists through their travel practices,
including their documents.
Technology has a vital role to play. Three years after 9/
11, it has been more than enough time for border officials to
integrate into their operations terrorist travel indicators
that have been developed by the intelligence community. The
intelligence community and the border security community have
not been close partners in the past. This must change.
We also need an operational program to target terrorist
travel facilitators, forgers, human smugglers, travel agencies
and corrupt border officials. Some may be found here, but most
will be found abroad. Disrupting them would seriously constrain
terrorists' mobility. While there have been some successes in
this area, intelligence far outstrips action. This problem
illustrates the need for a national counterterrorism center.
Investigations of travel facilitators invariably raise
complicated questions. Should a particular travel facilitator
be arrested or should he be the subject of continued
intelligence operations? In which country should he be
arrested? A central planning authority is needed to bring the
numerous agencies to the table and to decide on the best course
of action.
Mr. Hamilton. With regard to screening systems, we think
the Government simply must accelerate its efforts to build a
comprehensive biometric entry and exit screening system. The
Congress has had an interest in that, but as a practical matter
there hasn't been any funding until the end of 2002.
The new Department of Homeland Security, we believe, is
emerging from its difficult start-up period, and we believe it
is poised to move forward to implement Congress's mandate in
this area. We stress four principles.
One is that the Department has to lead with a comprehensive
screening system. We will have more to say about that, I am
sure, in the Q and A period. It addresses the common problems,
setting common standards with system-wide goals in mind.
Secondly, a biometric entry and exit screening system is
just fundamental to intercepting terrorists, and its
development should be accelerated. Each element of that system
is very important. It must enable the border officials to
access all relevant information about a traveler in order to
assess the risk they may pose. We must know who is coming into
this country. We must know people are who they say they are.
The third principle is that United States citizens should
not be exempt from carrying biometric passports or other
identities to be securely verified. And there should be a
uniform program to speed known travelers so inspectors can
focus their efforts on the ones that might pose greater risks.
Mr. Gorton. We need to dedicate a much greater effort to
collaboration with foreign governments with respect to border
security. This means more exchange of information about
terrorists and passports, and improved global passport design
standards. Implicit in this recommendation is continued close
cooperation with Mexico and Canada. One particularly important
effort is to improve screening efforts prior to departure from
foreign airports, especially in countries participating in the
visa waiver program.
Mr. Hamilton. Our law enforcement system has to send a
message of welcome, tolerance and justice to members of the
immigrant communities in the United States, fostering also a
respect for the rule of law. Good immigration services are one
way to reach out that is valuable, including for intelligence.
State and local law enforcement agencies need more
training; they need to partner with Federal agencies so that
they can cooperate more effectively in identifying terrorist
suspects. We also need secure identification, and that should
begin in the United States. We believe that the Federal
Government should set standards for the issuance of birth
certificates and sources of identification such as drivers'
licenses. The bottom line is that our visa and border control
systems must become an integral part of our counterterrorism
intelligence system.
Mr. Gorton. The USA PATRIOT Act, passed in the wake of the
9/11 attacks, was substantially the product of this Committee.
While a number of provisions of the Act were relatively non-
controversial, updating existing authorities to take account of
the digital age in which we now live, others are more far-
reaching, granting to the FBI, the Department of Justice and
other executive branch agencies important new authorities to
use in combatting terrorism.
For this reason, the Congress chose to sunset many of the
provisions of the Act at the end of next year. We know that
this Committee and the House Committee on the Judiciary will be
holding hearings to determine whether to extend these expiring
provisions and whether to make additional changes in the law.
This Commission did not canvass the entire range of issues
raised by the USA PATRIOT Act in detail. We have limited our
specific recommendations with respect to the Act to those
provisions that bear most directly on our mandate; i.e. those
that relate to information-sharing in the intelligence and law
enforcement communities. We believe that those provisions
breaking down the wall that prevented the FBI from sharing
intelligence information guaranteed under FISA with Federal
prosecutors and allowing the Justice Department to share grand
jury information with other intelligence and law enforcement
agencies should be extended or made permanent. They are
important in their own right and they have helped spur the
increased sharing of information throughout the intelligence
community that is vital to a successful counterterrorism
program.
We made a general recommendation that applies not only to
consideration of other provisions of the PATRIOT Act, but also
to other legislative or regulatory proposals that may impinge
on individual rights or liberties, including personal privacy.
The burden in all cases should be on those proposing the
restriction to show that the gains that will flow in terms of
national security are real and substantial and that individual
rights and liberties will be adequately protected. We recommend
the establishment of appropriate guidelines for such programs.
We also recommend the establishment in the executive branch of
an oversight office or board to be a watchdog to assure maximum
protection of individual rights and liberties in those
programs.
Let us conclude with what we said in our report. We must
find ways of reconciling security with liberty, since the
success of one helps protect the other. The choice between
security and liberty is a false choice and nothing is more
likely to endanger American liberties than the success of
terrorist attacks at home. Our history has shown us that
insecurity threatens liberty. Yet, if our liberties are
curtailed, we lose the values that we are struggling to defend.
We are now pleased to answer your questions.
[The prepared statement of Messrs. Hamilton and Gorton
appears as a submission for the record.]
Chairman Hatch. Thank you very much.
We want to thank you, Secretary Hutchinson, for being here.
You have testified, I believe, 12 times so far before
committees up on Capitol Hill here in this last short time, and
we are grateful that you have been willing to come and testify
here as well.
Senator Leahy. Asa spends more time here now than when he
was in the House.
Chairman Hatch. I don't think you have to take that kind of
stuff.
[Laughter.]
STATEMENT OF ASA HUTCHINSON, UNDER SECRETARY FOR BORDER AND
TRANSPORTATION SECURITY, DEPARTMENT OF HOMELAND SECURITY,
WASHINGTON, D.C.
Mr. Hutchinson. Well, thank you, Chairman Hatch, Senator
Leahy, members of the Committee. I would love to have an
honorary seat somewhere here if I continue to testify, but it
is always a privilege to be before this Committee.
As we approach the anniversary of the September 11 attacks,
it is important to recognize that significant progress has been
made. But we also understand there is a great need to do more,
and I am grateful for the testimony of Congressman Hamilton and
Senator Gorton, who have done such a terrific job with the 9/11
Commission. The recommendations in their testimony today will
help us to drive forward many of the initiatives that the
Department of Homeland Security has been engaged in.
I wanted to cover a couple of points that are covered in
the Commission report and talk about some of the things we have
done in this regard.
In its report, the Commission noted that vigorous efforts
to track terrorist financing must remain front and center in
U.S. counterterrorism efforts. We certainly agree with this.
Well over a year ago, the Department has worked in close
cooperation with the FBI and others to track terrorist
financing and to dismantle the sources of terrorist funding.
The Department's Immigration and Customs Enforcement, or
ICE agents share all terrorist financing leads with the FBI
under a memorandum of agreement with the Department of Justice.
We have established a joint vetting unit to clear all
investigations with any potential nexus to terrorist financing.
We have also assigned 321 ICE agents to the FBI's joint
terrorism task forces, which is a very effective means of
clearing information and enhancing cooperation.
ICE initiated the Cornerstone program, which focuses on the
systems of financing that criminals, terrorists and alien
smugglers use to earn, store and move their proceeds. To date,
Cornerstone has recovered $348 million in illegal currency and
made 1,800 arrests.
Another recommendation of the Commission was in reference
to terrorist travel that was testified to previously, that we
should combine terrorist travel intelligence, operations and
law enforcement in a strategy to intercept terrorists and their
facilitators as they go about their business. The Department
has moved forward with this aggressively. There is more to be
done.
Through the National Targeting Center, which is operated by
Customs and Border Protection, we use a variety of information
to identify potentially high-risk travelers and shipments that
should have more scrutiny. We have the Automated Targeting
System that allows us through the NTC to analyze raw
intelligence and travel data and commercial data to pinpoint
anomalies to help us to be able to flag those that might pose a
risk. That is the foundation, of course, for the Container
Security Initiative, which is the cargo side of our
inspections. So that is the capacity to look at terrorist
travel.
Secondly, we have our US-VISIT program that provides an
important continuum of security that has improved our ability
to target individuals, and hopefully to have the traveler files
in place that the Commission has referred to. US-VISIT for the
first time allows us to biometrically confirm the identity of
foreign visitors as they enter our ports of entry. It has
allowed us to freeze the identity of travelers, to positively
match that identity with the individual's travel document and
to determine over-stays.
We recognize the Commission's recommendation that this
program be accelerated, and this Congress has given us some
very strict deadlines. We have met the deadlines that have
previously been provided to us. This year, we are looking at
the 50 busiest land ports as our deadline. We intend to make
the very aggressive deadlines Congress has given, but if there
are ways to accelerate this and expand it, we certainly are
open to those possibilities.
In the first 7 months of operation, US-VISIT processed
nearly 7 million foreign national applicants for admission at
our air and sea ports of entry. During that time, 674
individuals have been identified through biometrics alone as
being the subject of a lookout. Of the 674 hits, 64 percent
were for criminal violations and 36 percent were for
immigration violations alone. We continue to develop the exit
capacity in reference to that program, now relying upon
biographic information for exit procedures.
Through US-VISIT, we caught a woman who had used a
fraudulent visa to enter the United States over 60 times
without being detected by standard biographic record checks. We
also stopped a convicted rapist previously deported from the
United States who had used nine different aliases and four
dates of birth. US-VISIT enhances our ability to track criminal
and terrorist travel. It also contains unprecedented privacy
protections that are very important.
Those are the international travel components for the
terrorists that may try to enter the U.S. We also, through
TSA's no-fly and selectee lists, look at domestic travel. We
have to enhance the capabilities in that arena that we are
working on.
We also are concerned about our vast land borders that many
of the Senators on this panel have raised issues concerning.
The Commission's report refers to having the capacity to
monitor and respond to intrusions across our border. That is
the basis of the Arizona Border Control Initiative, in which we
have utilized unmanned aerial vehicles, new technologies and
new personnel assigned to that difficult border region.
The 9/11 Commission report recommends that the U.S. border
security system should be integrated into a larger network of
screening points. Integration, of course, is the main focus of
the US-VISIT program that has brought together and made the
databases speak to each other from the State Department, to our
criminal databases, to our port of entry databases. We continue
to expand that integration.
Our first responsibility is to make sure that the systems
we are working on operate effectively, from US-VISIT, to our
pilot program on transportation worker identification
credentials, to our registered traveler program. But we also
recognize the need to review all of these programs and
coordinate them together because they all look at a whole range
of biometrics and we want to be able to coordinate those. The
Department is accelerating that effort as well.
Finally, on the USA PATRIOT Act, I would second the point
that this has been a very helpful tool obviously to the FBI,
but also to all who work in law enforcement. From a Department
of Homeland Security standpoint, it has given us a greater
capability to go after the bulk cash transfers of money that
was previously a reporting violation, but now is a criminal
offense. It also enhances the sharing of information between
those in the intelligence community and the law enforcement
side, breaking that wall down, that is helpful to our efforts
as well. We are very focused on these initiatives. The
Commission report will help us to push these forward even to a
greater extent.
I want to thank the Committee for their leadership on these
very important issues.
[The prepared statement of Mr. Hutchinson appears as a
submission for the record.]
Chairman Hatch. Well, thank you, Secretary Hutchinson.
Ms. Baginski is the Executive Assistant Director of
Intelligence for the Federal Bureau of Investigation. We are so
grateful to have you here today, so we will take your testimony
at this time.
STATEMENT OF MAUREEN A. BAGINSKI, EXECUTIVE ASSISTANT DIRECTOR,
INTELLIGENCE, FEDERAL BUREAU OF INVESTIGATION, WASHINGTON, D.C.
Ms. Baginski. Thank you, Mr. Chairman and distinguished
members of the Committee, for the opportunity to appear before
you to discuss the recommendations of the 9/11 Commission. The
FBI applauds and is very grateful for the work of the
Commission. We are also grateful to the families for reminding
us for whom and why we serve always.
We are pleased that the Commission has embraced the general
direction of our reform, and we agree wholeheartedly that much
work remains to be done to institutionalize that reform. We are
committed to doing everything that we have to do to do that.
Intelligence, which we define as vital information about
those who would do us harm, is a powerful tool in defense of
the Nation. In using that tool comes great responsibility:
first, the responsibility for producing and sharing that
information, and the responsibility for its accuracy; second,
the responsibility for ensuring the protection of the rights of
U.S. citizens as it is produced and collected; and, third, the
responsibility for using the Nation's resources responsibly as
you develop capabilities to do the intelligence mission.
If intelligence is vital information about those who would
do us harm, then the only true value of intelligence is in the
eyes of the users of intelligence. The only true measure of the
value of intelligence is whether or not it helps someone make a
better decision. So in the eyes of the producer is not how we
measure the value of intelligence.
When we think about the range of decisiomakers that are
necessary to defend our Nation, you could think about them as
ranging from the President to the patrolman. And those of us
with the responsibility of producing and sharing information
must make sure that they are networked together with
information that allows them to act in defense of the country.
In the end, that is what intelligence really is.
This is not the responsibility, as you say and know, of the
Federal family alone. We are part of many networks. We are part
of a Federal network. We are part of an intelligence community.
We are part of the law enforcement community. We are part of
800,000 State, local and tribal police officers who together,
everyday, protect the Nation on the front lines. They will be
the first to encounter the threat and they will be the first to
defend against that threat.
So everything that we have done in the FBI for intelligence
has been about getting our own internal act together so that we
can be the best node possible on this network, the network
itself is only going to be as effective as its individual
members coming together in that network.
My responsibility at the FBI has been to take charge of
creating an enterprise-wide intelligence capability under the
leadership of Director Mueller. Intelligence reform, I think as
the findings of the Commission have proven, at the FBI has been
a very evolutionary process, starting first immediately in the
aftermath of 9/11 very focused on counterterrorism, very
focused on getting the information out and producing strategic
analysis, and then finally culminating in the Director's
decision to create an Executive Assistant Director for
Intelligence. And I was very, very proud to take such a
position last year, May of 2003. As I said, all of our efforts
have been about getting our own internal act together, and we
still do have work to do.
In the interest of time, I only want to share with you the
core principles on which we have built that, and the first
thought is a very important one and that is that intelligence
is the job of the entire FBI, not just the job of my
organization. If we are to do it correctly, then our training,
our security, all of the components that make up the FBI must
be as optimized for its intelligence mission as it is for its
law enforcement mission.
After that core principle come four. The first is the
integration of intelligence and law enforcement operations.
Intelligence is best when it is informed by an operational
view. I think I bring my bias to that largely from my
experience in the Department of Defense, where intelligence was
always very integrated with military operations.
Secondly, at the same time that you want production
integrated, you do want an independent requirement and
collection management process. By that, I simply mean an
independent authority setting priorities, looking at what you
are doing against those priorities, consistently identifying
gaps and developing the strategies to develop sources to fill
those gaps. That is the responsibility of my organization.
Third, centralized management and distributed execution.
The power of the FBI intelligence capability is in its 56 field
offices and 400 resident agencies. It is in those numbers that
are out there. So, it is getting them to have a shared view of
the threat; a single set of operating processes, policies and
procedures; the resources to do that work; the IT to connect
them; the humans to do the analysis; and allowing that power to
perform.
Fourth, focused strategic analysis. If we spend all of our
time doing current reporting, we will be working the urgent,
and my job is to make sure we are also working the important.
In the interest of time, I don't want to go over the
accomplishments, although we are very proud of all of them. I
would just focus on a couple to get to your opening statements
because I think they are, in fact, very important and we share
many of your concerns.
In terms of information-sharing, we have tripled the amount
of raw intelligence reporting that we have done already this
year over last year, and we have doubled the number of
assessments that we have provided.
Senator Leahy. Provided to whom?
Ms. Baginski. That we have provided to the larger
intelligence community, and also to the Congress and to State
and local law enforcement.
Also on the cultural side, you are right; there is much
work to do on culture. And that is not a light switch; that
takes time to work through. There are two critical things that
the Director has championed, and the first is changing the
performance evaluations of the agents to include a critical
element that grades them against source development and
intelligence production; and, finally, the proposal for an
intelligence officer certification that requires intelligence
officer certification for all of our agents before they could
become ASACs or section chiefs, the first SES level at
headquarters.
I could detail more achievements and more accomplishments.
We think we are on a good path. We think the Commission is also
right; we have much work to do. With that, we look forward to
your questions.
[The prepared statement of Ms. Baginski appears as a
submission for the record.]
Chairman Hatch. Well, thank you so much. We appreciate all
four of you and your statements and we are encouraged by those
statements.
Let me ask a question to both Commissioners in this first
round here. Although the Commission's rejection of the MI-5
model was conditioned upon adoption of the panel's other
recommendations, such as the creation of the counterterrorism
center and the national intelligence director, Congressman
Hamilton, you have personally voiced strong objections to the
MI-5 model, regardless of the enactment of these other
measures. I would like to know what is that.
Senator Gorton, I am interested to hear your views, as
well, on that.
Mr. Hamilton. Senator Hatch, we looked at MI-5 because of
the record the FBI had in the lead-up to 9/11 was not
impressive. We were intrigued by it. We flirted with it a
little bit, but we soundly rejected it in the end. We rejected
it, I think, for several reasons.
One was the concern for civil liberties. We think the FBI
does have a tradition of rule of law, protection of civil
liberties. We were afraid setting up another independent
domestic intelligence without that tradition would not be
helpful.
Secondly, we think the FBI is moving in the right direction
now to correct the deficiencies, and to set up an MI-5 would be
terribly disruptive, would take a long time, would be very
costly--you would have to set up separate training facilities
and bring new agents in and all the rest of it--and would not
be helpful at this point in time. So the MI-5 was rejected.
Interestingly enough, when we talked with the Brits about
this, they didn't even think an MI-5 was a good idea for the
United States because the two countries are so very, very
different. So we rejected that completely and emphasized
instead the importance of focusing on institutionalizing the
reforms that are underway.
Mr. Gorton. I would simply emphasize what Lee has said. I
think one of our most fascinating and delightful interviews was
with the head of MI-5. She said, among other things, there, her
relationships are with exactly 56 chief constables in the
United Kingdom, all of whom she knows personally. Here in the
United States, of course, we have 10, 15,000 different police
agencies, many of which have developed good relationships with
the FBI agencies in their given areas. There are just too many
differences between the United States and the United Kingdom.
And you shouldn't underestimate, of course, the dislocation
of creating an entirely new agency, the potential of one
further stovepipe, one further agency not to communicate with
others. But I think the primary reasons were positive, were the
significant progress that we believe that the FBI has made
under Bob Mueller in correcting many of the failures that led
up to 9/11.
Mr. Hamilton. We see an important advantage in the FBI's
ability to link law enforcement and intelligence. They are not
separate. You cannot separate them completely. What the
investigator finds out here with regard to intelligence can be
helpful to the criminal prosecutor. What the criminal
prosecutor finds out in his investigation can be helpful on the
intelligence side. That link, that synergy is important.
Chairman Hatch. Let me just ask one other question.
Vice Chairman Hamilton, in prior testimony on this subject
you have suggested that new legislation on information-sharing
and the reforms at the FBI may not be necessary, if I interpret
it correctly, so long as the current Director takes steps to
institutionalize his reforms or the President issues
appropriate executive orders.
Could you elaborate on those observations on the merits of
entrusting some of these recommendations to the executive
branch?
Mr. Hamilton. Well, what we found, I think, as we looked at
the problem of sharing information--and that really was
critical for us. We think 9/11 came about, in part, because we
did not do as good a job as we should have in sharing
information. Whereas many of our intelligence agencies are very
good at what they do, they nonetheless have a kind of a
restricted view of the world and we think the sharing was
critically important.
Now, the whole question of integrating information systems,
the reform of them, the improvement of them, cannot be done by
a single agency or even a single department. What you need is
integration, and that can only be done across the Government,
and when you are seeking action across the Government, you have
to have the President do it. I don't know any other way to get
it done.
So we call upon the President here to lead a major effort
in the Government to develop common standards, common
practices, common approaches to the information system. I don't
think we considered that a legislative matter. We think it
really has to be done by the President, and the benefits of it
are just enormous if you can get that free flow of information
flowing across these stovepipes that we have.
Mr. Gorton. Bob Mueller had one tremendous accidental
advantage. He became the head of the FBI one week before 9/11.
He had no intellectual or emotional investment in the way
business had been done prior to 9/11 and that gave him a very
great ability to make dramatic changes.
We had two concerns, however--the very strong culture of
the FBI itself which creates internal resistance to major
change, and the fact that no individual is going to head it
forever, and we have no idea who his successor may be. So we
want these very positive changes to be institutionalized.
I think a major reason that we said that this could be done
by executive order is to freeze a particular structure in the
law makes it extremely difficult to change. Whether every
element of an original change through executive order is a
hundred percent correct is certainly a matter which one can
question, and there is a somewhat easier facility to make
adjustments if the reforms are done by executive order. We do
think they need to be institutionalized and can't just be left
up to the Bureau itself, but we don't think it absolutely
necessary that they be put into statute.
Chairman Hatch. Thank you, Senator. My time is up.
Senator Leahy.
Senator Leahy. Well, thank you, and thank you again to the
four witnesses. To follow up on what Senator Gorton said. The
institutionalizing of some of these reforms is very necessary.
We sometimes rely too much on ad hominem reform, which simply
allows those within the bureaucracy who don't want a reform to
hunker down and just wait for the person who feels that way to
leave, because ultimately people in these positions come and
go.
Congressman Hamilton, again, please tell Governor Kean also
of our great respect for what he has done.
Under Secretary Hutchinson, we talk about how we get
information back and forth, and if I might be allowed just a
little bit of parochial bragging, you and I visited the Law
Enforcement Support Center, the LESC, in Williston, Vermont,
the Nation's primary database and search engine for criminal
aliens.
As you know, whether it is two o'clock on a Sunday morning
in the middle of a three-foot--and that is not an
exaggeration--snowfall or in the middle of a sunny summer
afternoon, they are operating. They answer 750,000 queries a
year from law enforcement in 50 States. They answer them within
15 minutes or sooner.
Would you say this is something that we could look at as a
model for talking about how you do real-time sharing.
Mr. Hutchinson. I think the Law Enforcement Support Center
in Vermont is an unheralded example of some of the things that
are being done right in sharing information with our State and
local officers. The fact that the men and women there at the
facility in Vermont are loading into the immigration file of
the NCIC, National Crime Information System, allows all of that
information on immigration violators to be available to local
law enforcement.
As a result of that effort, we have increased the detainers
that have been lodged, the number of absconder files that are
entered into the system, and we have actually decreased the
number of alien absconders that are in this country. So we
certainly applaud that effort and we expect great results in
the future on it.
Senator Leahy. Congressman Hamilton and Senator Gorton, I
am reading from your final recommendations with respect to the
FBI. You say that the Congress should make sure funding is
available to accelerate the expansion of secure facilities in
FBI field offices so as to increase their ability to use secure
e-mail systems in classified intelligence product exchanges.
We have already given the FBI hundreds of millions of
dollars to upgrade its information technology systems to bring
the FBI into the 21st century. I have spoken before about how
prior to 9/11 they were deciding how they could put agents on
airplanes to bring photographs of suspected hijackers to
different parts of the country, something any grade school kid
could have e-mailed to someone else.
We spent hundreds of millions of dollars on Trilogy. It is
way over budget. It is nowhere near completion. Some think it
never will be. I wonder if money is the only thing because you
also recommend that the Congress should monitor whether the
FBI's information-sharing principles are implemented in
practice.
But, for the Congress to do this, they have got to get
answers from the Department of Justice and we don't get them,
whether it is Republican Senators or Democratic Senators
asking. I can give you a list of things that have been asked
for years. They just don't bother to answer or send non-
answers.
If it sounds like I am frustrated, I am, because we have
shown a willingness to authorize the money--and I am also on
the Appropriations Committee--and the willingness to
appropriate the money for all of this, yet we have no way of
finding out what goes wrong after we appropriate it.
How do we get this information? What is your
recommendation?
Mr. Gorton. I think if there were an easy answer to that
question, Senator Leahy, you would have long since come up with
it. Obviously, it is not only with the FBI and the Department
of Justice that hundreds of millions of dollars have been
appropriated to bring them into the information age, but many
other departments as well.
Going beyond our recommendation, perhaps some of the
concerns are with the elaborate nature of the acquisition
process in the Federal Government. The information age
revolution goes so fast that by the time we go through our
normal procurement processes, we are in the next generation.
That may be one thing to look at.
We didn't attempt to become experts in procurement policies
or the like. We saw a lack of an ability within an agency to
share information and have recommended changes. You also may
note in another part of our report we talk about Congressional
oversight and show deep concern with the fact that Asa here
must spend a huge amount of his time--you have said how many
times he has come to this Committee.
Senator Leahy. We were referring to all committees.
Mr. Gorton. Yes, 88 committees and subcommittees that the
Department of Homeland Security must report to. I suspect that
Congressional oversight would probably be sharper if it were
somewhat more limited.
Senator Leahy. In this Committee, somebody once said, I
think, Dracula fears holy water less than the Attorney General
fears coming to this Committee. We don't see him, and we like
him. I mean, we are all friends with him and we all served with
him, but getting answers is very, very difficult.
I will give you one example. Three years ago, in the
PATRIOT Act, we had a requirement, not a request, but a
requirement that the Attorney General prepare a comprehensive
report on the FBI's translation program. We have never gotten
it, even though that is vital to our understanding of virtually
every piece of intelligence information from the Middle East.
I know this particular section very well; I wrote it. The
PATRIOT Act required it because ensuring the FBI's translation
program is working to its potential is important to national
security. There is an awful lot of data out there that is not
translated. We have a huge ability with FISA, without going
into the nature of some of our intelligence-gathering
abilities, to get all this information, but then it sits there
untranslated. We can't even get something that is required by
law from the Attorney General that has been required for 3
years to tell us what is happening.
What do we do about that?
Mr. Gorton. Ultimately, you have the purse strings. That is
the ultimate control.
Senator Leahy. Thank you. My time is up. I will come back
later.
Chairman Hatch. Thank you, Senator.
We will turn to Senator Cornyn, who was here first.
Senator Cornyn. Thank you, Mr. Chairman. Thanks to the
panel for being here. I have two questions, as time permits.
One has to do with continuity of Government and the other has
to do with border security, and I would like to direct my first
question to Congressman Hamilton and Senator Gorton.
It has been almost 3 years since Flight 93 was diverted and
crashed in a place other than which it was originally intended
to crash, and that is possibly the United States Capitol or at
the White House, potentially decapitating the United States
Government. Since that time, a bipartisan Commission and a
joint venture of the Brookings Institution and the American
Enterprise Institute have come up with some very good, in my
opinion, recommendations for the Congress to undertake with
regard to presidential transition and Congressional continuity.
But so far, we have had perhaps even less success than the
Government has had generally in improving our situation since
9/11 in this area.
I would ask perhaps, Congressman Hamilton, for you to first
address that, and then Senator Gorton. How urgent do you
believe it is for Congress to deal with the matter of
governmental continuity, where the alternative if we don't do
anything--and there is a successful decapitation, debilitation
of the Congress--the alternative is essentially martial law?
Mr. Hamilton. Senator, we did not address your specific
proposal with regard to a constitutional amendment, nor did we
delve greatly into the question of continuity of Government. We
had a statutory mandate. We interpreted that mandate fairly
carefully or strictly, and we did not think that it was clear
that we should get into the continuity of Government question.
We know it is a major concern here in the Congress, as it
should be. So we cannot speak as a Commission with regard to
your particular proposal.
We do think that you are putting your finger on a very,
very important problem, however, and in the report we address
the question of transition. We think that the country is most
vulnerable, or very vulnerable perhaps I should say, during a
period of transition of Government. And we make some
recommendations with respect to requiring a President-elect to
submit nominees in the national security area, and for the
Senate to act to accept or reject those nominations within a
30-day period, because we are concerned about that transition
period.
Now, your proposal has a lot of similarities with that. It
is broader than ours. You speak about all the Cabinet members,
as I recall, in your proposal, not just the national security
proposals. So we are very receptive to proposals on continuity
of Government, but we did not endorse any particular approach
to them. We do appreciate your initiative.
Mr. Gorton. We were not able to determine with absolute
certainty the target at which Flight 93 was aimed, but I think
all of us believe that it was much more likely than not that it
was the Capitol. The basis of your concern is well taken.
As Lee has said, we deal with maybe the first cousin of
your proposal in dealing with transition. We were particularly
struck by the attack on the Cole which took place in late
October of the year 2000. Within a couple of weeks, there was a
preliminary determination of responsibility. A final
determination literally took years, but in that transition time
neither administration felt certain enough or concerned enough
to deal with it and it went entirely unanswered.
That was the reason, or a major reason that we went into
the transition to try to get national security officers into
place as quickly as possible. You have taken a step beyond that
and gone beyond anything we thought about in suggesting that
the sitting President make the nominations for his successor. I
think that is an absolutely intriguing idea, as are your ideas
with respect to the continuity of Government.
We looked at our charge and we simply didn't get into it.
But is it a vitally important issue and one that we think
should be given serious consideration by the Congress? The
answer to that is a total affirmative.
Senator Cornyn. Thank you for your answers. I do understand
it was not perhaps within the scope of your Commission, but I
do appreciate your responses. I wish I could claim originality,
but there are a lot of very smart and very dedicated people who
have made some recommendations which I have tried to bring
forward together with others in Congress to address those.
Secretary Hutchinson, I want to tell you what an
outstanding job I think you and the Secretary have done in
trying to address the border security concerns we have. But I
can tell you, as you know and as we have discussed, as a Texan,
with a 1,200-mile border with Mexico and a southern border of
Mexico leading down to Central America, one of the most porous
in the country, we still have a long way to go. And I know you
recognize that.
I would like to ask you specifically about how do we
conserve our resources, or I should say direct our resources in
a way that goes after those who would come across our borders
with malicious intent from those who want to come across our
borders with benign, perhaps even beneficial intentions.
I speak specifically of whether you think a temporary
worker program, something that would deal not necessarily with
people who are just wanting to come, but even people who are
already here and working in our economy--the last estimate I
heard is about 6 million in that workforce--do you think a
worker program and immigration reform need to be coupled with
our efforts at border security?
Mr. Hutchinson. Thank you, Senator Cornyn, particularly for
your leadership and push on a number of border security issues.
In reference to the borders, first of all, I think it is
important that we understand the difference between those that
come into our country to harm us versus those that come in for
an intent to get a job, support a family. The entry is still
illegal. We have a responsibility to enforce the law in all
respects, but we still have to recognize a distinction there.
Secondly, as you indicated, the pull, the magnet that
brings in those that are coming in for job purposes or other
purposes into this country really diverts our resources,
consumes our resources, as compared to focusing on those that
are coming in to harm us. So the temporary worker enhances
security, gives a legal path, and it really mirrors what we did
last week with two announcements, which was to reward those
that are seeking a legal means to come to this country and to
deter and discourage those that are trying to come in
illegally. So I think the temporary worker program does that.
It discourages illegal flow, and thereby it enhances security.
Mr. Hamilton. Senator, may I just add--I know you didn't
direct the question to us, but it raises a point that is very
important to the Commission and that is the tie between border
security and immigration. I think what we are trying to say in
our report is that that is an enormously important tie. You
cannot put those two things in separate boxes and deal with
immigration over here and border security over here.
We believe you have got to have a biometric entry/exit
system that is comprehensive. People come into this country all
sorts of ways, not just across the border in Texas. They come
across there in great numbers, but many, many ways they get
into this country, and we have got to have a system that is
comprehensive enough to deal with all of these people coming
in.
Almost all of them come in with very benign purposes. We
want them to come in, but we have got to be able to sort them
out. We think officials have to have access to files on the
visitors and the immigrants that are coming into this country
so that they can make a judgment and make it quickly, as they
often have to do.
We think you have to have an exchange of information on
these people with other countries because most of them come
from other countries, I guess by definition. Real-time
verification of passports--we cannot do that today, but we have
to try to do it and work toward that. And we see, of course, a
growing role for partnership with State and local officials
because the Federal Government simply is not going to be able
to do it all. Part of all of this is secure identification of
U.S. citizens, as well.
So we see this as an enormously important part of the
national security of the United States. These people got into
this country all sorts of ways. They cooperated with corrupt
officials. They used fraud. They lied. They worked with human
traffickers to get into the country. We have got to be able to
identify these people. We have got to get the information on
it, and once we get the information on it, we have got to put
it into a center where it can be accessible to everybody.
And beyond intelligence, somebody has to be in charge to
take charge of the case, to manage the case, which was not done
on 9/11. Nobody was in charge, nobody managed it. When we
learned about these fellows out in San Diego, we had bits and
pieces of information about them and nobody put it all
together.
George Tenet was asked by us--when he learned in August of
2000 about Moussaoui in Minneapolis and we asked him what did
he do about it. He said, well, I put some of my CIA people to
work with the FBI. And we pushed him a little harder on it and
he said this was the FBI's case.
Now, I don't think his answer was wrong, but it just
illustrates what happened prior to 9/11. Nobody took charge of
the case, nobody managed the case, and that is what we are
trying to correct with our proposal on the national
counterterrorism center. You have got to have somebody not only
that collects the information, but once the information is
collected, somebody has to manage it and say I am taking charge
of this.
Chairman Hatch. Thank you.
Senator Kennedy.
Senator Kennedy. Thank you very much, and I thank our
panelists for remarkable public service. We can tell from
listening to Lee Hamilton how strongly he feels about this
undertaking, and I know it is a feeling that is shared by all
of you.
Right here is a book of hearings and it is hearings that I
held in 1971 about what has happened to other presidential
commissions, and the fact was nothing, nothing; they are all
gathering dust. These were the Scranton Commission on Campus
Unrest, Katzenbach on Crime, Eisenhower on the Causes of
Violence, Hesburgh on Civil Rights, many others on health and
the list goes on. That isn't what is going to happen to this,
but it is an important historical fact about what the history
has been. That is why I think there is a sense of urgency about
taking action at this time.
Let me go to a very important part of the recommendations
that were mentioned by your joint statement, and also Asa
Hutchinson, in the jurisdiction of this Committee and that is
the sections on privacy and civil liberties. You make the very
important point that the new focus on collecting and sharing
more and more information about people raises these serious
concerns.
You say that no one in Government is now responsible for
making sure that everything that is done in the name of
fighting terrorism is done consistently with the historic and
essential commitment to personal privacy and liberty. You
recommend that an office be established to handle this issue
government-wide. Both of you have generous comments about it in
your testimony.
I would like to just sort of ask rhetorical questions and
you will get the thrust of it. I am interested about how
serious the Commission was in making these recommendations and
whether all of you will put the full weight of credibility
behind it and make it clear that this office, to be effective,
needs adequate resources and access and clout if it is going to
be able to be effective in doing what you have outlined would
be so important to be done.
In the 9/11 Commission report, it talks about the
possibility of setting up a panel similar to the Foreign
Intelligence Advisory Board. I am interested in, one, the kind
of commitment that all of you feel we should have on this, how
important it is, and then whether this ought to be an internal
or external board. Should it be just left to the particular
agency or should it be a panel that is established within the
Government, or should it be established inside the Government
and one that would be outside but working like the Foreign
Intelligence Advisory Board?
Mr. Hamilton. Well, Senator, we are very serious about it.
Look, in order to get at the terrorists, you put into place a
lot of things that are intrusive on the lives of Americans. We
encounter it everyday. We have become more tolerant of those
intrusions because of our fear, because of our concern about
the terrorists.
But everywhere you turn, including in our report, you keep
stacking up restrictions on Americans and you expand the powers
of Government in the FBI, in the DHS and a lot of other places.
Now, that has to be a concern to everybody and we didn't know
exactly how to deal with that, but one of the things that
struck us was that there was not in the Government any single
place across departments, across agencies that looked at the
questions of privacy and civil liberties.
I heard--I have it in mind; I know it is highly classified.
I can't talk about it, except to say it is an astounding
intrusion into the lives of ordinary Americans that is routine
today in Government. Now, a lot of this stuff is highly
classified, and so I am very committed to the idea of a board.
And you asked what resources, what power should it have. It
ought to have adequate resources. It ought to have a very tough
investigative staff and it ought to be a very active board and
agency, and it has to be able to cut across all departments. I
don't know how you set that up, except you set it up through
the President and the White House.
Mr. Gorton. Senator Kennedy, I remember very distinctly
that this subject came up in the initial organizing meeting of
the 9/11 Commission, and it flowed through from the first day
to the last. It informs our general statement that as the
Congress or administration considers new powers that it has got
to weigh what the goal of the exercise of those new powers is
against what the effect of those new powers will be on
individual citizens within the United States. It informs the
recommendation that we make with respect to this board, this
agency, this individual, whose sole responsibility it will be
to see to the civil rights of all Americans.
One of the decisions we tried to make--it has been very
difficult, I can tell you, in the four weeks of making speeches
on this subject. Everyone wants to know, well, what is your
most important recommendation? How would you rank them one
through five?
We tried to avoid that. We think that they are all of great
importance and we think that this one, or the connection of
these two or three are of great importance as we fight
terrorism in the United States.
Senator Kennedy. Well, that is powerful support.
Secretary Hutchinson, border security, entry-exit--we have
talked about that here. This has been talked about since the
Hesburgh Commission on Immigration going back 25 years. We
passed a border security bill. We are doing reasonably well in
terms of the entry, but not very well in terms of the exit.
There have been some estimates that in order to have a really
effective system, it is going to take 7, 8, 9 years.
Last year, for example, we had actually a reduction in
requests by the administration in terms of border security,
somewhere around $300 million and it was reduced by over $100
million, and efforts were made in a bipartisan way to restore
it.
Let me ask you about the exit aspects just briefly, when
you think that can be effective so that we have comprehensive
entry and exit, just as quickly as we can because there is one
other area I want to cover.
Mr. Hutchinson. We have an exit capability that is limited
to biographical information at present, and so we do have
information that comes in from our airline departure
information so that we can see when people leave our land
borders as well. We need to add the biometric feature to it,
which we are testing at about 15 airports now. We will get the
right technology, and then we move to our land borders. This is
an enormously challenging prospect and funding is a part of it.
We can go back and forth on that, but the administration did
request $400 million in 1904.
Senator Kennedy. Ms. Baginski, on the watch list, I want to
know--and my time is running out here--about how this works for
the average person. Let me give you an example. I got on the
watch list last April. I was taking a plane to Boston and I got
out to U.S. Air and I came up at quarter seven and I wanted my
ticket. They said we can't give it to you. I said, well, wait a
minute, here is a visa; there must have been a mix-up. And the
person behind the gate said I can't sell it to you; you can't
buy a ticket to go on the airline to Boston.
I said, well, why not? We can't tell you. Well, I said let
me talk to the supervisor on that. This is at five of seven.
The plane is about to leave, and finally the supervisor said
okay. I thought it was a mix-up in my office, which it wasn't.
I got to Boston and I said there has been a mix-up on this
thing in Boston. What in the world has happened?
I tried to get on the plane back to Washington. You can't
get on the plane. I went up to the desk and I said I have been
getting on this plane for 42 years and why can't I get on the
plane back to Washington. They said you can't get on the plane
back to Washington. So my administrative assistant talked to
the Department of Homeland Security and they said there was
some mistake. It happened three more times, and finally
Secretary Ridge called to apologize on it. It happened even
after he called to apologize because my name was on the list at
the airports and with the airlines, and Homeland Security
couldn't get my name off the list for a period of weeks.
Now, if they have that kind of difficulty with a member of
Congress--my office has a number of instances where we have the
leader of a distinguished medical school in New England, and
the list goes on--how in the world are average Americans who
are going to get caught up in this kind of thing going to be
able to get to be treated fairly and not have their rights
abused?
Then just finally if you can just tell us what the
justification was for the investigation of those FBI agents out
in Colorado with the six agents interviewing that 21-year-old
woman that has been reported in the paper.
Thank you.
Ms. Baginski. I will deal with the last issue first because
I think I can deal with that more succinctly. We have read the
New York Times representation of our activities and compared
that to the actual activities. I think as you know, we engaged
in interviews of people based on specific intelligence that
they planned to perpetrate violent acts at the Democratic
National Convention, and we are also looking at the Republican
National Convention in that dimension.
There are many of you who I think are rightly concerned
about that in light of the press treatment. What we have
offered to other committees and what we would like to offer to
you is a written accounting step by step of what was done so we
can separate fact from fiction on this and hopefully ease your
concerns and those of the American people.
Chairman Hatch. We would appreciate that.
Senator Leahy. I would like one, too.
Ms. Baginski. Yes, sir. On the issue of the--
Chairman Hatch. How about the conspiracy to stop Senator
Kennedy from getting where he wants to go?
[Laughter.]
Senator Kennedy. Notice that I didn't accuse the
Republicans of doing that.
Chairman Hatch. No, no, but it was implied, we know.
[Laughter.]
Ms. Baginski. I think actually the answer to that is a
combination of the two of us.
Asa, do you want to start?
Mr. Hutchinson. If I might, Senator, we do regret that
inconvenience to you.
Senator Kennedy. No problem, no problem.
Chairman Hatch. Asa, don't be so quick to say that.
[Laughter.]
Senator Leahy. We have had this problem with Irish
terrorists before.
Mr. Hutchinson. It is important for the average citizen to
know the process. They can call our TSA ombudsman, who will
take the information down, verify that their name is not the
same as what is confusingly similar on the list. And we can
actually enter into the database that they have been cleared,
so that that should be prevented in the future. So there is a
process to clear names, but it does illustrate the importance
of improving the whole system, which we are very aggressively
working to do. We need to own that no-fly list.
Thank you very much, Mr. Chairman.
Senator Kennedy. My time is up. Thank you, Mr. Chairman.
Chairman Hatch. Ms. Baginski?
Ms. Baginski. Just to complete the part of it in terms of
the responsibility for the authoritative list, of course, on
the international side it resides with the TTIC, the Terrorist
Threat Integration Center, so the vetting of those names. And
then, of course, for the domestic side, it would come from the
FBI. And those are fused, I think, as you know, in the
Terrorist Screening Center. So I do have some responsibility
for the pedigree of that information that comes from
intelligence, and I want to assure you that we review that on a
regular basis.
Chairman Hatch. Thank you.
Senator DeWine.
Senator DeWine. Thank you, Mr. Chairman. Let me thank all
of you for your great work and the very wonderful job each one
of you has done.
Ms. Baginski, let me ask you the first question. You talked
about in great detail improvement in the area of intelligence
and information. The September 11th Commission outlined in
great detail a lot of the problems, and I think we all are very
familiar with the story leading up to September 11th.
Explain to me in layman's terms what is different today
from what was the situation on September 10th as far as the FBI
is concerned, and in terms of an FBI agent. Senator Leahy has
described the problem and our continuing frustration, and I
know Director Mueller has the same frustration with the
computer system that is not progressing as fast as we would
like it to.
What is the difference today for an agent who seeks
information or who needs information or who wants to share
information, and not in general terms, but in real specific
terms?
Ms. Baginski. I can answer this in terms of technology and
also--
Senator DeWine. No, I don't want that. Give me an example
that I can understand. What matters? What is the difference
today?
Ms. Baginski. I think there are three areas and I will try
to cover them in as much detail as I can. First--
Senator DeWine. No, no, I don't want three areas.
Ms. Baginski. You want a specific example?
Senator DeWine. Yes. Give me an example; tell me a story in
the next 5 minutes. What difference does it make? How are we
any better off today than we were prior to September 11th? Tell
the American people why they should feel better.
Ms. Baginski. On the first order, terrorism is the number
one priority of every member of the FBI. Since 9/11, as you
know, with our responsibility, we have expanded our number of
joint terrorism task forces, which are--
Senator DeWine. Excuse me. I am sorry.
Ms. Baginski. I am still not doing what you want. I know
you want a specific example.
Senator DeWine. Okay, no. Tell me what an FBI agent knows
today or can do today that he or she couldn't do.
Ms. Baginski. Okay.
Senator DeWine. What can they share? What comes up on their
computer screen? How is that?
Ms. Baginski. I got it. Before 9/11, agents could not send
with any ease e-mails to one another across a secret network.
Now, that can be done. Before 9/11, agents did not have access
to other agency intelligence production in the joint terrorism
task forces, and now they do. So they can actually go into a
database and enter on that like system and actually access that
information and find out if there is other information that
they need and can act upon in terms of working the case.
Prior to 9/11, all cases in the FBI, I think as you have
all said, would have been opened first as counterterrorism
cases in the sense of prosecution. Post 9/11, all cases in the
counterterrorism arena are opened as intelligence cases first,
so that instead of the intelligence component being a sub-file
in the larger case, the intelligence is driving that and is one
of the tools in the tool kit that the agent brings to bear on
neutralizing a threat.
Prior to 9/11, the intelligence analysts at the FBI could
not with any ease ask questions of data that was aggregated for
them and do federated queries across the database. Since 9/11,
we can.
Senator DeWine. What kind of search can I do now?
Ms. Baginski. If you are an analyst, you can do a search
against a finite body of information at the secret level on one
network and at the top secret and higher on another network
that, in fact, is exactly what you can do in your living room.
You can ask questions of the data and the answers will be
pushed to you.
Senator DeWine. What if I am an agent in San Diego and I am
working on a particular case and I am wondering if there is a
similar case somewhere else in the country and I want to put in
a series of words? Can I do that?
Ms. Baginski. You can. You can do a word search and you
will get the answer.
Senator DeWine. I will now get the answer?
Ms. Baginski. Yes, sir.
Senator DeWine. What can't I do now that I should be able
to do in 2 years or 3 years or 4 years? What are you frustrated
about? What are you upset about? What bothers you today that
you can't do?
Ms. Baginski. I think there are three critical areas. The
first would be being able to operate in a top-secret, code-word
environment, which is connected to the Commission's
recommendation to help us with our secure, classified
information facilities.
All of the field offices have secure, classified
information facilities. They are very, very small areas. I
sometimes joke that they look like closets, and they generally
have an Intelink computer there. What I am saying is if we want
to be part of this network in which the larger intelligence
community operates, we need that kind of--
Senator DeWine. Excuse me. I don't understand what that
means. Does that mean that only a limited number of agents have
access to that? Is that the problem, or what does that mean?
Ms. Baginski. Well, the physical access is determined by
your security clearance. So, of course, everyone that is
cleared to the secret and top secret area, which is the way
that we do our clearances, would have access. My point is it is
usually one or two terminals which--it is the hardware that is
limiting, if you understand. The secured, classified
information space is necessary to be expanded to accommodate
that hardware and the network.
Senator DeWine. So that creates the problem of what, just
not enough people being able to get at it that need to get at
it?
Ms. Baginski. Yes, sir. As I expand the number of analysts
that are out in the field, which is what I really need to do, I
am going to need more space for them to access that classified
information.
Senator DeWine. Would every field office have access to it,
though?
Ms. Baginski. Yes, sir.
Senator DeWine. What other problems are you having that you
would be able to solve in the next couple of years when the
system is totally up?
Ms. Baginski. The other, I think, issue for all of us is
what I think Senator Leahy was referring to, which is the
automatic entry of information into corporate databases.
Trilogy, as you know, was three initiatives. Hardware is there;
the LANs are there. It is the application, the virtual case
file case management application, that allows the automatic
entry of this information into corporate databases for follow-
on analysis. That is the part that is delayed. So we have
delivered two, except for this application.
I think the solution of that in the hands of our chief
information officer will help the robustness of my analysts'
database, which is called the Investigative Data Warehouse.
That will help my analysts have the breadth they need of
information to actually do the queries against.
Senator DeWine. When do you expect that to be up?
Ms. Baginski. We will have some delivery of that by the end
of this year, and I would like to get back to you with a
specific date because I am actually not as current on that as I
should be.
Senator DeWine. Sure.
Ms. Baginski. Lastly, for me, I have a training issue and
it is not a small issue and it is going to require an
investment both in terms of facilities and in terms of
expertise and in terms of time.
In building this cadre that has been recommended to us by
the Commission, and I think very rightly recommended by the
Commission, there is a wonderful training capacity in Quantico.
There is a very powerful FBI, and I would say law enforcement
brand in Quantico, but to build in there that same expertise
and capacity for teaching intelligence to the agents and to the
analysts and to the linguists, and then to our partners in
State and local law enforcement--that actually is an investment
and is going to be both in time and in some facilities and
infrastructure.
I am very pleased with the work we have done. I just want
to share with you very briefly--we have just overhauled our
basic analysis training, seven core learning objectives. Those
learning objectives are now being worked into the new agent's
class. They are the same learning objectives, the same modules,
and the magic will be that we will have agents and analysts
doing joint exercises together when they are in training. Now,
we need to offer that to our State and local partners. The
National Academy has been very powerful in that partnership. We
need to be able to offer that same thing.
Thank you.
Senator DeWine. Thank you very much. I appreciate it.
Chairman Hatch. Senator Leahy wanted to interject here.
Senator Leahy. I am not sure I fully understood. To follow
what Senator DeWine was saying, and I am not sure I understood
the question, if you want to do a search, for example, could
you put a series of words in the same search, like, for
example, southwestern, alien, flight training? Could you put
that all in as one thing and have it searched down there, or do
you have to put in each word separately in the search?
Ms. Baginski. We can, in fact, in the Investigative Data
Warehouse, which actually started out as something called the
Secure Operational Prototype--it was all based on terrorism--we
can do the string that you are talking about, the multiple
words.
Senator Leahy. And you can do that in--
Ms. Baginski. I beg your pardon?
Senator Leahy. You can do that in--
Ms. Baginski. In Trilogy? Is that what you mean, sir?
Senator Leahy. Trilogy, yes.
Ms. Baginski. IDW is actually something that I would call
separate from the Trilogy package that you and I have been
talking about.
Senator Leahy. You can do it in Trilogy, though?
Ms. Baginski. Trilogy is not a data warehouse that you
would search against. That is why I am having trouble answering
the question. Trilogy is hardware, as you pointed out,
computers on desktops. It is local area networks, wide area
networks for the connectivity, and it is the case management
application.
The case management application then feeds the Integrated
Data Warehouse that I am describing that allows me to do the
search.
Senator Leahy. You could do a multi-word search?
Ms. Baginski. In the Integrated Data Warehouse, yes, sir.
Senator Leahy. Thank you.
Chairman Hatch. Senator Kohl.
Senator Kohl. Thank you, Mr. Chairman.
We appreciate very much your appearance here this morning.
I have three questions that I would like to address to the
Commission members, and I think all of us here and people who
are watching on television are interested in your opinions on
these questions because you have been so immersed and you have
a written a report which is on the bestseller list. So,
obviously, all Americans are concerned with your work and with
what is going to happen to your work.
As Senator Kennedy pointed out, the history of commissions
in terms of their effectiveness and implementation of their
recommendations is not good. In the case of the world in which
we are living right now, your recommendations are high on the
list of every American's thoughts.
So, first of all, on your arguably most important
recommendation that we have a national intelligence director to
coordinate all the things that we are talking about this
morning and the things that you have recommended in your
report, already we have seen that the Secretary of Defense has
basically come to a disagreement with you on the need for a
national intelligence director or on the efficacy of such a
person. The President himself, I believe, has said perhaps a
NID, a director, but not with control over budgets and
personnel.
Now, the way Washington works is if the Secretary of
Defense, who spends 80 percent of the intelligence money that
we allocate, and the President are not in support of that
recommendation, what are the chances of getting that through,
number one?
Number two, this is all about fighting terrorism and making
Americans more secure. In the Muslim world today, our standing
is as low as it has ever been. The number of people who are in
strong dislike, if not outright hatred, of the United States
and willing to do as much damage as they can to the United
States--the number of people in that category is growing ever
higher everyday. How are we going to ever win the fight on
terrorism and make America more secure if, in the short term,
if not the long term, we are not making progress in this area?
Number three, I would like to ask you about the color
coding system. Does it make any sense, in your opinion, for us
to have a national color coding system; for example, the
orange, which is the second highest alert, to place the whole
country on an orange alert, when, in all probability, it is
specific parts of our country that need to be placed on alert?
Do we need to sharpen up that color coding system to make
Americans all across our country more aware of who is at the
greatest risk and who is at minimum risk when, in fact, we
issue that kind of a warning to the American people?
So it is three things--the national intelligence director,
our problems within the Muslim world today and how are they
going to manifest themselves going forward, and the color
coding alert system.
Mr. Gorton. You have covered the waterfront, Senator Kohl.
Senator Kohl. Well, you have been thinking about this now
for months and months and months, and you obviously have
opinions that are of great interest to those who are watching
on television.
Mr. Gorton. First, on the national intelligence director,
on that system, remember we pair two things--the national
counterterrorism center that we think is vital and we have
discussed earlier, whose functions are just counterterrorism,
and a national intelligence director, who will cover the
waterfront as far as intelligence is concerned.
In one sense, ours is a very conservative recommendation
because we go back with this National intelligence director to
what the CIA Director was supposed to have been in 1947 when it
was created, which was the overseer of all of the intelligence
of the United States.
Well, first, of course, the CIA has become bigger and more
complicated. Just running the CIA is clearly a full-time job.
But, secondly, because of the absence of any effective budget
control over roughly 80 percent of the budget, no CIA Director
could really fulfill that function in any event.
So what we think is that 50 years ought to have taught us
that if you are going to have someone who oversees all of the
intelligence activities of the United States and does planning
for all of them, that individual should have control over at
least the supervision of the budget and some very real
influence over personnel, as well. And we do feel very strongly
about that. If you just do again what you did in 1947, you
aren't going to have any more effect. That position must have
power.
I guess personally I am less pessimistic than you are. I
think the administration's objections to it at least are
softening, but it is going to be a decision Congress is going
to have to make. And we feel very, very strongly that if you
are going to create a national intelligence director, that
individual should have budget authority and should have some
personnel authority.
Certainly, no national intelligence director is going to
starve the military of the intelligence information that it
needs. It is impossible to imagine.
Second, we make recommendations with respect to the war on
terrorism on three levels, and we distinguish those levels. One
is that in dealing with those enemies that are absolutely
irreconcilable, you know, we simply have to recognize they
declared war on us a long time ago, and we are at war with
them, and it should be conducted as a war, and we need to deny
them sanctuaries and the like. The overwhelming challenge is
the one that you raise, is how do you separate that large but
small in percentage group of enemies from the vast majority of
Muslims who are peace loving and want better lives for
themselves and for their children. That is a tremendous foreign
policy challenge, but it is a challenge that we must make. We
make some general suggestions in that connection, more specific
with three countries, but general suggestions about carrying
out our own message.
Finally, on the color code system, I share your
frustration. Just to tell everyone in the United States you are
on orange alert now, that makes it even harder to get into an
airport or on an airplane, but does not tell any local
enforcement that there is some specific challenge in your
place, seems to me at least to be rather frustrating.
I think the more recent one, where the warnings were very
specific, is the way in which we should go. Now, there is still
going to be criticisms as there have been of that, but I do
think that at least those are meaningful.
Now, the real paradox in this country today is that we have
not had any other attack since 9/11, and every time there is
not one, people become more relaxed, and to a certain extent
more complacent. Even if a warning from Homeland Security may
have prevented an attack, we will never know that it did, and
it leads to a certain degree of cynicism with respect to
whether or not we were calling ``wolf.'' That is a challenge.
It is a challenge any administration will have. But I do think
the more specific way in which the Department is operating is
better than that national orange alert.
Mr. Hutchinson. Senator Kohl, could I just jump in there?
That we certainly share the reservation about raising the
threat level nationally if we have intelligence that we can
narrow it. We are very grateful that the intelligence
collection was very effective this last time. We were able to
do it narrow in the financial sector in certain geographic
areas, so we recognize, and we do evaluate the burden that
falls nationally with the law enforcement community when we do
raise that threat level, and we are certainly looking, with
Congress, for ways to refine that system.
Senator Kohl. Congressman Hamilton, would you--
Mr. Hamilton. Senator Kohl, first of all, I have been
getting an inferiority complex here, hearing all these stories
about ineffective presidential commissions and Congressional
commissions. I want to respond to that, and say that there are
some commissions that have worked. The Greenspan Commission on
Social Security reported. The Congress adopted it in total, a
few months before the election, as I recall. I served on the
Hart-Rudman Commission. This gentleman would not be sitting
here today if it had not been for our recommendations. We
recommended the Department of Homeland Security. So some of
these commissions do have recommendations adopted.
You asked what are the changes of the National Intelligence
Director and the National Counterterrorism Center being
adopted. That is a tough one. Look, we understand we have put
forward here a fairly radical proposal. The President has
endorsed the idea of a National Intelligence Director. He has
endorsed the idea of a National Center for Counterterrorism.
What is not clear is what powers he would give to those
positions, and I think that is still a matter very much under
discussion in the administration.
Secretary Rumsfeld expressed a wariness. He did not object
to a National Intelligence Director. He just expressed a kind
of a wariness about the idea. That is understandable.
Look, we have a tough problem here. On the one hand the
military says, we want all of this intelligence to protect the
war-maker, and I do not know anybody that wants to make it more
difficult for the war-maker. We want to provide information for
the war-maker, and none of us want to limit the intelligence
flowing to the war-maker. But you also have an obligation to
protect the American people. In order to protect the American
people, you have to have intelligence not just flowing to the
war-maker, you have to have intelligence flowing to this
policymaker, the strategic and the national intelligence.
Where do you draw the line between strategic and national
intelligence on the one hand, tactical intelligence on the
other hand? In many cases it is very easy, very simple. But
there are a number of areas, particularly in the areas in which
the Defense Intelligence Agency is involved, for example, where
it gets a little murky, and the Secretary is right to be
concerned about that. Take the U-2. The U-2 flies all over the
place, takes a lot of pictures, and many of those pictures are
of enormous importance to the tactical commander on the field.
Nobody wants to interrupt that. But that U-2 also takes
pictures that are tremendously important to the policymaker.
Who should control that asset?
What I am suggesting here is that the debate that is going
on is not a frivolous one. It is not an ideological one. It is
a very practical one, and the issues are not always clear-cut.
They often are. So I have welcomed the support that has been
shown to the Commission's recommendations. I understand a lot
of recommendations we made raise big questions in the FBI, big
questions at the DHS, and certainly big questions at the DOD. I
think we can work through this and come up with a solution that
is reasonably satisfactory.
The second question about the Muslim world, Senator Gorton
I think was on the mark there. The distinction that has to be
made is this very, very small group of people who are out to
kill us, al Qaeda, Osama bin Laden and his top cohorts. That is
not a hard question from a foreign policy point of view. You
have got to remove them, whatever that means, capture, kill,
whatever. You are not going to convert Osama bin Laden to
democracy or to our way of life. In a sense, that is easier--
not easy to carry out, but easy to articulate--foreign policy.
The tough part is this Muslim world that you express your
concern about, and so do we in the report.
Here you have, stretching from North Africa to Indonesia,
millions and billions of people who, if the polls are correct,
do not think very highly of us, hold us in very low esteem,
admire Osama bin Laden, are sympathetic with much of what he
says, but may not endorse his violence. And if the war on
terrorism is to be won, we have to appeal to those people, and
that is one of the reasons we say this is a generational
challenge. You cannot do it in a year or two.
How do you do it? Well, we tried to put forward some
suggestions, but the important point here is, for me at least,
is if you are thinking about counterterrorism policy, what
should the United States do to deal with terrorism? You cannot
get all hung up in the boxes. You cannot get hung up on
terrorist financing. You cannot get hung up on the FBI. You
cannot get hung up on DHS. You have to see it as necessary to
put together a integrated, balanced effort dealing with
military action, covert action, law enforcement, treasury
actions to stop the flow of money, public diplomacy in many,
many areas. The tough part of counterterrorism policy is to get
all of that integrated and balanced.
One of the aspects of it is to show to them, the Muslim
world, if you want to put it in simple terms, that we are on
their side in terms of wanting a better life. We want for them
a better life and better opportunities. You know the figures
with regard to young men in these countries, 40, 50 percent
unemployment. Where do they go? What do they do? Why do they
turn to violence? That is not a impossible question to answer.
Their life has nothing in it to give them any hope. We cannot
solve all those problems. We do not have the resources to solve
all those problems. We can encourage the governments to move in
the right direction, become more open, more transparent, to
become more concerned about their people. We think there are a
lot of things you can do to that are perhaps symbolic, but
nonetheless important. Every politician knows how important it
is to let people know you are on their side. You have
constituents that come up to you all the time that ask you to
do something that you cannot possibly do. But the important
thing, in a political sense, is to let those people know you
are on their side, you want to help them with their problem.
Maybe I am too simplistic about this, but I think that is what
you have to do in American foreign policy, you have to let
these people know we are on their side and we want to help.
Okay. You have decided to put $100 million, I think it is--
I may not be quite right on that figure--into the school system
in Pakistan. If you know anything about the school system in
Pakistan, that is a drop in the bucket, but I think it is very,
very important to let those people know we want a decent
education for a lot of Pakistanis, and we want to provide an
agenda of hope, and we want to be on the side of hope for these
people.
What does Osama bin Laden offer these people? Death, a very
tough life. What do we offer? We have an awful lot to offer,
and we have just got to be able to put this all together in
American foreign policy in terms of a robust public diplomacy,
in terms of increased scholarships.
I used to go to Eastern Europe all the time when we had
those cultural centers during the Cold War, and people were
constantly attacking them as being a waste of money and a waste
of time, but you would visit those offices in Prague or Warsaw
at 10 o'clock at night, and we had to throw then out of there.
They were so anxious to learn something about the United States
of America, and I thought those were enormously important, and
I think you have to do a lot more of the same with regard to
this Muslim world.
We are not going to solve this problem in a week or two or
a year or two or in my lifetime, but we have to get started on
it.
Chairman Hatch. Thank you, Lee.
Senator Chambliss.
Senator Chambliss. Thank you, Mr. Chairman.
A very profound statement, Lee. I am one of the folks who
was somewhat skeptical about the formation of this Commission
when it started, in some part because of exactly what Senator
Kennedy alluded to there, that thick book he held up. I know he
is exactly right about it, but I just want to tell you guys,
and I have known both of you for a decade and have had the
opportunity to work with you and have great respect for both of
you, and I think your Commission did a really find job, not
just in what you recommended, but you did an awful lot of
research and you put it in black and white where Americans can
understand it. I hope this report continues to be on the best
seller list for months to come.
I appreciate you setting the record straight relative to
what the President and Secretary Rumsfeld, as well as others in
the administration, have said. I am one who, because of your
report in part, has come around to a way of thinking that we do
need a National Intelligence Director, and we are going to have
one. It may take us somewhat longer than what some folks would
like for it to happen, but it is going to happen. But the
President has been very specific in saying that he has not shut
the door on what kind of power and authority this individual
ought to have and that is open for discussion. That is the kind
of leadership that we expect out of our President and we are
getting out of our President on this specific issue.
There has been a compilation, Mr. Chairman, of a side-by-
side of the 41 recommendations that the 9/11 Commission made,
and either the action on the part of the administration, a lot
of which was alluded to by Secretary Hutchinson, and the ones
that have not been acted on, the particular consideration that
is being given to those recommendations. Thirty-nine of the 41
have either been directly acted on or are under consideration.
The only two that have not been, interestingly enough, are the
two relative to the reorganization of Congress.
[Laughter.]
Senator Chambliss. I introduced a copy of that yesterday in
the Intelligence Committee hearing, and I would like unanimous
consent to introduce that today as part of this hearing.
Chairman Hatch. Without objection.
Senator Chambliss. Ms. Baginski, I want to tell you an
anecdote particularly with the strong support coming from the
9/11 Commission about the PATRIOT Act. I have been a strong
supporter of it. I think it was the right thing for us to do,
and I think it has been very effective. I met with most of my
JTTF in Atlanta recently, and an interesting comment came out
of that group when we were talking about the PATRIOT Act. What
one FBI agent said was, he said: The enactment of the PATRIOT
Act has been crucial to us winning the war on terrorism, and we
need for every bit of it to be extended. And he said: I will
tell you that it has not been the great asset that a lot of
people thought it would be relative to the arrest and
prosecution of terrorists, but what it has allowed us more
importantly to do, and on many more cases than have been
prosecuted, is to eliminate suspects from suspected acts of
terrorism.
I think that is critically important when we are talking
about invasion of freedom and liberty, and, Lee, you are right,
we have a delicate balance there that the PATRIOT Act has to
meet. But I was particularly intrigued when that agent told me
that we have relieved a lot of people's minds because we had
the PATRIOT Act. We would not have been able to do the that had
we not had the PATRIOT Act.
One quick question, Lee and Slade. You are, rightly I
think, very critical of the FBI from an information sharing
standpoint. You identified them as one of the biggest abusers
of the frankly lack of information sharing, and I have done the
same thing, as you know. While there have been great strides
made there, the one glaring area to me you left out was DOD's
information sharing. What did you conclude relative to the acts
of DOD regarding information sharing, and is there any kind of
model there that we can look at for the future?
Mr. Hamilton. There are a number of very important
intelligence collection agencies in DOD. You have got the NSA,
you have got the NGA, you have got the NRO, and you have got
the Defense Intelligence Agency. There are probably others as
well. And one of the interesting things about the intelligence
community is that, as you know, that is the way it is
organized. It is organized around collection, how you collect.
And when you stop to think about it, it ought to be, at least
in my mind, not organized on the way you collect, but it ought
to be organized on your mission, what you are trying to
accomplish, and that is why we get into the national
intelligence centers and the National Counterterrorism Center.
We believe all of those agencies I have mentioned and
others do a very good job of collecting information. We collect
vast amounts of information in this Government. Every minute or
two we are collecting millions of bytes of data, and the big
problem is not so much collection as it is analysis and
assessment. But we think the stovepipe phenomenon has seriously
hurt our overall intelligence agency, and I think there have
been improvements made since 9/11, but nonetheless, still there
is this kind of focus on, we collected this information, we
will keep it, and the sharing mechanisms are informal, they are
not institutionalized. They are better I think than they were,
but I think we have a long way to go to get the kind of free
flow of information that is vital to counterterrorism efforts.
Mr. Gorton. Lee is entirely right in that connection, and
Senator Kennedy referred to the fact that much of the
information that we gather through the signals things does not
get translated or does not get translated in real time, and the
sharing arrangements were highly informal. Now, one major
improvement since 9/11 was the creation of the Terrorist Threat
Integration Center, which is designed to see to it that
information from here and information from there and from the
CIA and the Defense Department gets to someone who can
distribute it to the people in the agencies who know about it.
In one very real sense, our recommendation for a National
Counterterrorism Center builds on that. Our impression is that
it has done a pretty good job, but it is headed by a relatively
mid-level executive on loan from the CIA, and it has people on
loan from the FBI and on loan from the Defense Department and
other agencies, who know their long-term career is somewhere
else. They obviously cannot tell those agencies what to do.
If you have a National Counterterrorism Center headed by a
presidential appointee confirmed by the Senate with the power
to demand cooperation, and even more significantly, the power
to say: here is something we are missing in the field of
terrorism, I think it falls within the FBI's jurisdiction, so
you go out and look for it here, CIA go out and look for it
somewhere else, we will make that a much more powerful and
effective entity.
Are we doing a better job now than we were before 9/11?
There is no question about it. Can we do a better job,
including the integration of these Defense Department agencies
which are really the 800-pound gorilla? At least from the point
of view of the technology they have and the money they have,
clearly we can.
Senator Chambliss. Thank you, and thanks to all of you for
the great job you are doing.
Chairman Hatch. Thank you, Senator.
Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman for holding this
hearing.
I too want to thank Commissioners Hamilton and Gorton, and
all the Commissioners and members of the staff of the 9/11
Commission for your incredibly important and effective service.
I cannot emphasize enough how vital your work is to the
American people, and how significant and refreshing it is, that
your reports and recommendations are bipartisan and unanimous.
Chairman Hamilton, let me particularly thank you for your
comments today, your candor with regard to certain, as you
described them, astonishing powers of the Government, and also
your enormous eloquence in your recent comments to Senator Kohl
about some of the real foreign policy challenges that are
before us.
I supported the creation of the 9/11 Commission because I
believed it was crucial to review what went wrong leading up to
the fateful day in September, 3 years ago, what we can learn
from those mistakes and what we should do to improve our
Nation's defenses against a future attack. But I will confess
that this product greatly exceeded my expectations and even my
hopes. You have provided us with a template for how to make our
country safer and stronger. It is not time to implement these
recommendations. We need to work out the details carefully but
quickly, and in a bipartisan manner, taking our cue from the
work of the Commission. Our Nation must effectively combat the
terrorist threat we face. That must be the very highest
priority of the Congress. We need real reforms now,
particularly with regard to our intelligence community and our
intelligence oversight, and I obviously look forward to working
with my colleagues on both sides of the aisle as we do that.
Let me ask questions of Congressman Hamilton and Senator
Gorton. The Commission has created an extraordinary sense of
urgency about its recommendations. It seems very possible, if
not likely, that we will consider the legislation on the floor
with regard to this prior to the election. You have created a
very fast-moving train for these recommendations, and I do
salute you for that. Both of you served with distinction in the
Congress, so you know very well that fast-moving legislative
trains are vehicles that are tempting targets for pet projects.
So I want to get your reaction to some possibilities that,
given the highly-charged political atmosphere we are all
working in, do not seem all that farfetched to me.
First let me ask you about potential efforts to attach or
sneak in unrelated legislation to the bill that implements your
recommendations. Will you as a bipartisan group oppose and
speak out against efforts to use this legislation as a vehicle
to force the enactment of other unrelated bills in the closing
hours of this Congress? Congressman Hamilton.
Mr. Hamilton. Senator, I do not think we view our
responsibility to tell you how to get the job done. We think
the recommendations we have made are important and we think
they are urgent, and we urge quick action on them, but also
careful action, as you said in your statement. The
Commissioners are committed to trying to get the
recommendations enacted, and we will speak out in favor of
those recommendations. I understand, and Slade understands, the
intricacies of the legislative process, but our eye will be on
the target, and our target is to get these things enacted.
Mr. Gorton. Senator, we are not only gratified, but I may
say, surprised at the quick and decisive action so far during
the month of August, that 18 years in the Senate I do not
remember an August when I was back here at hearings like this.
It is an imposition on your time, and I think a tribute to your
concern for what we have recommended that you have been doing
this. And reading assiduously all our clips, I have not seen
any indication of people trying to put pet projects on any of
this legislation. We hope that you will pass legislation. Your
procedures for doing so, of course, are for you to decide for
yourself, and so I just simply associate myself with Lee. We
hope you will act judiciously and carefully and thoughtfully,
but because of the nature of this threat, we hope you will be
able to act quickly.
Senator Feingold. Thank you. I would just comment that the
American people I think are proud of what you have done here,
and one of the things that could most quickly undercut what you
have done is if somehow this legislation became a vehicle for
other agendas. But I do respect your caution in your answers.
In the report you repeatedly note the importance of
protecting civil liberties, and I am pleased that you highlight
that point, as I indicate, in your testimony as well. You say,
Congressman Hamilton, that we must find ways of reconciling
security with liberty, and of course, I strongly agree with
you. Noting that some provisions of the PATRIOT Act will sunset
at the end of 2005, you called for, and I am quoting here from
page 394 of the report, ``A full and informed debate on the
PATRIOT Act.'' Can we count on you to speak out against
attempts to short-circuit the full and informed debate you have
called for by adding PATRIOT Act reauthorization provisions or
new law enforcement powers to the legislation that we will
potentially consider in the next few weeks?
Mr. Hamilton. My recollection is that we commented with
approval on the sunset provision in the PATRIOT Act, and
because of the sensitivity of increasing Government powers, and
the protection on the other hand of human freedom, human
liberties, we think it is a very, very important matter for the
Congress to try to balance these as best they can. Your
specific question, would we comment about any effort to short-
circuit consideration of the PATRIOT Act, I think we recognize
the issues in the PATRIOT Act are very serious issues, and we
would favor full and open discussion of them.
Senator Feingold. Senator Gorton.
Mr. Gorton. I cannot add to those comments. I agree with my
Vice Chairman.
Senator Feingold. In the few seconds I have left, let me
simply say that it is almost inherently the case that if we
were to completely reauthorize every word of the PATRIOT Act
during this accelerated period between now and the election,
that it is impossible for this Commission's recommendation with
regard to this to occur, and that the proper time for that
consideration is at the time of the expiration of the sunset,
but I certainly am not trying to put words in your mouth, just
I believe that is a reasonable conclusion from what the two of
you have said.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you, Senator.
Senator Schumer.
Senator Schumer. Thank you, Mr. Chairman. I thank you for
having this hearing in a timely way.
And I thank all of our panelists for the good work they do.
I have worked with Asa Hutchinson and Maureen Baginski in their
respective roles, and they are both responsive and involved and
really caring about tightening up security in our Nation. I
cannot say enough good about the 9/11 Commission. I think it
was just an incredible, an incredible, incredible tour de force
in terms of the recommendations, in terms of the
bipartisanship, in terms of the refusal to point fingers of
blame, which makes the media all happy but does not really
solve the problems here, but instead looks for the future. So I
compliment you all on that.
I am worried. I want to address this to our two
Commissioners. I know it has been touched on, but I am worried
that a lot of your recommendations are either not going to
happen or more likely, what usually happens in Washington, we
look like we are doing something, but we do not do them. The
Director of the National Intelligence is a classic. The
President came out early for it, but did not give it the teeth,
did not say he was for the budgetary and the hiring authority,
which you had mentioned, Slade, was supposed to be in the
original CIA and somehow got lost over the years. And then 2
days ago we heard Secretary Rumsfeld, and he is representing
the Defense Department, and obviously, the interests of the
Defense Department, come out and basically--I mean we all have
been around Washington long enough to know he was throwing cold
water on your proposals even if he did not say it directly.
So I have a few questions on that. First, are you going to
take strong and direct action to try and make sure we enact a
full DNI, Director of National Intelligence, with budgetary and
hiring authority before Congress adjourns this year, including
however you see fit to do it, making sure that the President
supports those proposals or is told that he ought to? Slade?
Mr. Gorton. That is exactly what we have done. We have made
our recommendations. We have said that our recommendations are
integral, that they fit into one another, and that we cannot
say that doing them partway or piecemeal is going to provide
the necessary degree of public security for the people of the
United States that it is our conclusion that they deserve and
can have.
I think that all of us are probably more optimistic maybe
than your question on this. We do not see, at least so far in
any of the comments, some kind of veto coming from the
administration, and we see that the legislation is going to be
written here. Just 2 days ago, as I understand it, Senator
Roberts and Senator Rockefeller submitted drafts to the
Governmental Affairs Committee that are essentially what we
have recommended. That is the legislation that we recommend be
passed.
Senator Schumer. Right. Do you worry that the House may
not, you may not get a vote on it in the House? The Senate you
will get a vote on it one way or another.
Mr. Gorton. I think we will. I have already attended one
House hearing in Los Angeles on the subject, and have another
tomorrow. I think members of the House are equally interested
in doing something.
Senator Schumer. Let me ask you this, because when Porter
Goss was nominated, it was early on I think, I was the first
Democrat to say good things about him. I think he is a good
man. I served with him in the House, and I think he has
integrity. My worry is that will be a substitute for doing the
recommendations that you suggested on the Director of National
Intelligence, that we will do Goss, and then we will say, Let
us come back. Let us let him have an assessment. He has not
been that friendly to your recommendations. What would you
think of trying to tie the two together? I think this is much
more of an issue of structure than of one individual person,
but of us--and we could probably do this here in the Senate--
saying, yes, let us approve Porter Goss, and let us approve the
9/11 Commission's recommendations on DNI at the same time?
Mr. Gorton. That is beyond our pay grade, Senator.
Senator Schumer. Oh, no, it is not. I would simply say to
you that I am more worried maybe than you are. I was delighted
to hear Pat Roberts come out and say what he did, but I think
we have a long way to go, and frankly, that does not absolve
this body. I think we have the same problems here, maybe even
more so in terms of creating a Committee that has oversight
over all intelligence with budgetary and other kinds of
authority, which we do not have now, and no one is happy with
the oversight that the Intelligence Committee is able to do
because of their lack of power.
I would just hope that you will be real strong on this,
saying it and then letting it--because if we do not do it by
November, I am very worried we may never do it, and the fine
work that you have done may be put on the bookshelf.
Do you have any comments on this, Lee?
Mr. Hamilton. Well, we feel very positive about our
recommendations. We think if they are adopted the country will
be safer. We think it is terribly important that the National
Intelligence Director have full authority of budget,
information systems, personnel, and we go so far as to say that
if he does not have those powers, do not bother with it.
Senator Schumer. Right.
Mr. Hamilton. No sense creating it because then you really
are creating another layer of bureaucracy. We have been talking
for 30 or 40 years around here about strengthening the power of
the CIA Director, and we have done, you, and I in the past,
have done some things that I think have been helpful, but he
still is in a very anomalous position.
Senator Schumer. Will both of you and the Committee members
have a running sort of--you will be commenting as we move
through the process about this and that and the other, not just
saying, these are our recommendations, we hope you do them, and
then exiting the stage?
Mr. Gorton. No, we do not have any intention of exiting.
Senator Schumer. Great. That is good news.
Chairman Hatch. We have not seen you exit at all.
[Laughter.]
Chairman Hatch. We think you are hanging in there.
Senator Schumer. Do I have time for--
Chairman Hatch. You can have one more question.
Senator Schumer. Great, okay.
My next question relates to the issue of nuclear security.
One of my great worries--and I think many of us share this, but
particularly I have been focused on this--is that somebody slip
a nuclear weapon into our country, and God forbid, explode it.
I do not mean a dirty bomb. I mean a real nuclear weapon. And
there are a lot of different ways to focus on this. One of
course is to try and buy them all up overseas. That is an
important job. We should do everything we can. It is next to an
impossible job. It seems to me the better way to do this is to
be at the choke point, that is, the place where a nuclear
weapon would be smuggled into this country.
And I have been trying to push this Congress for years, and
the administration now for 2 years, coming from the city from
which I come, to do more on this. We had originally proposed--
technologically it is feasible--to develop detectors that you
could put on every crane that loaded a container bound for the
United States, on every toll booth of a truck that entered our
borders, and those are really the only two ways you can bring a
nuclear weapon here into this country, that could detect an
amount of radiation in a real bomb. I have been pushing to have
money for this. We had proposed 150 million, which is what the
scientists told us they needed the first year. We got 35
million through the Appropriations Committee, and even that, as
best I can tell, has not been spent.
So here my question goes to all of the panelists, or
particularly our two Commission members and Asa Hutchinson from
Homeland Security. Should we not be doing more on this? Are we
doing enough on this? Why, and to Asa in particular, why are we
not spending at least the paltry $35 million that has been
allocated to develop these devices? Is it good enough to
inspect only 4 percent of the containers, for instance, that
come through our ports, for nuclear devices?
Mr. Hutchinson. Thank you, Senator Schumer. First of all,
we agree completely with the underlying point that we have to
do all we can to detect nuclear devices, weapons, material that
might be coming into the United States. We have a goal of 100
percent radiological screening of cargo and conveyances coming
into the country. We have deployed 151 imaging systems,
detection systems. We have 10,000 personal radiation monitors
that have been deployed, 284 radiation portable monitors. In
reference to a dollar amount, the President's budget for 2005
asks for $50 million, which is an increase from what was
previously designated.
And so we share the commitment, and we believe it is
important, and we are working very hard to make sure that those
items are procured and deployed.
Senator Schumer. Asa, I am glad it is 15 million more.
Every expert will tell you that over a 3-year period--because I
have talked to all of them, and none of them are terribly
political, these are scientists. The idea is to develop
something that moves from a Geiger counter to sort of a
foolproof detection device that can detect things many more
feet away. A Geiger counter works great at three feet. It does
not work at 80 feet. And 50 million is not close to enough. We
have faced so many dangers, and it is not an easy job. Look at
the range of the questions, every one of them legitimate that
has been asked here. But this is so serious in terms of its
devastation, and it is hardly the most expensive even to
implement and everything else. Why only 50 million? Why are we
not doing more? And again, this is not just an al Qaeda
problem. This is our problem for the next generation.
Mr. Hutchinson. That is correct. For example, whenever we
looked at New York and concerns in that arena, we make sure
that we have our assets flexible enough to deploy where they
are needed to be.
Procurement is an issue whenever it is allocated. So the
schedule of manufacturing and the procurement of that, but we
are moving very quickly on that. And we are enhancing our
capacity.
Senator Schumer. Why has the $35 million not been spent
that was allocated not in this year's budget, but in last
year's?
Mr. Hutchinson. I would have to get back with you on that.
Customs and Border Protection is spending that money as quickly
as they can in terms of procuring these assets. I mentioned the
151 that has been deployed, 284 radiation monitors. So there is
a schedule that is being met day in and day out for the
deployment of these radiation monitors.
Senator Schumer. But we still only do 4 percent of the
containers and a certain percentage, I do not recall, of the
toll booths. I have seen them work. I have seen the ones that
are there. They are just not close to enough.
Chairman Hatch. Senator, your time is up.
Senator Schumer. Could I just ask our Commissioners to
comment?
Mr. Hamilton. Well, Senator Schumer, I want you to take a
look at our proposal on the National Intelligence Centers. All
of the attention has been on the National Counterterrorism
Center, but we recommend, it is the other side of the chart
here, all of the attention has been over here, but the other
side of it is that the administration would identify the major
threats to the national security of the United States--
counterterrorism would be a part of it--but also the weapons of
mass destruction.
And you would put in one place then the authority to bring
together all of the intelligence that we have from all of these
various intelligence agencies, but more than intelligence, you
would do operational planning there, and that follows the
military example, where you pool J2 and J3 together. And so you
would put in one place in Government the responsibility to plan
operations to deal with weapons of mass destruction. You would
have all of the intelligence the Government has. We support the
expansion of the Proliferation Initiative of the President. We
support more funding for the Cooperative Threat Reduction
Program. This is the ultimate nightmare--
Senator Schumer. Right.
Mr. Hamilton. --that the terrorists gets hands on a weapons
of mass destruction. We know that they have tried for 2 years
to do so, and it is a terribly important program. But take a
look at the potential of the National Intelligence Centers as
the way to deal with this problem.
Senator Schumer. Thank you, Mr. Chairman.
Chairman Hatch. I have a lot of questions that I will
submit in writing, and I hope others will as well.
Senator Leahy would like to ask one or two more questions.
Senator Leahy. Just because I thought that the line of
questions that Senator DeWine was asking was a good one. I just
want to make sure I fully understand this.
I will direct to you, Ms. Baginski. Am I pronouncing that
right--``Baginski'' or ``Bajinski''?
Ms. Baginski. Baginski is correct, sir. Thank you for
asking.
Senator Leahy. Hard ``g.'' You said earlier the FBI can do
multiple term searches in the Integrated Data Warehouse, the
IDW. Now, I am not quite sure what databases are in there. Are
case files included in that?
Ms. Baginski. Yes, sir.
Senator Leahy. So let us say you had a scenario like the
well-known Phoenix memo, where the young FBI agent who blew the
whistle on the potential hijackers taking flight lessons out in
Phoenix, presented a memo that was basically shunted aside when
it reached headquarters. If that was generated today by an
agent in the field, would it be included in the IDW?
Ms. Baginski. Yes, sir.
Senator Leahy. Thank you.
Ms. Baginski. I can give you a specific example from the
demonstration they gave me on my first day here, which was to
show this set of data that included a lot of different things,
including case files, but not all case files, but terrorism
information. And the activity was I could ask it a question. So
I asked it give me information on how terrorists could do us
harm. And with no fix in or anything else, the first thing that
came up was the Phoenix memorandum.
Senator Leahy. Maybe this fall Senator DeWine and I might
have time to just go down and take a look at it.
Ms. Baginski. We would love to have you come and look at
what the power of putting data like that together is doing for
our analysis.
Senator Leahy. I know how shocked I was right after 9/11,
when I went down to the Center. I have said this publicly and
in fact I discussed it with President Bush at the time. He was
equally shocked at the amount of paper, and rewriting, and
rewriting--
Ms. Baginski. Yes, sir. And we have more work to do, and
just not to--
Senator Leahy. I want to help. I mean, I am not here to
criticize.
Ms. Baginski. But I also want to tell you that I had the
responsibility for information sharing. And through a policy
board we are looking specifically at IDW and trying to add to
the data sets that are in there. That is the point I want to
make to you.
Senator Leahy. Thank you. I will be down.
Ms. Baginski. Great, sir. Thank you.
Senator Leahy. Congressman Hamilton and Senator Gorton, you
have recommended the National Intelligence Director, and you
recommend that the NID be located in the Executive Office of
the President. The question comes to my mind, would that give
the NID sufficient independence?
And, secondly, also on the question of independence, do you
want this NID--to serve at the pleasure of the President or
have a set term similar to what we do with the FBI Director?
And, thirdly, you recommend giving the NID hiring and
firing authority over the FBI's executive assistant director
for intelligence, as well as budgetary control of the FBI's
Intelligence Division. Does that assistant director then remain
accountable to the FBI Director and the Attorney General or
does she or whoever it might be became accountable to the NID?
These are sort of questions that, as I walked across the
fields of my farm in Vermont, I was thinking about maybe
because I was not wearing a tie.
[Laughter.]
Mr. Hamilton. Well, they are very important questions,
Senator. With regard to the location in the White House, the
Executive Office, a little earlier I was talking about the
necessity of integrating a lot of aspects of counterterrorism
policy. Where do you do that? Well, I think it has to be done
in or near the White House. It has to be done with the
authority of the President.
Now, we do not want to get hung up on boxes here. Boxes are
not the most important thing. Authorities are the most
important thing. If you do not put it in the White House, where
do you put it? I do not think it would be correct to put it in
DOD or the CIA because those departments and agencies deal with
very specific kinds of responsibilities, and what you need is a
very cross-cutting responsibility here. You are going to be
giving direction to the Secretary of State, and the Secretary
of the Treasury, and a lot of other people.
So we recommend putting it in the White House. That is for
you all to sort through, but if you do not put it there, where
do you put it?
Senator Schumer. With a term or at the pleasure of the
President?
Mr. Hamilton. No, he serves at the pleasure of the
President. This position is--he is the principal adviser to the
President, and we think the importance of a good relationship
between the President and the National Intelligence Director is
crucial. So we say coterminous with the President.
Now, this question of independence is a genuine one. And we
all know that politicalization of intelligence is a very, very
difficult problem. Our analysis of that was that we had put
into this system a very good means of competitive analysis, and
we do not think that the locus or the geographical location of
where the principal adviser to the President sits, whether it
is in the Executive Office Building or somewhere else, maybe
even in Vermont--is key.
Senator Leahy. That is okay. We have got enough people.
[Laughter.]
Mr. Hamilton. The danger of politicalization rises because
of the functions and the relationships not the location of the
person. And I do not see how anyone can look at the present
system today--you just came out in the Senate here with this
devastating report on ``groupthink'' in intelligence community.
What that means is a lack of competitive analysis. So I do not
think the status quo is encouraging with respect to competitive
analysis.
What we do is we keep all of the independent analysis--
State will have their analysis; Treasury will have their
analysis; Energy will have theirs; Army, Navy, Marine Corps,
they will all have theirs--there is no change there--they have
their independent analysis. And then we emphasize the
importance of open-source analysis as well, which we think adds
to the competitive analysis. Everybody wants competitive
analysis. Nobody wants politicalization of intelligence. All of
us recognize how difficult it is to deal with both of these
problems.
We believe, if you look at our system very carefully, the
creation of the National Intelligence Director has a number of
benefits which will strengthen competitive analysis and
decrease the possibility of politicalization of intelligence.
You cannot ever remove the prospect of politicalization of
intelligence, but you can decrease it.
Senator Leahy. You did not answer what happens with Ms.
Baginski. Is she accountable to the FBI and the AG--
Mr. Gorton. Basically, she is going to be accountable--
Senator Leahy. --or is she accountable to the NID?
Mr. Gorton. Basically, she is going to be accountable to
both. As we said, we have affirmative, we have been very
positive about this relationship in the FBI between
intelligence and law enforcement and the fact that people who
work in the FBI know something about both.
I think we ought to emphasize just one other thing, in
addition to what Lee has said to you. We do not say that this
National Intelligence Director should be a Cabinet officer
because we do think intelligence, the collection and
communication of intelligence and operational planning should
be separated from policy. Cabinet members are policymakers.
Policies, with respect to what is done in the White House,
should go through the National Security Council and should be
those of the President. But, on the other hand, the President
has got to trust this person who is the head of all
intelligence, and that is the reason we make those
recommendations. But that person should not be a policy setter.
Chairman Hatch. Senator Schumer said he will take one
minute, and then we are going to shut this down.
Senator Schumer. Mr. Chairman, I have a whole lot of
questions.
Chairman Hatch. And you can submit them in writing.
Senator Schumer. I am mindful of people's schedules. I will
do them in writing.
I am going to ask Mr. Hutchinson in writing, just from the
Homeland Security, why this $35 million, paltry as it is, has
not been spent yet or just to give me some details, in writing.
He does not have to do it now.
My final question relates, it is to both the Commission and
Ms. Baginski. I am still concerned about all of those Saudi
flights that came about right after September 11th. Long before
the Commission came out, I sat down with Dick Clark, you know,
he gave me his little synopsis as to what happened. I know you
talked to him. And this is one place, one of the very few
places I am not sure I completely agree with the Commission's
recommendations.
My question is this, not did every person who was on that
flight get a check--they did. Somebody went and cleared them. I
am not sure it was under the best of circumstances--I want to
know who authorized the flight. How was it, especially when all
planes were grounded, that this plane was able to take off,
filled with Saudi nationals, including some people in the bin
Laden family? It could not have been Dick Clark. I do not think
he would have that authority. And so did you ask that question
on the Commission? Did you get any answers? Is it not a
relevant question to be answered?
And then Ms. Baginski, if she knows anything.
Mr. Hamilton. Well, we looked into it as thoroughly as we
could, Senator Schumer. And I suspect this is one of these
questions that will be looked at a great deal more in the
future. We found no evidence that any flight of Saudi nationals
departed before national airspace was opened or reopened. We
found no evidence of the involvement of U.S. officials at the
political level in any decisionmaking on these flights.
What the testimony was, was that Dick Clark--this was a few
days after--was just--
Senator Schumer. It was on the 13th.
Mr. Hamilton. Yes.--just besieged with hundreds and
hundreds of questions. And the FBI called up Dick Clark, and
there had been a contact from the Saudi Embassy to the FBI. The
FBI called up Dick Clark and said, ``Is it okay to let these
flights go out?''
And Dick Clark said, ``Yes, if checks have been made'' or
whatever. In other words, it was not something that took a huge
amount of his time.
And from what we know, we believe the FBI conducted a
satisfactory screening of the Saudi nationals before their
departure, including extensive interviews with regard to the
bin Ladens, and there were a number of them. Now, our own
independent check of the databases found no links between
terrorism and the Saudis that departed. So that is where we
came out on the investigation.
Mr. Gorton. And I emphasize that is after the fact.
Mr. Hamilton. That is after the fact.
Mr. Gorton. That is what we did later during the course of
our investigation.
Mr. Hamilton. That is after the fact. That is where we are
in the investigation.
Senator Schumer. But you do not know who authorized this,
the early one, the 13th was one of the very first flights
allowed. It was not that everybody was flying then again. You
had to get specific authorization. And then there were others
later. Like there was one the 19th, after everybody was flying
again.
Mr. Hamilton. Is that the one from Florida that came up you
are talking about?
Senator Schumer. Yes.
Mr. Gorton. Even that early Tampa flight to Lexington was
after the Tampa airport was opened to general aviation.
Senator Schumer. Did they not have to get approval? I
thought, in those early days, there had to--in other words, all
planes were flying then?
Mr. Hamilton. The commercial airplanes, it took a little
while longer than some of the general aviation to get cranked
up to fly.
Senator Schumer. And any general aviation was allowed on
the 13th?
Senator Gorton. They did not take off until the Tampa
airport was opened.
Chairman Hatch. That has got to be it.
I want to thank each of you for being here. I thought this
was one of the best hearings that I have observed in the
Congress, and it is because of the four of you and those who
back you up. I think you have been terrific. I think you have
helped us to understand a lot of things we need to understand.
We have only scratched the surface in some ways, so we will
keep the record open for a week for written questions, and
hopefully you can help us even further there, so that we can do
our part of this and of course participate in all of the other
parts of it as well, which this Committee does very well.
So we want to thank each one of you. I am sorry it has
taken us so long, but it has been a very, very worthwhile
hearing, and we are grateful to you.
With that, we will recess until further notice.
[Whereupon, the 12:18 p.m., the Committee was concluded.]
[Questions and answers and submissions for the record
follow:]
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