[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]




 
   9/11 COMMISSION'S RECOMMENDATIONS: BALANCING CIVIL LIBERTIES AND 
                                SECURITY

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

                                HEARING

                               before the

                   SUBCOMMITTEE ON NATIONAL SECURITY,
                  EMERGING THREATS, AND INTERNATIONAL
                               RELATIONS

                                 of the

                              COMMITTEE ON
                           GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                              JUNE 6, 2006

                               __________

                           Serial No. 109-203

                               __________

       Printed for the use of the Committee on Government Reform


  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html
                      http://www.house.gov/reform


                                 ______

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                     COMMITTEE ON GOVERNMENT REFORM

                     TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut       HENRY A. WAXMAN, California
DAN BURTON, Indiana                  TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida         MAJOR R. OWENS, New York
JOHN M. McHUGH, New York             EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida                PAUL E. KANJORSKI, Pennsylvania
GIL GUTKNECHT, Minnesota             CAROLYN B. MALONEY, New York
MARK E. SOUDER, Indiana              ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio           DENNIS J. KUCINICH, Ohio
TODD RUSSELL PLATTS, Pennsylvania    DANNY K. DAVIS, Illinois
CHRIS CANNON, Utah                   WM. LACY CLAY, Missouri
JOHN J. DUNCAN, Jr., Tennessee       DIANE E. WATSON, California
CANDICE S. MILLER, Michigan          STEPHEN F. LYNCH, Massachusetts
MICHAEL R. TURNER, Ohio              CHRIS VAN HOLLEN, Maryland
DARRELL E. ISSA, California          LINDA T. SANCHEZ, California
JON C. PORTER, Nevada                C.A. DUTCH RUPPERSBERGER, Maryland
KENNY MARCHANT, Texas                BRIAN HIGGINS, New York
LYNN A. WESTMORELAND, Georgia        ELEANOR HOLMES NORTON, District of 
PATRICK T. McHENRY, North Carolina       Columbia
CHARLES W. DENT, Pennsylvania                    ------
VIRGINIA FOXX, North Carolina        BERNARD SANDERS, Vermont 
JEAN SCHMIDT, Ohio                       (Independent)
------ ------

                      David Marin, Staff Director
                Lawrence Halloran, Deputy Staff Director
                       Teresa Austin, Chief Clerk
          Phil Barnett, Minority Chief of Staff/Chief Counsel

Subcommittee on National Security, Emerging Threats, and International 
                               Relations

                CHRISTOPHER SHAYS, Connecticut, Chairman
KENNY MARCHANT, Texas                DENNIS J. KUCINICH, Ohio
DAN BURTON, Indiana                  TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida         BERNARD SANDERS, Vermont
JOHN M. McHUGH, New York             CAROLYN B. MALONEY, New York
STEVEN C. LaTOURETTE, Ohio           CHRIS VAN HOLLEN, Maryland
TODD RUSSELL PLATTS, Pennsylvania    LINDA T. SANCHEZ, California
JOHN J. DUNCAN, Jr., Tennessee       C.A. DUTCH RUPPERSBERGER, Maryland
MICHAEL R. TURNER, Ohio              STEPHEN F. LYNCH, Massachusetts
JON C. PORTER, Nevada                BRIAN HIGGINS, New York
CHARLES W. DENT, Pennsylvania

                               Ex Officio

TOM DAVIS, Virginia                  HENRY A. WAXMAN, California
        R. Nicholas Palarino, Ph.D., Staff Director and Counsel
              Elizabeth Daniel, Professional Staff Member
                        Robert A. Briggs, Clerk
             Andrew Su, Minority Professional Staff Member


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on June 6, 2006.....................................     1
Statement of:
    Dinkins, Carol E., chairman, Privacy and Civil Liberties 
      Oversight Board, the White House, accompanied by Alan 
      Charles Raul, vice chairman, Privacy and Civil Liberties 
      Oversight Board, the White House...........................    59
    Fetchet, Mary, New Canaan, CT, mother of Brad, an employee of 
      Keefe, Bruyette and Woods in Tower 2 of the World Trade 
      Center; Carol Ashley, Rockville Center, NY, mother of 
      Janice Ashley, an employee of Fred Alger Management in the 
      World Trade Center; Abraham Scott, Springfield, VA, husband 
      of Janice Marie Scott, an employee of the Pentagon; and Don 
      Goodrich, Bennington, VT, father of Peter Goodrich of 
      Boston, a passenger on United Flight 175 that crashed into 
      the World Trade Center.....................................    93
        Ashley, Carol............................................   111
        Fetchet, Mary............................................    93
        Goodrich, Don............................................   136
        Scott, Abraham...........................................   128
    Kean, Thomas H., chair, National Commission on Terrorist 
      Attacks Upon the United States, president, THK Consulting; 
      and Lee H. Hamilton, vice chair, National Commission on 
      Terrorist Attacks Upon the United States, president and 
      director, the Woodrow Wilson International Center for 
      Scholars...................................................    28
        Hamilton, Lee H..........................................    31
        Kean, Thomas H...........................................    28
Letters, statements, etc., submitted for the record by:
    Ashley, Carol, Rockville Center, NY, mother of Janice Ashley, 
      an employee of Fred Alger Management in the World Trade 
      Center, prepared statement of..............................   114
    Dinkins, Carol E., chairman, Privacy and Civil Liberties 
      Oversight Board, the White House, accompanied by Alan 
      Charles Raul, vice chairman, Privacy and Civil Liberties 
      Oversight Board, the White House, prepared statement of....    62
    Fetchet, Mary, New Canaan, CT, mother of Brad, an employee of 
      Keefe, Bruyette and Woods in Tower 2 of the World Trade 
      Center, prepared statement of..............................    97
    Goodrich, Don, Bennington, VT, father of Peter Goodrich of 
      Boston, a passenger on United Flight 175 that crashed into 
      the World Trade Center, prepared statement of..............   139
    Kean, Thomas H., Chair, National Commission on Terrorist 
      Attacks Upon the United States, president, THK Consulting; 
      and Lee H. Hamilton, vice chair, National Commission on 
      Terrorist Attacks Upon the United States, president and 
      director, the Woodrow Wilson International Center for 
      Scholars, prepared statement of............................    35
    Kucinich, Hon. Dennis J., a Representative in Congress from 
      the State of Ohio, prepared statement of...................     9
    Maloney, Hon. Carolyn B., a Representative in Congress from 
      the State of New York, prepared statement of...............    18
    Ruppersberger, Hon. C.A., a Representative in Congress from 
      the State of Maryland, prepared statement of...............   164
    Scott, Abraham, Springfield, VA, husband of Janice Marie 
      Scott, an employee of the Pentagon, prepared statement of..   132
    Shays, Hon. Christopher, a Representative in Congress from 
      the State of Connecticut:
        Prepared statement of....................................     3
        Prepared statement of Carie Lemack.......................    91
        Prepared statement of Frank Fetchet......................    85


   9/11 COMMISSION'S RECOMMENDATIONS: BALANCING CIVIL LIBERTIES AND 
                                SECURITY

                              ----------                              


                         TUESDAY, JUNE 6, 2006

                  House of Representatives,
       Subcommittee on National Security, Emerging 
              Threats, and International Relations,
                            Committee on Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2:03 p.m., in 
room 2154, Rayburn House Office Building, Hon. Christopher 
Shays (chairman of the subcommittee) presiding.
    Present: Representatives Shays, Ros-Lehtinen, Duncan, 
Kucinich, Maloney, and Van Hollen.
    Staff present: R. Nicholas Palarino, Ph.D., staff director; 
Robert A. Briggs, analyst, Elizabeth Daniel, professional staff 
member; Robert Kelley, chief counsel; Phil Hamilton, intern; 
Andrew Su, minority professional staff member; and Jean Gosa, 
minority assistant clerk.
    Mr. Shays. A quorum being present, the Subcommittee on 
National Security, Emerging Threats, and International 
Relations hearing entitled, ``9/11 Commission Recommendations: 
Balancing Civil Liberties and Security,'' is called to order.
    The Final Report of the National Commission on Terrorist 
Attacks Upon the United States gave us the first comprehensive 
and objective analysis of what went so tragically wrong that 
day almost 5 years ago. The Commission unanimously called for a 
reevaluation of the fundamentals of defending the homeland. The 
``9/11 Commission,'' as it is commonly called, provided the 
Nation with 41 recommendations addressing issues such as 
homeland security and emergency response, intelligence and 
congressional reform, and foreign policy and nonproliferation.
    Seventeen months after their report was issued, Governor 
Kean and former Representative Hamilton asked, are we safe? 
Their answer: We are safer, but we are not safe enough.
    Today we are safer for two reasons. We are safer because 
the men and women of our Armed Forces and intelligence agencies 
and all those who serve in our foreign affairs posts are taking 
the fight to the terrorists. We are also safer because Congress 
has provided new and stronger authority to the executive branch 
to protect us at home. For example, the Director of National 
Intelligence was created to coordinate efforts of the 
Intelligence Community, and the National Counterterrorism 
Center was established to integrate and analyze all 
intelligence pertaining to terrorism and counterterrorism.
    However, when the Federal Government takes on a stronger 
and more proactive role to protect its citizens, the issue of 
civil liberties has the potential to become a casualty. The 
authors of the 9/11 Commission report foresaw such a 
possibility, recognized its dangers and sought to guard against 
it by including civil liberties protections through the 
establishment of a Civil Liberties Board.
    Congress followed the advice of the 9/11 Commission, 
seeking to balance the fine line between civil liberties and 
security. When the Intelligence Reform and Terrorism Prevention 
Act of 2004 strengthened the security of our Nation, it also 
established the White House Privacy and Civil Liberties 
Oversight Board. Unfortunately the authority of the Privacy and 
Civil Liberties Oversight Board will not be as effective as 
originally proposed because the legislation which created the 
Board does not provide it with subpoena power, and the Board 
and Board investigations can be, believe it or not, vetoed by 
the U.S. Attorney General.
    The Board needs strong powers to engage in effective 
oversight. The power to subpoena records and witnesses from 
outside the government is as crucial as is its independence.
    Last month Congresswoman Carolyn Maloney and I introduced 
H.R. 5017, ensuring implementation of the 9/11 Commission 
Report Act. The legislation would require executive branch 
agencies to certify progress made implementing and enacting 9/
11 Commission recommendations. Included in the legislation is 
language that will strengthen the White House Privacy and Civil 
Liberties Oversight Board, providing it with subpoena power and 
greater independence.
    Issues of the past year have highlighted the value of the 
9/11 Commission's foresight and also the importance of creating 
strong legislation that will balance security and civil 
liberties. We must protect our civil liberties because if we do 
not, the terrorists will clearly have won. At the same time, we 
must protect our citizens. We owe nothing less to the victims 
of September 11th, the families of the fallen, and the citizens 
of the United States of America.
    The subcommittee members thank all the witnesses for taking 
the time to appear before us today, including Governor Kean and 
Congressman Hamilton. And we want to especially thank, once 
again, the September 11th families who continue and continue 
and continue and continue to ask the difficult question, are we 
safe enough?
    [The prepared statement of Hon. Christopher Shays follows:]

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    Mr. Shays. At this time I would with great respect 
recognize Mr. Kucinich, the ranking member of this 
subcommittee.
    Mr. Kucinich. I thank the Chair for calling this hearing, 
and thank the witnesses for being here and for their service to 
our country.
    I think it's important to begin a hearing like this by 
stating the obvious. When we make a reference to our troops 
serving to protect this country, and we have the 9/11 
Commission leaders in front of us, I think it's important to 
state for the record that Iraq had nothing to do with September 
11th. That was not necessarily the charge of the Commission to 
come to that conclusion. But I think that as we start to 
extrapolate on matters of security and matters of civil 
liberties, we need to go right back to first things first. Iraq 
had nothing to do with September 11th, and our presence in Iraq 
right now is, in and of itself, violating international law, 
and any security problems we have in this country that are tied 
to Iraq have to be fought squarely on the backs of the 
administration.
    So I want to thank the chairman for holding this hearing. I 
can think of no more important issue than ensuring 
constitutional rights and fundamental freedoms of all the 
citizens of our country.
    Mr. Chairman, Congress surely had protection of civil 
liberties in mind when it passed the 2004 Intelligence Reform 
Act, creating the Privacy and Civil Liberties Board and the 
position of Civil Liberties Protection Officer, yet it seems 
that this administration----
    Mr. Shays. I would like to point out to the gentleman that 
the mic was not on. Could all of you hear the first part of 
what he said?
    Mr. Kucinich. No. I'll repeat it. I would hate for anyone 
not to have heard what I said.
    Mr. Shays. I just want to apologize to him. We have a 
button here that was not on. Was it on when I spoke?
    Mr. Kucinich. Was it on when the chairman spoke?
    Mr. Shays. Anyway----
    Mr. Kucinich. See, Mr. Chairman, coming from Cleveland, 
when I was mayor, the council used to shut my mic off, so I 
just kept speaking. So I didn't know the mic wasn't on, but I 
would happily ask the Chair if he wanted me to make some 
remarks that could go on the record.
    Mr. Shays. No. We're on the record.
    Mr. Kucinich. OK. Once again, Iraq had nothing to do with 
September 11th. And if we're going to start talking about 
security and then from there talk about the protection of civil 
liberties in that context, I think it's important that we 
establish a ground of meaning. And since the 9/11 Report 
focused mostly on the domestic matters, and since we have the 
two distinguished gentlemen in front of us, I think it's 
important to remember that we're in Iraq based on lies. And 
it's quite possible that what issues come from that is going to 
continue to be a lie. The Bible says, ``this which is crooked 
cannot be made straight.'' We may be in such a condition with 
respect to Iraq and all the policies that flow from it.
    Nevertheless, Mr. Chairman, Congress surely had the 
protection of civil liberties in mind when it passed the 2004 
Intelligence Reform Act, creating the Privacy and Civil 
Liberties Board and the position of Civil Liberties Protection 
Officer. Yet it seems that this administration doesn't feel the 
same way. To the White House, the civil liberties of Americans 
just aren't a very high priority. They're viewed as an 
inconvenience. When the Bush administration increasingly snoops 
into the lives of Americans, from monitoring library records to 
eavesdropping on our phone calls to collecting data on our 
travel records, with virtual immunity, this administration 
shows it pays lip service to the protection of our privacy and 
civil liberties. Why else has there been delay after delay in 
establishing the Privacy and Civil Liberties Board? Why did 
they wait more than 15 months to appoint the five members of 
the Board? Why has the Board had to struggle with issues of 
budget, staff support, office space?
    According to the ACLU, the Board, ``only gives the illusion 
of oversight without doing anything real.'' I believe this 
administration does not want this Board to succeed, and in 
dragging its feet, it tells us that it will only follow the 
letter of the law, not the spirit.
    The Board has no authority to carry out its mission. It is 
still, according to the Los Angeles Times, a ``paper tiger.'' 
the Board has no subpoena power, and any requests by the Board 
for Federal documents can be vetoed by the Attorney General of 
the United States. The Board does not have to hold public 
hearings or issue any public material aside from the annual 
report to Congress. Tellingly, Americans only learned of the 
Board's initial meetings this year through a press release 
issued after the meetings took place. Clearly the Board as it 
currently operates cannot be viewed as either independent or 
effective.
    Mr. Chairman, I hope this Board can get its act together 
and fulfill the responsibilities that the 9/11 Commission and 
Congress envisioned for it. We should not act hypocritically or 
compromise when it comes to our Nation's founding principles. 
These are the very freedoms and democratic values we espouse to 
other democratic nations to embrace, and which allegedly we're 
sending our young men and women in the military all over the 
world to protect.
    Mr. Chairman, I think it would be great if we could work 
together to send a request to the White House. I would like to 
see this subcommittee get all transcripts and meeting notes 
from the White House Privacy and Civil Liberties Board and 
would ask that we subpoena those if necessary. It's vital that 
Congress performs its oversight duties over such an important 
body and ensures that the Board acts in the best interest of 
every American, not just those of the White House.
    I want to thank Governor Kean, I want to thank Congressman 
Hamilton for their leadership during the September 11th 
investigation process and through their efforts in the 9/11 
Discourse Project to enact reform suggested by the Commission. 
I want to welcome the members of the September 11th families 
who are here today and applaud their efforts to ensure that 
civil liberties are protected.
    On one final note, when we speak of setting up a civil 
liberties board, you would think that ought to be actually the 
business of the U.S. Congress, and it should be the business of 
the courts. When you come forward and set up a structure after 
the fact that somehow's supposed to monitor to make sure that 
our constitutional rights are protected, and any administration 
frustrates the actions of that commission, go back and ask the 
first question: Why is this administration not taking the 
Constitution of the United States into account when it designs 
security for this country? Why has it determined that it would 
throw out the window so many constitutional protections? No 
board, the purpose of which we're here today to talk about, is 
going to be able to effectively answer that question.
    Mr. Shays. Thank the gentleman.
    [The prepared statement of Hon. Dennis J. Kucinich 
follows:]

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    Mr. Shays. Mr. Duncan.
    Mr. Duncan. Well, thank you, Mr. Chairman. Thank you once 
again for calling a hearing on a very important topic, as you 
have so many times before, and I want to welcome Governor Kean. 
And from what I read about him, he did just a great job in a 
very difficult position of being Governor of the State of New 
Jersey. And I want to welcome our friend Lee Hamilton, who was 
one of our most respected Members on both sides of the aisle in 
this body for, what was it, 36 years?
    Mr. Hamilton. Thirty-four.
    Mr. Duncan. Thirty-four. I knew it was something like that.
    You know we've had Secretary Chertoff here as a witness a 
few months ago. He said in a speech, people have to realize 
that we cannot protect everybody against every possible harm at 
every possible moment, and that was one of the most sensible 
things that has been said in this whole discussion since 
September 11th.
    I remember several months after September 11th when we 
passed the farm bill, which had been passed many times before 
just being called the farm bill, but that particular year it 
was called the Farm Security Act, and the Wall Street Journal 
had an editorial and said we should give four times the 
scrutiny to any bill that had the word ``security'' in it 
because every department and agency was using the word 
``security'' just to get more funding. And a whole industry has 
now popped up with hundreds or maybe several thousand 
lobbyists, a whole industry has popped up called homeland 
security, with thousands of companies and individuals coming at 
us with the latest gizmo or gimmick about security, and 
everybody in elected offices is scared not to say that in 
regard to security that we must do more, we must do more, we 
must do more in case something terrible happens, and some bad 
event will happen. But on the other hand, we do need to come to 
our senses a little bit and realize that we still are much more 
likely, hundreds of times more likely, to be struck by 
lightning or even more likely to win a lottery than we are to 
be killed by a terrorist.
    And am I saying we shouldn't do anything? No. We should do 
more, but we also have to have some sort of balance in this 
whole equation.
    We have expanded the FBI by, I think, about 7,000 employees 
since September 11th and nearly doubled its budget. We've given 
even bigger percentage increases to some of the other Federal 
law enforcement agencies. We've got every department and agency 
doing all these things in regard to security, and in some ways 
we're going a little bit overboard, and we've got to be careful 
that we don't create some sort of Federal police state in this 
process.
    We all know Patrick Henry's famous statement, and so do we 
need to do more for security? Yes. But we've got many, many 
other things that the Federal Government needs to do, needs to 
spend money on, and many of these things that we're discussing 
now have a lot more to do with money and funding than they do 
with security. And if we just blindly approve anything that has 
the word ``security'' attached to it, we're going to end up 
wasting a lot of money. We're going to end up not making the 
country really that much safer.
    And I say this, and we all sympathize with those who have 
lost family members in September 11th, and we're going to hear 
from some of them later on, and certainly we appreciate their 
feelings, and that's why we have them here today. And I'm sorry 
that previously scheduled appointments are going to force me to 
come in and out, but it's going to be a very difficult job to 
reach the proper balance between having as safe and secure a 
country as we possibly can without going ridiculously overboard 
and wasting all kinds of money and creating this Federal police 
state.
    So for those reasons, I think it's very, very important 
that you call this hearing and that we have this discussion. 
Thank you very much.
    Mr. Shays. I thank the gentleman.
    Mrs. Maloney.
    Mrs. Maloney. I thank my colleagues and Congressman Shays 
for holding this hearing, and I extend a very warm welcome to 
the former Chair and Vice Chair of the 9/11 Commission, Kean 
and Hamilton, and thank them for their life-long commitment to 
public service. And I truly do believe that the 9/11 
Commission, its report and continued followup of which you were 
part of today is an example of government working at its best, 
finding out what's wrong, coming forward with concrete 
proposals and working to implement them.
    Your book, I nominated it for a National Book Award. We 
didn't win the award, but this 9/11 Commission report book 
literally sold more copies than Harry Potter, and we are still 
studying it and still trying to really implement the thoughtful 
suggestions you put forward.
    On our second panel we have the Privacy and Civil Liberties 
Oversight Board, and finally on our third panel we have a group 
of individuals who I am truly honored to call my friends. These 
are the September 11th family members. They certainly must be 
commended for turning their tragedy into action and forcing our 
government to enact reforms that will make our country safer 
for all people.
    And I wish I could tell them today that their work is done, 
and that they do not have to come back to Washington anymore, 
but sadly there still is a great deal more that does need to be 
done, and we appreciate your being here and your constant 
attention to these challenges.
    We face a Congress and an administration who simply refuse 
to do the tough work necessary to enact and enforce all of the 
recommendations that came forward from the 9/11 Commission. We 
have made a good start with the passage of the intelligence 
reform bill. It broke down the old guard and opened up 
communications between our various intelligence agencies, and 
we should really be proud of the work that we did together in a 
bipartisan way to enact that important reform. And I really 
believe it's the most important piece of legislation I have 
worked on or had the honor of working on since I've been in 
Congress.
    But as the 9/11 Commission reminded us in its final report 
card in December, Congress and the administration have a great 
deal more work to do. Their report card gave us more Fs than 
As, and certainly we are not where we need to be almost 5 years 
after the September 11th attack and 2 years after the 
Commission released its report.
    One F came in the distribution of homeland security 
funding. The Commission stated, and it stated it well, and I'm 
going to quote your report, Mr. Chair and Vice Chair, you said, 
``homeland security funds continue to be distributed without 
regard for risk, vulnerability or the consequences of an 
attack, diluting the national security benefits of this 
important program.''
    And you do not have to look very far beyond last week's 
announcement that New York and Washington, DC's homeland 
security funding is slashed by the Department of Homeland 
Security, and it clearly shows that the administration does not 
get it. Funding for New York City was slashed by 40 percent.
    All intelligence agency directors will tell us that New 
York and D.C. remain terrorist targets, No. 1. And all of their 
intelligence and all of our briefings, New York and Washington 
remain terrorist targets, No. 1. So I do not understand how 
they come out with a formula that gives $15 per capita to 
Wyoming and roughly $2 and change to New York City. Believe me, 
there are more buffalo in Wyoming than there are infrastructure 
that needs to be protected, such as the rail and the air and 
the areas that we need to protect people.
    Furthermore, the radios tragically that did not work on 
September 11th still do not work. And of particular concern to 
me and Congress, and, I believe, the Commission members, is the 
fact that enriched uranium is still out there. We have not 
located it. We have not bought it up, and we have not 
established an Office of Nonproliferation in the Office of the 
President to track this so that we can prevent having a nuclear 
bomb exploding in one of our highly populated cities.
    So I wonder what the report card would be today from the 9/
11 Commission. How in the world do you go from a terrible 
funding formula that does not take into account the risk to 
even making it worse? So your grade would have to be an F, F 
minus minus, or even a zero. And how can we have faith in the 
protection of our country if you see this type of manipulation 
of a formula that looks more like a pork formula than one that 
is addressing homeland security.
    Another issue Congressman Shays and I have been working on, 
which is a focus of this hearing, is the Privacy and Civil 
Liberties Oversight Board. As it currently exists, it does not 
have full subpoena power. Members serve at the whim of the 
President. There are no assurances of a bipartisan breakdown, 
and we are not even required--the members are not even required 
to have any form of civil liberties background.
    What is worse is that the House leadership has denied an 
effort by Mr. Shays and I five times. Five times we have tried 
to debate an amendment that would give the Board subpoena power 
that would strengthen it and give it greater teeth, and I find 
that extremely disturbing.
    In an effort to reverse this trend and to finally enact all 
of the recommendations--there were 41 recommendations we've 
enacted roughly half of them--Mr. Shays and I have introduced 
H.R. 5017, the Ensuring Implementation of the 9/11 Commission 
Report Act, and this legislation tracks the final report's 
recommendations and proposes ways in which to achieve and to 
implement it, and I hope that we will be working to enact those 
proposals.
    I just want to mention that the first time Congressman 
Hamilton spoke to us about the recommendations, he said the 
hardest obstacle would be to get Congress to organize itself or 
reorganize itself to ensure that we are conducting proper 
oversight; that we have standing committees that we have clear 
lines of authority. And your suggestion has come true. We have 
made zero progress in moving toward an organization that really 
strengthens Congress's oversight in that area.
    It is always an honor to hear from the two leaders on this 
important issue, and we welcome you today. Thank you for the 
work that you've done and that you continue to do to make 
America safer. Thank you.
    Mr. Shays. I thank the gentlelady.
    [The prepared statement of Hon. Carolyn B. Maloney 
follows:]

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    Mr. Shays. And, Ms. Ros-Lehtinen, thank you, and you have 
the floor.
    Ms. Ros-Lehtinen. Thank you so much. Thank you, Mr. 
Chairman. And it's a pleasure to have the Governor back with us 
again today and Chairman Hamilton, with whom I had the pleasure 
of serving on International Relations while he chaired it in 
such a wonderful way. It's a pleasure to see you again, Lee.
    And I want to thank the many family members of the victims 
of September 11th who are here with us today, and we thank you, 
and we honor your loss each and every day.
    As all of us know, the recommendations made by the 9/11 
Commission relating to the protection of civil liberties speak 
to the core of our rights as Americans, and their full and 
timely implementation should be of utmost concern to all of us. 
And these civil liberties-related recommendations serve as a 
check in the context of the 9/11 Commission's broader message, 
which is to comprehensively strengthen our national security in 
hopes of preventing future acts of terror in our homeland.
    The Civil Liberties Oversight Board is responsible for 
ensuring that the privacy and civil liberties of the American 
people are appropriately considered in the implementation of 
the 9/11 Commission recommendations. And there has been, as my 
good friend Mrs. Maloney has stated, legislation introduced by 
Chairman Shays and her seeking to increase the investigative 
powers of the oversight board by giving its members subpoena 
powers. And all of us have to debate that because, as we know, 
a careful balance must be maintained between our national 
security interests and our constitutionally guaranteed 
liberties, and as was stated so correctly in the 9/11 
Commission Report, it said, 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, 
as nothing is more likely to endanger America's liberties than 
the success of a terrorist attack 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.
    So we thank all of the Commission members who have done an 
extraordinary job making sure that we protect our homeland, but 
at the same time strike that delicate balance of protecting our 
civil liberties at the same time.
    Mr. Chairman, I have another committee hearing at the same 
time, so I'll stay as long as I can, but I thank you for the 
opportunity to make a statement.
    Mr. Shays. Thank you. Thank you very much.
    And at this time we'll let you close up, Mr. Van Hollen. 
Thank you for being here. And then we'll get right to our 
witnesses. Thank you.
    Mr. Van Hollen. Thank you, Mr. Chairman. And let me thank 
you and Mr. Kucinich for holding this hearing, and thank you to 
our witnesses who are here today.
    Governor Kean, Congressman Hamilton, thank you for your 
service to the State of New Jersey, of course, Governor Kean. 
And Congressman Hamilton was chairman of the House 
International Relations Committee and the Intelligence 
Committee. Thank you for your service to our country. And thank 
you for the great service you did to our country as part of the 
9/11 Commission in issuing the report, which I really think 
helped frame the issues and challenges for our Nation going 
forward, including the very important issue we're talking about 
today, which is civil liberties.
    I also want to thank the September 11th families for making 
sure this country continues to focus on the lessons that we 
have to learn from September 11th and for the very creation of 
the 9/11 Commission itself, because in the early stages, we all 
know not everybody supported the creation, the formation of the 
9/11 Commission. So thank you to the families for that.
    I think we would all agree that it would be a terrible 
irony if, in the effort to protect the freedoms and liberties 
of the American citizens, we were to take actions here at home 
that eroded those very civil liberties, and that's what this is 
all about.
    Now, when you issued your most recent report card back in 
December under the heading of Civil Liberties and Executive 
Power, there were three categories. One of the categories was 
Privacy and Civil Liberties Oversight Board, the creation of 
the Board, and you pointed out that there was little urgency in 
the creation of the Board, and gave us all a D, the Federal 
Government a D, in that area.
    Now, as others have said, there's been some minimal 
progress in establishing the Board, but I must stress minimal 
progress. There's still not, as I understand, much space for 
people to move into. In the budget submitted by the 
administration this year, there was no specific amount set 
aside for the purpose of the oversight board.
    Other weaknesses have been mentioned, including the fact 
there's no subpoena power, and the fact that the Attorney 
General can essentially veto requests for documents. So that 
was a D then. I would be interested to hear if it's gone up at 
all.
    The other category was guidelines for government sharing of 
personal information. At that time they'd not yet appointed a 
Civil Liberties Protection Officer, the DNI had not. That was a 
D at that time.
    The other category was balance between security and civil 
liberties. It was a general category, stating a measure of 
robust and continuing oversight both within the executive and 
by the Congress will be essential, and you were very charitable 
there; you gave us all a B in that area.
    Now, I would note it was shortly after this report card 
came out that the New York Times broke the story about domestic 
wiretapping, and I would also point out that while there's been 
some oversight on this issue in the Senate, the House has been 
essentially AWOL when it comes to that issue. I also serve on 
the Judiciary Committee. We've requested many hearings on that 
very important issue. Not a single hearing in the Judiciary 
Committee on that very important question that raises 
constitutional legal issues, and the role of this Board in 
relation to the whole issue, like the one that was raised by 
domestic--is an open question. I'm not sure the administration 
envisions them having any kind of role in that particular area.
    So I think the questions have only grown since you issued 
that report card back in December, and I think the track record 
of making sure we protect civil liberties suggests that we have 
actually been heading in a downward area, when you look at the 
broad picture, although there may have been progress, 
incremental progress, in certain areas.
    So I'm looking forward to your testimony. I want to thank 
you both for your continued efforts in this area and for giving 
of your time and talents. I also want to thank your terrific 
staff, and I see Chris Kojm is here with you, and others, and I 
want to thank them for their service to our country. Thank you 
both.
    Mr. Shays. Thank the gentlemen very much.
    Taking care of business, I ask unanimous consent that all 
members of the subcommittee be permitted to place an opening 
statement in the record, and that the record remain open for 3 
days for that purpose. And without objection, so ordered.
    I ask further unanimous consent that all witnesses be 
permitted to include their written statement in the record, and 
without objection, so ordered.
    We have before us the Honorable Thomas H. Kean, Chair, 
National Commission on Terrorist Attacks Upon the United 
States, and we welcome him. And we have the vice chairman of 
that same Commission. I think it's fair to say both of you 
functioned as cochair, and you clearly were there at a very 
important time in this country's life, and we're very grateful 
to both of you.
    As I think you know, this is an investigative committee, 
the Government Reform Committee. We do swear in all our 
witnesses. You would understand that the only one I ever failed 
to swear in in 10 years was the Senator from West Virginia, but 
everyone else has been sworn in. So if you would rise, I will 
swear you in.
    [Witnesses sworn.]
    Mr. Shays. Thank you very much, gentlemen. We look forward 
to hearing from you. There's no clock timing you. It's just 
really important we put on the record whatever needs to be put 
in. And you've spent the last 40 minutes listening to Members 
of Congress. I think we can reciprocate.
    So, Governor?

  STATEMENTS OF THOMAS H. KEAN, CHAIR, NATIONAL COMMISSION ON 
   TERRORIST ATTACKS UPON THE UNITED STATES, PRESIDENT, THK 
     CONSULTING; AND LEE H. HAMILTON, VICE CHAIR, NATIONAL 
    COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES, 
PRESIDENT AND DIRECTOR, THE WOODROW WILSON INTERNATIONAL CENTER 
                          FOR SCHOLARS

                  STATEMENT OF THOMAS H. KEAN

    Governor Kean. Chairman Shays, Ranking Member Kucinich, 
members of this panel, it's an honor and a privilege to appear 
before you today, particularly with the families who never, 
ever, ever give up, which is wonderful, to testify about the 
status of our recommendations of the 9/11 Commission.
    It's almost 2 years since we completed the largest 
investigation of the U.S. Government in this country's long 
history. A mandate of the Commission was to investigate and 
report to the President and the Congress on its findings, 
conclusions and recommendations for corrective measures that 
can be taken to prevent acts of terrorism.
    We found in our report that the government failed in its 
duty to protect us on September 11th. We found failures on 
imagination, policy capabilities and management, and we made 41 
recommendations to ensure that we do everything possible to 
prevent another attack.
    Now, to continue our work after the Commission officially 
ended, we formed a nonprofit organization, the 9/11 Public 
Discourse Project, for the purpose of public education on 
behalf of our recommendations.
    Now, many of the Commission's recommendations, including 
those to reorganize the Intelligence Community, were taken up 
by the Congress and enacted in the Intelligence Reform and 
Terrorism Prevention Act of 2004, but we all understood one 
thing, and that was changing the law is only the first step in 
changing public policy. No law is self-executing. 
Implementation is often the more difficult step.
    The Public Discourse Project tracked both legislation and 
implementation of the Commission's recommendations, and we 
issued a report card in December 2005. That report card 
contained 1 A, 12 Bs, 10 Cs, 12 Ds, 4 Fs, and 2 incompletes. In 
other words, we found a very mixed record, but we've continued 
to track those recommendations since we issued our report card. 
But I have to say our perspective now about 6 months later is 
just about the same. There is still a great deal we have to do 
and still haven't done to protect the American people.
    So what do we need to do? We analyze the 41 recommendations 
from another standpoint. Where do we need legislation? And 
where do we need to work on implementation? We found that 
roughly half the commissions were addressed by legislation, and 
at the end of 2004 Intelligence Reform and Terrorism Prevention 
Act, the bigger problem we found was the challenge of 
implementation. Even when the letter of our recommendations 
written into law, there has been a lack in implementation. In 
some cases implementation can be expected to take years. In 
every case, the Congress needs to provide robust oversight to 
ensure that these reforms are carried out.
    For this reason we welcome and strongly support the bill 
H.R. 5017 introduced by Chairman Shays and Representative 
Maloney. H.R. 5017, a bill to ensure implementation of the 
recommendations to the National Commission on Terrorist Attacks 
Upon the United States, changes the law where necessary to 
carry out the recommendations. But just as importantly, H.R. 
5017 shines a bright light on the question of implementation, 
and ensuring that the executive branch agencies stay focused in 
carrying out what the law that you passed already requires.
    We believe our time before you today is best spent focusing 
on a few issues where the attention of the Congress is perhaps 
most necessary. First, scarce homeland security dollars must be 
allocated wisely. Right now those funds are spread around more 
revenue-sharing projects. Pork barrel politics, I know, is a 
time-honored approach in Washington, but this pork barrel 
approach, when we're talking about the safety of the American 
people, just can't be allowed to prevail.
    In our report we recommended homeland security funds be 
allocated on the basis of the greatest risks and the 
vulnerability of attack. Secretary Chertoff himself has stated 
many times the position of the administration in support of 
funding based on risk and vulnerabilities, a position we all 
strongly support. Therefore, we were surprised and we were 
disappointed that analysis by the Department of Homeland 
Security has led to proposed cuts in homeland security funding 
for New York and for Washington, DC.
    The terrorists targeted New York and Washington. So far as 
we know, they continue to target those symbols of America's 
strength and America's power. It defies our understanding of 
the nature of the threat to reduce funding designated to 
protect New York and to protect Washington. We await further 
explanation.
    Last year the House of Representatives passed a very good 
bill--three times you passed it--which would focus scarce 
resources on the greatest risks and the greatest 
vulnerabilities. On two separate occasions, including most 
recently the conference committee on renewal of the PATRIOT Act 
earlier this year, the House provision on homeland security 
funding was in conference with the Senate. In both cases, 
nothing emerged. Senate conferees rejected the House position. 
Now, we gave the Congress an F because of its failure to act in 
a risk-based and vulnerability-based formula for homeland 
security funding, and we actually feel because of that, that 
letter grade was deserved. Until and unless the Congress sends 
a bill to the President allocating homeland security funding on 
the basis of risk, we will continue to squander dollars which 
are enormously scarce in this area.
    In the area of emergency response, States and localities 
need to practice their plans for emergency response. If we 
hadn't learned before, we must have learned from Hurricane 
Katrina the lesson that we should have learned on September 
11th. Every metropolitan area, every locality needs to have a 
working response plan that embraces a unified incident command 
system. A response plan needs to be practiced, needs to be 
exercised regularly. You cannot wait for a disaster to hit and 
then suddenly look for a plan. All first responders need to 
know from the moment they learn of a disaster who is in charge 
and what their individual job is to do.
    The Department of Homeland Security requires a unified 
incident command system to be in place, or States will be 
unable to receive homeland security funding after October 1, 
2006. And that's a good provision as far as it goes. During 
Katrina, Louisiana and New Orleans had a paper plan, but it 
wasn't executed when it was most needed. DHS needs to make sure 
that these plans are living documents, that first responders 
practice working together. If you are a first responder and you 
are talking to your counterpart for the first time the day the 
disaster hits, that emergency response plan will fail.
    In addition, first responders still don't have the ability 
to talk to one another effectively. The Commission recommended 
the Congress expedite for public safety purposes the allocation 
of a slice of the broadcast spectrum ideal for emergency 
communications. Those frequencies able to get messages through 
concrete and steel high-rises without difficulty are now held 
by television broadcasters. Now, they'd been promised to these 
brave men and women in the public safety area. They've been 
promised for a decade, and now they'll finally be turned over 
to first responders in February 2009. H.R. 5017 includes the 
text of the Homeland Emergency Response Act, the HERO Act, to 
provide this broadcasting spectrum to first responders much 
earlier, by January 1, 2007. This will save lives.
    We strongly endorse this earlier date. The reason is 
simple. Who can say that we're going to have no disasters 
before 2009? No terrorist attacks? Why should public safety 
have to be put on hold for the next 3 years in order to 
accommodate the broadcast industry? It is scandalous, and we 
call on the Congress to act.
    I'd like to turn over to my friend, colleague and guy I try 
to emulate from time to time, Lee Hamilton.

                  STATEMENT OF LEE H. HAMILTON

    Mr. Hamilton. Thank you very much, Chairman Shays and Mr. 
Kucinich, Mrs. Maloney, Mr. Van Hollen. Thank you for the 
opportunity to appear before you today. Governor Kean and I 
appreciate very much the most gracious comments you made about 
the 9/11 Commission and our work.
    It's a great pleasure for me, of course, to appear with 
Governor Kean. He is one of the great public servants of my 
generation and a remarkable leader. And both the Governor and I 
thank you very much, those of you who have cosponsored H.R. 
5017, because it incorporates our recommendations.
    I suspect the key recommendation of the 9/11 Commission in 
many respects was the requirement, we believe, for the 
government to share information, and we missed so many 
opportunities on that day, and because--with that plot because 
the government did not share information.
    I think overall the Federal Government is doing a better 
job of sharing information today, but it comes very hard. It's 
difficult to do, and I think there is still plenty of room for 
improvement in the executive branch with regard to the sharing 
of information. There are also very huge gaps in information 
sharing, and we notice that particularly with regard to sharing 
information with State and local officials and government. The 
first Presidential-appointed Program Manager for Information 
Sharing did not receive the support that he needed to carry out 
his task. There is now a new program manager, but a lot of 
time, very precious time, has been lost.
    A very important milestone is coming up in the next few 
days. It is the due date of the report due June 14th from the 
Program Manager for Information Sharing and the Director of the 
National Counterterrorism Center. That report will provide 
detailed guidance for an information-sharing environment due to 
be created by the end of this year. I urge this committee to 
review that report very carefully. It will be the blueprint for 
future information sharing.
    Both of us continue to hear about turf fights about who is 
in charge of information sharing, particularly with regard to 
State and local governments. We continue to hear complaints 
from State and local officials about the quality of information 
that they receive. I suspect you've heard those complaints 
yourself. So I think the problem of information sharing is very 
far from being resolved.
    With respect to the FBI, I think reform continues to move 
in the right direction, but at least, by our likes, has been 
far too slow. These problems have been well documented by the 
Commission, by the Department of Justice's inspector general, 
and by the very fine work of the National Academy of Public 
Administration.
    Numerous problems still impede the Bureau: failure to 
improve the FBI's inadequate information technology, an 
extensive effort is now being made there; continuing 
deficiencies in the FBI's analytical capabilities, also efforts 
being made there; shortfalls in information sharing; too much 
turnover in the work force, and particularly in the leadership 
positions; and insufficient investment in human capital and 
training. All of these things are very well known to the FBI.
    We have a lot of respect for the Director, Mr. Mueller. 
They have taken some steps forward. Sometimes they've gone 
backward with regard to the computer systems, for example. So 
it has a ways to go, and in many respects it's still 
struggling.
    Many of you commented in your opening statements on the 
Privacy and Civil Liberties Oversight Board. It was of interest 
to me that in all of the recommendations that we had, there was 
just total unanimity and support on this recommendation from 
the very first; not a single dissent, at least as I remember, 
Governor Kean, and so we recommended it, and the Congress has 
created it. It's the only office within the executive branch to 
look across the government at actions we are taking to protect 
ourselves, to ensure the privacy and civil liberty concerns are 
appropriately considered.
    In conducting the global war on terror, you have a huge 
expansion of government. That's already been alluded to by the 
opening statements, but not only do you have an expansion in 
the resources of government, you have an expansion in the power 
of government, the intrusive powers of government in fighting 
the global war on terror. In that environment, then, it is our 
belief that the government needs a very strong order of powers 
to protect us, but it also needs to have a very strong voice 
within the executive branch on behalf of the individual and on 
behalf of our civil liberties.
    We commend this subcommittee for inviting the Chair and the 
Vice Chair of the Board to testify before you. We've had an 
opportunity at least to speak to them very briefly, and we want 
to do everything we can to encourage their work. We think their 
work is essential, important in the so-called war on terror.
    The Board needs to move forward smartly with its important 
mission. The stories we read in the newspaper every day point 
out the importance of a strong voice, a second opinion, if you 
would, within the executive branch before it goes ahead with 
information-gathering measures.
    On the question of airline passenger screening, we still 
confront a very frustrating situation. We still, after all 
these months and years, do not screen passengers against a 
comprehensive terrorism watch list before they get on that 
airplane. The airlines do the name checking, and the government 
wants to protect sensitive information and, therefore, does not 
share all names on its watch list with the airlines. So the 
airlines screen passengers against an incomplete list.
    The solution recommended by the Commission is a 
straightforward one, the government should do the name checking 
of all passengers against its own comprehensive watch list. As 
we approach now the fifth anniversary, as the chairman referred 
to, of September 11th, there seems to be very little prospect 
that we can see--at least that we will achieve this solution. 
We understand some of the problems that stand in the way: Poor 
management; we believe that the Transport Security 
Administration is one. Attempts to integrate commercial data 
into the screening process are another, and they have set off a 
host of civil liberties and privacy issues. There are also many 
questions about the security of the personal data. The proper 
solution to passenger screening appears at this point to be 
delayed indefinitely.
    Several of you mentioned congressional reform. Congress 
needs powerful intelligence and homeland security oversight 
committees. The Congress has provided powerful authorities to 
the executive branch in order to protect us against terrorism, 
and now it needs to be an effective check and balance on the 
executive.
    Because so much information is classified, Congress is the 
only independent oversight on the full breadth of intelligence 
and homeland security issues before our country. Turf battles 
have kept the oversight committees weak. They need stronger 
powers over the budget, and they need exclusive jurisdiction.
    The Congress cannot play its proper role as a check and 
balance on the actions of the executive if the oversight 
committees are weak. To protect our freedoms, we need robust 
oversight.
    Finally, preventing terrorists from gaining access to 
nuclear weapons must be elevated above all other problems of 
national security. Nuclear terrorism would have a devastating 
impact on our people, on our economy, on our way of life. 
Almost unimaginable. The Commission call for a maximum effort 
against this threat.
    We had such a traumatic day on September 11th, but we lost 
3,000 people or so. We estimate that if a nuclear weapon 
explodes in the heart of New York City, you lose 500,000 
people, dead. You can just hardly imagine what the consequences 
would be for the United States. So given the potential for 
catastrophic destruction, our current efforts fall short of 
what we need to do.
    We see increased efforts by the administration to improve 
nuclear detection technology at our ports and borders, and we 
commend that. Those are good steps, but we cannot be safe if we 
rely only on our last line of defense to protect us. We need a 
stronger forward-leaning policy, a policy to secure nuclear 
materials at sites outside of the United States. If those sites 
are secure, the terrorists cannot get nuclear materials. If the 
terrorists cannot get nuclear materials, they cannot build 
nuclear bombs.
    The President should request the personnel and the 
resources and provide the domestic and international leadership 
to secure all weapons-grade nuclear material as soon as 
possible in the former Soviet Union and the rest of the world. 
There simply is no higher priority on the national agenda, 
security agenda.
    As we review our recommendations, it is clear that so much 
more needs to be done and so little time left to do it. We do 
not believe that the terrorists will wait. If we can make 
progress on our recommendations, we will make significant 
progress in providing for the common defense, the first purpose 
of government. We believe that the task before us is urgent. We 
thank you for your leadership on this, members of this 
subcommittee, and we look forward to your questions.
    Mr. Shays. Thank you very much, Mr. Hamilton. Thank you 
again, Governor Kean.
    [The prepared statement of Mr. Kean and Mr. Hamilton 
follows:]

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    Mr. Shays. What we'll do is we'll do 10-minute rounds 
instead of the 5, and I think I'd like to defer my questions a 
little later. So, Mr. Kucinich, we'll start off with you.
    Mr. Kucinich. Thank you very much, Mr. Chairman.
    Mr. Hamilton, given your responsibilities with the 9/11 
Commission, as well as your previous role chairing the House 
Intelligence Committee in the 1980's, are you surprised that 
the administration never informed the 9/11 Commission or all 
members of the House and Senate Intelligence Committee, even in 
closed session, of the NSA programs that have been the subject 
of much debate? And do you agree that it's essential that there 
be both judicial and congressional checks on NSA spying on 
Americans given the abuses found by the Church Committee in the 
1970's that led to the creation of the Select Congressional 
Intelligence Committee?
    Mr. Hamilton. I have to make clear, Mr. Kucinich, that your 
question calls for an answer that goes far beyond the 9/11 
Commission, and so I speak personally here and not as a member 
of the Commission.
    I think the world in which we live, with the enormous data 
collection capacities that we now have, calls for a new 
framework in dealing with this kind of technology, and it 
certainly needs a new law. The law that is in existence today I 
think was passed in 1986. I think the President was confronted 
with a very difficult dilemma as how to adapt these data mining 
techniques that produce such massive amounts of data and have 
become a very important tool in protecting us against 
terrorism.
    Your question is, should he have consulted the Congress? My 
view on that of course is that he should have. We confronted 
not this kind of a problem, but similar situations in time 
past, and I think the appropriate way to proceed would have 
been for the President to call in key congressional leaders to 
the White House and to say, look, we've got a very tough 
problem here, we've got a new technology, this technology is 
terribly important to the national security interests of the 
United States. The present law is not a satisfactory law, I 
need your help in crafting a new law that takes into account 
the new technology and, in that process, to devise checks and 
balances so that at least key Members of Congress are 
adequately informed.
    I know there are certain negatives to the approach that 
I've suggested, but I think it would have been a better way to 
proceed, and I do think it's necessary for the Congress to be 
informed on these matters because accountability and checks and 
balances is what the Constitution of the United States is all 
about.
    Mr. Kucinich. I thank the gentleman.
    Governor Kean, you told the New York Times in January that 
the 9/11 Commission was never told about the NSA program to 
monitor Americans' telephone conversations without a court 
order. The 9/11 Commission, as I understand it, had high level 
security clearances, and yet the NSA program to spy on the 
conversations of Americans were never disclosed to the 
Commission.
    My question, did you or other members of the Commission 
discuss with administration officials compliance with the 
Foreign Intelligence Surveillance Act, as amended by the 
PATRIOT Act, which would cover these types of programs? And do 
you agree that the rule of law requires independent checks and 
balances, and that a program to monitor Americans' private 
calls without any proof they are conspiring with al Qaeda risks 
not only invading the privacy of innocent Americans, but also 
wastes precious antiterrorism resources on innocent Americans?
    Governor Kean. Well, I certainly agree with my colleague 
that checks and balances are absolutely essential in this area. 
No one branch of government should be doing these things 
without consultation with the other branch. That's my belief.
    We had a very specific mandate from the Congress and from 
the President. This was a program that went into effect after 
the period which we were mandated to look at. In that regard, I 
think the only way in which the White House could have talked 
about it with us was prospectively, going forward, is this 
would have been one of the things that perhaps the Nation 
should be doing, and they chose not to do so.
    Mr. Kucinich. Well, here we are discussing civil liberties 
in this new era, and we see that the 9/11 Commission wasn't 
really informed, we see that the Congress was largely unaware, 
and we have a condition here where a board that you recommended 
establishing really isn't functioning in any meaningful way. 
That being the case, what would you recommend at this point 
that we do to protect the civil liberties of the people of the 
United States?
    Governor Kean. Well, one of the things I think you're doing 
with this hearing, and that is to ensure that the Civil 
Liberties Board has the prestige, the power and the attention 
that it needs in order to do the job that we envisioned for it 
in the Commission and that you envisioned for it when you 
passed the bill in the U.S. Congress.
    Mr. Kucinich. Does it need subpoena power?
    Governor Kean. Again, I have to talk individually here 
because we did not recommend that in our report; but what we 
did recommend is that the Board must be strong and have strong 
powers, and the inference would be that possibly subpoena 
powers or something is needed in order to make it strong.
    Although we seldom used subpoena power in the work in the 
Commission, the fact that we had it served as a very, very good 
tool in helping the government agencies to expedite our 
requests.
    Mr. Kucinich. Your report, well, nevertheless isn't about 
volume, it's also work in progress as you learn more 
information. At this point, seeing where this issue of security 
and civil liberties continues to hang in the balance, would you 
now be willing to say that such a board, in order to give it 
important impact, would merit subpoena power?
    Mr. Hamilton.
    Mr. Hamilton. Mr. Kucinich, I think, first of all, we're 
very pleased that the Congress saw fit to create the Privacy 
and Civil Liberties Oversight Board. We're very pleased that a 
civil liberties protection officer has been named in the 
office, I think, of the Director of National Intelligence. 
Those are positive steps, we are pleased with them.
    I think we're very disappointed that it took us so long to 
get here where we are, to have a board in operation and to have 
a civil liberties protection officer named. It took far too 
long to name the Board, to find a place to operate, to staff, 
to fund, but these things are now underway. You're going to 
hear more about that in a few minutes from people who know more 
about it than I do.
    The challenge now is for this board to move forward 
smartly, aggressively with the important mission. And the 
challenge of your committee is to make sure that board has the 
powers it needs--perhaps subpoena power--but has the aggressive 
power to reach into every branch of government to get the 
information that it needs to determine whether the civil 
liberties and the privacy of the American people are being 
violated. If this board does not do it, it's not going to be 
done. And so I think all of us on the Commission--I think I can 
speak for all the Commission members here--believe that a 
robust board is essential.
    Mr. Kucinich. Well, I'm glad to hear you say that, Mr. 
Hamilton. And forgive my skepticism that in all of this process 
after September 11th, the American people are now having to 
rely more and more on a board which doesn't really function yet 
as opposed to investigative committees of the Congress, House 
and the Senate, providing effective checks and balances. I 
mean, we didn't need--my view, not speaking for the committee--
in my view we didn't need this board. We just needed a Congress 
that was willing to provide effective checks to the 
administration's power. That's the way the Constitution was set 
up, three branches of government. Congress is a co-equal branch 
of government, but we don't need the administration to tell us 
that we can't go in and ask the right questions and demand the 
right answers. I mean, we have the ability to reign in the 
administration's abuse of power with respect to civil 
liberties.
    You know, when I see that millions of phone calls can be 
scanned by this administration, by its orders, when I see the 
effect of the PATRIOT Act, I have to ask, with all due respect 
and gratitude for the 9/11 Commission, for its recommendation 
of the Privacy and Civil Liberties Oversight Board, hey, that's 
the job of Congress, hello.
    Thank you.
    Mr. Shays. I thank the gentleman.
    At this time the Chair would recognize Mrs. Maloney.
    Mrs. Maloney. Thank you.
    Governor Kean, you mentioned in your testimony today that 
you issued a report card on our efforts in December, and we had 
more Fs than As, but we got one A in antiterrorism financing, 
which is a very difficult area to put some strong controls on, 
and as a member of the Financial Services Committee, I was part 
of that effort and I'm glad to hear that you recognized our 
work.
    But in your opinion, why were we able to get some things 
right and yet we did so poorly in other areas?
    Governor Kean. Well, some of these areas are very tough, 
and we knew it when we made our recommendation. I mean, we made 
a deliberate attempt in the Commission to make recommendations 
which we knew--because all of us have been around politics and 
government a lot--would be very, very difficult to implement, 
but we decided to reach, in a sense, knowing that the 
implementation would be difficult.
    Now I'm not an expert, as my colleague is, on the 
Intelligence Community, but the culture I learned in those 
agencies, existing for so many years, it seems to be very hard 
for them to communicate with one another. That whole culture is 
one of secrecy, and even communicating with our own 
intelligence agencies is very, very difficult. And I think it's 
starting to happen, the machinery that you set up in the bill 
you passed is starting to happen, but it's much too slow for 
the need.
    You know, we talked about if I thought there was one easy 
recommendation that there would be no problem with is to 
allocate funds on the basis of risk. That just seemed to me an 
easy one. Who is arguing against that?
    Mrs. Maloney. But I'd like to followup on that. Governor 
Kean, you gave us a big resounding F on our high-risk formula, 
but the plan that came out last week cut aid to the city of New 
York and Washington, DC, the two highest threat areas, by 40 
percent. And the Department of Homeland Security, almost in 
disbelief on my part, they're continuing to defend this formula 
as risk based. And would you consider a 40 percent reduction 
to, by all accounts, by all intelligence, all 15 different 
agencies looking at intelligence, that a 40 percent reduction 
to New York City and Washington, DC, is an appropriate risk-
based distribution? And what grade would you give them now? You 
gave them an F before. Now this formula is even more outrageous 
and not based in reality or high risk in any way. How would you 
grade them now? And what would you suggest to those of us in a 
bipartisan way on this panel who would like to have a high-risk 
formula to better defend our country?
    Governor Kean. Well, first of all, I'm a teacher. That's 
what I did before I got into anything else. It's very hard to 
give below F, if I might at this point, but it's very 
difficult. Having said that, you have the bill, you've been 
trying hard in this in the House to get it adopted into law, 
that will mandate a formula based on risk. I mean, now you 
have--and all I know is what I read in the newspapers--now you 
have, I gather, a secret group of people, I mean we're not 
allowed to know their names, making some kind of a decision 
which results in a formula which defies common sense. I mean, 
we know bin Laden wants to target New York again, he wants to 
target Washington. Those are his two prime targets. He said it, 
his followers have said it, it's logical.
    So I just do not understand the present formula or the 
results of whatever formula they're using. And I would suggest 
that you redouble your efforts and perhaps convince one or two 
Senators is what we need to get a proper bill through that 
would mandate a risk-based formula, which I think everybody 
basically would agree no matter where you're from. I'm from New 
Jersey. We need funding. We've got serious problems. We've got 
a nuclear facility. We've got a number of other things. But I'm 
mad about New York City not getting what it needs, I'm mad 
about Washington, because those are the No. 1 and No. 2 
priorities, and we ought to feel that way nationally no matter 
where we come from, I think.
    Mr. Hamilton. We give an A to the House. The House has 
passed the bill three times, and it's exactly the legislative 
language you need. The problem is coming of course from the 
conference committee where the Senate apparently prevailed.
    May I just observe on the question of homeland security 
funding? It has always seemed to me that the really tough job 
here is the establishment of priorities. You have limited 
resources, you can't protect every piece of critical 
infrastructure, you can't defend against every tactic that the 
terrorists might employ. And what that means is that 
policymakers have to make very, very tough judgments on what 
they're going to protect and what they're not going to protect, 
what kind of things they're going to protect against and what 
kind of things they're not going to protect against. And when 
you make those judgments, you can be wrong because you're 
making judgments on insufficient data. But the fact that it's a 
very tough judgment to make, what do you protect and what you 
don't, is not a reason for not making the judgment.
    Now the language, if you look at the rhetoric here, it's 
pretty good. We're going to protect on the basis of risk and 
vulnerabilities. I think Secretary Chertoff has said that any 
number of times. That's good, the problem is doing it. And here 
we are several years after this idea of protecting on the basis 
of risk and vulnerabilities and we're still not making--not 
just the Federal Government, but State and local officials as 
well and private sector people are not making the judgments 
that have to be made to protect infrastructure and to protect 
people.
    Everybody in their local community knows what targets a 
terrorist would be after, they know their community, and in 
very few communities are adequate steps being taken to protect.
    Mrs. Maloney. On the line of knowing what we need to do and 
needing the political will to do it, I remember the first time 
both of you addressed the Democratic Caucus, and you spoke 
really passionately about stopping terrorists from gaining 
access to nuclear materials. Everyone talks about it, everyone 
knows the high threat. You wrote that possibly 500,000 people 
could die in New York City, my home turf, if they had a nuclear 
bomb, but we're not moving forward. We have bills before 
Congress, we have not allocated the moneys to go out and buy up 
the weapons grade nuclear material as soon as possible. We're 
not taking steps in this very dangerous direction. And it was 
in your testimony, but I would like both of you to elaborate 
further on what steps we can be taking, what we should be 
doing, you are both veterans of Congress, of legislation, of 
State government, and what can we do to move forward in this 
really critical and dangerous area? Five years, and we have not 
moved in any meaningful way in this direction for this threat.
    Governor Kean. We're moving, but very, very slowly. I mean, 
we are doing some things, but it's going to take us 14 or 15 
years to get these sites tapped down. Enriched uranium, there 
are about 100 sites in the world. If we gave it the necessary 
priority, I've been told we can do it in about 3 years. But 
that means everybody's got to be talking about it. I mean, the 
President has said that it's the most dangerous threat facing 
the country, he said that. All right. Then if it's the most 
dangerous threat facing the country, then you've got to talk 
about it a lot more, you've got to devote more resources do it. 
It should be on the front pages of the papers, not the back 
pages. It should be on the talk shows, it's what we should be 
talking about.
    I was delighted, by the way, to get a note just the other 
day from Congressman Andrews, my State, who said he and Jim 
Leach had just gotten an amendment through to the Energy, Water 
and Development appropriations bill which is going to put some 
dollars in this area, adding $27.8 million, he said, to the 
Global Threat Reduction Initiative. I mean, that's a help. 
People I know in the Congress are working on it, but I think 
we've got to redouble our efforts. And we've got to let the 
American people know. If this is the greatest threat, we've got 
to talk about it, I think, a lot more, because only by talking 
about it and recognizing it are we going to deal with it, what 
this would do to our economy, let alone the number of lives 
lost.
    And I tell you to talk to Senator Sam Nunn and a number of 
others who are working on this, and the threat is very, very 
real. And there is nobody in our government right now who's 
going to be able to ensure us that there is not right now a 
terrorist who's working toward our borders already with those 
materials in their possession, some the size of a football. 
It's not hard to do.
    Mrs. Maloney. Congressman Hamilton.
    Mr. Hamilton. It's of course a matter, basically, of 
political will, and it's a judgment about priorities, what is 
most important in terms of the national security of the United 
States. The Commission was unanimous on this point, too. You 
look at all of the national security issues before us--and 
there are literally hundreds of them--we said this is at the 
top of the heap; this is the No. 1 national security issue, bar 
none, not because it's the most likely event but because the 
consequences of it would be so horrendous.
    Governor Kean mentioned a moment ago that we should re-
double our efforts. The Commission did not comment on this 
specifically. My personal opinion is we should triple our 
efforts. We've got the program in place, you've got the 
Cooperative Threat Reduction Program in place, it's a matter of 
funding it much more generously than we have. This has been in 
place for I don't know how long, 10, 15 years. And it has had 
some results, but they're terribly, terribly slow, and so it 
just has to be accelerated.
    I think it's important to say that a lot of progress has 
been made on nuclear detection technology at our ports and 
borders, a lot of work is being done here, but it's our 
impression that most of that work is being done here. And the 
real challenge is to get at the source, and the source are the 
nuclear materials abroad. And that creates a lot of problems in 
terms of going into other countries and examining their nuclear 
program and their nuclear materials, getting their cooperation. 
The defense establishment of Russia doesn't particularly like 
us hunting around their nuclear program any more than we like 
them looking at our nuclear program.
    So it's a tough matter, but I think progress has been made 
slowly, and it just has to be accelerated. It needs a lot more 
money and it needs a lot more people who are willing to go over 
into Russia--this is not easy work--and work to secure these 
materials.
    Governor Kean. But the American people, by the way, don't 
understand--I've been speaking on this. What they don't 
understand is that once the terrorist gets these materials out 
of the site that you can read on the Internet how to put the 
bomb together, and then we all know getting it into this 
country with the current border situation is not that 
difficult. So you have to contain it at the site. Once the 
American people understand that, at least when I've given talks 
on it, they get very alarmed and they want something done but I 
don't think they really understand the threat and how important 
it is that we do this program.
    Mrs. Maloney. Thank you. My time is up.
    Mr. Shays. Thank you. I can't wait to jump in, but I'd like 
Mr. Van Hollen to go and then I'll jump in. I just want to make 
this one point.
    You have clearly pointed out what you consider the most 
serious threat, but it seems to me that it also points out that 
the new strategy of detect and prevent means that we want to 
have the kind of capability to detect so that if they 
unfortunately do get this weapons grade material we know about 
it and can stop it. And it seems to me that goes with it.
    Mr. Van Hollen.
    Mr. Van Hollen. Thank you, Mr. Chairman. And I thank both 
of you gentlemen for your testimony today.
    Let me just start out with the issue of congressional 
reform and oversight----
    Mr. Shays. Could I ask the gentleman to suspend? I would 
like Mr. Duncan to go and then to have you go, if you don't 
mind, and you will go next.
    Mr. Van Hollen. That's fine.
    Mr. Shays. I thank you for your patience. You've always 
been very gracious with me. Thank you.
    Mr. Duncan.
    Mr. Duncan. Thank you very much, Mr. Chairman. And once 
again I apologize for popping in and out----
    Mr. Shays. Not necessary. Let's get to the questions.
    Mr. Duncan. I'll just go back to Mr. Van Hollen. I will say 
this; I did come back in, enough to hear the Governor express 
how difficult it is to set priorities and that he was mad about 
New York City, and there is a lot of concern about that. And of 
course as Congressman Hamilton said, that's our job to make 
these tough decisions.
    But you know, the problem, as I see it, in addition to what 
I said in my opening statement, there is not any congressional 
district hardly in the country that's not real close to some 
high priority facility. I mean, so many districts have major 
military installations. In my own home, while I don't represent 
Oak Ridge, it's very close to the Oak Ridge operations. And I 
live about 15 miles from the Oak Ridge facility. I mean, every 
district in the country is in that situation, and so that's 
another one of the difficulties we face.
    But I agree with what Congressman Hamilton said, that's 
what we have to do. And I apologize, I hope I can stay for a 
little while now, but I'll just turn it back over to 
Congressman Van Hollen.
    Mr. Shays. Mr. Van Hollen, you have your 10 minutes 
starting now.
    Mr. Van Hollen. Thank you, Mr. Chairman.
    Let me start with the issue of congressional reform and 
oversight. You stated in your testimony Congress needs powerful 
intelligence and homeland security oversight committees, that 
Congress has provided powerful authorities in the executive 
branch in order to protect us against terrorism, and now there 
needs to be an effective check and balance on the executive. I 
think that's very good advice and I think you put it very 
diplomatically in your testimony.
    From my own perspective, with few exceptions, the House of 
Representatives has been totally AWOL on this issue. This has 
been an oversight free zone. You talked about the need for 
checks and balances. We have been much more of a blank check 
and a rubber stamp, and I think that's gotten us into a lot of 
trouble as a country. And I think that much more vigorous 
oversight is needed in that area.
    There's no need for further comment, other than the fact I 
assume you haven't changed your grade from a D to any higher 
grade, have you?
    Governor Kean. No.
    Mr. Hamilton. We may lower it.
    Mr. Van Hollen. I would suspect so. I mean, as the Governor 
said, you can't get lower than an F, but I think an F might be 
more suitable at this point in time.
    I just want to also associate myself with the remarks you 
both have made and Congresswoman Maloney has made with respect 
to the distribution formula. It defies common sense to see cuts 
in the amounts that are going to New York City and the 
Washington metropolitan area, clearly two of the top terrorist 
targets. Obviously we don't want to focus on the last war, we 
always want to look at future threats and evolving threats, but 
I think anyone knows that those two centers remain highly 
symbolic and important targets and it just makes no sense at 
all to cut the moneys in those areas.
    With respect to the No. 1 threat that you both focused on, 
which is the danger of nuclear materials falling into the hands 
of the terrorists and the fact that we have not addressed this 
with the urgency that we should, I'm interested in whether 
you've changed your grade. You're right, there was the Andrews-
Leach amendment. It did provide an additional amount of 
funding; it has to get through the process. The administration 
didn't request that money. Have you seen anything that's 
significant enough to change the grade in that area from a D?
    Governor Kean. No, no. It is not top of the priority list 
as we think it ought to be.
    Mr. Van Hollen. Right. I think that's clear. And I agree 
with the chairman's remarks, I'm sure he'll elaborate on them, 
that we do need to, in the event someone does get their hands 
on these nuclear materials, be in a position to go after them 
effectively.
    Let me ask you with respect to the Civil Liberties Board, 
because we're going to have an opportunity to talk to them in a 
little bit. Under your vision of the authorities of that board, 
would oversight of the type of activity that's going on at the 
NSA with respect to domestic wiretapping be covered? Under your 
vision of what the responsibilities of that board would be, 
would they not include some oversight and jurisdiction over the 
type of activities that are going on at the NSA with respect to 
domestic wiretapping?
    Mr. Hamilton. Absolutely.
    Governor Kean. Yes.
    Mr. Van Hollen. And would it be your vision that board 
would have the authority to get the information necessary 
regarding those activities to draw some conclusions and 
recommendations?
    Mr. Hamilton. Absolutely, the answer is yes. Look, if the 
Board does not have the power to get the information they need, 
you may as well not have the Board. They have to have that 
power, and they've got to be able to reach into every nook and 
cranny of the Federal Government to get the information that 
they need.
    Mr. Van Hollen. I agree, and I'm concerned that as it was 
set up it wasn't much of a tiger to begin with, and it will be 
totally a paper tiger if it doesn't have those authorities. And 
I think we understand the challenge; I mean, this is an 
administration that has refused to even give at least 
provisionally the members of the intelligence committees in the 
House and Senate sufficient information to determine what was 
going on in this program. I mean, as you said, Mr. Hamilton, we 
have to make a decision about whether or not to amend the law 
to bring this program within the jurisdiction, but not knowing 
enough about the program, it makes it very difficult. And it 
would be interesting to find out whether or not the members of 
the Board have had any luck, whether they've asked for it and 
whether they've had any luck in getting information about that 
important program.
    Let me ask you--you didn't cover it in your testimony, but 
it was one of your items on your report card back in December, 
which is the question of long-term commitment to Afghanistan.
    Mr. Hamilton. The question?
    Mr. Van Hollen. The long term commitment to Afghanistan.
    Now, I think this is an important time, as Mr. Kucinich 
actually mentioned in his comments, to remember that September 
11th began, launched from Afghanistan, Al-Qaeda that was 
sheltered by the Taliban regime, that this country was united 
in going after Al-Qaeda and demanding that the Taliban turn 
over Al-Qaeda, when they refused to do so, taking the 
appropriate military action.
    As we've all been seeing recently, there has been a 
resurgence of Taliban activity in southern Afghanistan, and 
they have been clearly testing the resolve of the NATO force 
and the U.S. forces. There are some of us who believe that this 
is not the right time, both in terms of actual manpower, but 
also symbolically, to be reducing the number of U.S. forces in 
Afghanistan, especially those in that southern region. We also 
found out recently that the administration has modified its 
original plan with respect to the size of the Afghan army. It 
was originally planned to be on the order of about a 70,000-man 
size army, they've recently reduced the funding associated with 
that for about a 50,000-man army, which has created 
considerable concern in Afghanistan, President Karzai and 
others. I don't know if you've had an opportunity to look at 
this as a Commission, but certainly if you haven't, I'd be 
interested in your personal views with respect to what we need 
to be doing now with respect to Afghanistan, both on the 
military side, but also a commitment in terms of the economic 
support aspects.
    I'll close with this because I'm interested in your 
responses--just remembering that the seeds of Al-Qaeda and the 
Taliban were really created when the Soviet Union left 
Afghanistan and the United States decided at that point in time 
no longer to really engage in Afghanistan. You then had a civil 
war there, the Taliban emerged, Al-Qaeda took advantage of what 
was clearly a failed state, and September 11th followed after 
that.
    So if you could please give us your assessment of what's 
happening now in Afghanistan and what more, if anything, we 
should be doing.
    Mr. Hamilton. Well, I know that you come by your interest 
in Afghanistan from a family angle, your mother having served--
I think in INR, was it--State Department in Afghanistan over a 
period of years, and I think Governor Kean and I very much 
appreciate your interest in it.
    We mean what we said in the report. We think there has to 
be a long-term commitment. You point out the history. In the 
nineties, I guess it was, when the Soviets withdrew, we 
withdrew. And I suppose most Americans thought that there was 
very few spots on the face of the Earth that we had less of an 
interest in than Afghanistan. But somebody else noticed our 
withdrawal, and that was Osama bin Ladin, and he goes into 
Afghanistan and he creates the mechanism and does the planning 
that has brought about September 11th.
    I would hope that Americans have learned from that, and 
that it will be necessary for us to have a long-term commitment 
to Afghanistan, and that means sufficient military power, 
whether it's the United States or NATO, to be able to secure 
that country. It means that we have to stop that country from 
falling under the control of the opium trade and of the 
warlords, and it means that we have to support President Karzai 
fully with political and economic support in that country. And 
I know that's costly, and not all Americans will agree with it, 
but I think it's a terribly important commitment that we have 
to follow through on. And if we do not, then I think we'll 
repeat the history of the early nineties.
    Governor Kean. We recognize in the Commission report that 
Afghanistan can be one of the most dangerous countries in the 
world. Just its location between Iran and the Soviet Union and 
Pakistan would make it vital if nothing else did. And then the 
fact there are still largely ungoverned areas, one of which 
well may harbor Osama bin Laden today. This is where the enemy 
still is, and we'd better darn well pay attention, because if 
we again allow Afghanistan to become a training camp for the 
Taliban and Al-Qaeda, if we avert our gaze because we're 
interested in other parts of the world, we're going to suffer 
the consequences.
    Afghanistan is an enormously important place. We should be 
not only dealing with military, by the way, but we should be 
dealing with economic aid, we should be dealing with 
educational aid. This is an area, this is a part of the world 
where we cannot afford again to have a lack of attention.
    Mr. Hamilton. Many of our recommendations are long term in 
the Commission report, and that was certainly true with regard 
to Chapter 12, which set out a policy really toward these 
countries that Governor Kean has talked about, Pakistan, 
Afghanistan, Saudi Arabia. And we've been pleased, really, that 
the Congress and sense of Congress resolutions have supported 
the concepts and ideas in our report. Likewise, we've been 
pleased that the administration has said many positive things 
with regard to those recommendations. The real key here, of 
course, is implementation and follow-through, not over a period 
of a few months or a year but over a period of a decade or 
more.
    Mr. Van Hollen. Well, that's right. And I'll close, Mr. 
Chairman, that the President took a trip not too long ago to 
India and Pakistan, stopped off in Afghanistan. And as you 
pointed out, Governor Kean, he probably is as close as he'll 
ever get to Osama bin Laden, who is suspected to be in Pakistan 
along that border area. And I do think it was a reminder that 
we have not completed the mission, that this is not mission 
accomplished, that we have a long way to go, and that the 
future success of the government of Afghanistan is a big part 
of that success.
    Thank you, Mr. Chairman.
    Mr. Shays. I thank the gentleman. Governor and Congressman, 
I am so grateful for the work that you all have done over a 
long period of time. I got carried away at one point in which I 
said the work of the Commission was sacred, but it comes damn 
close to that.
    This subcommittee had 22 hearings before September 11th, 
and we've had a total of now 90 on the terrorist threat, and 
what I'm struck by is before September 11th we had a gentleman 
who was a noted doctor of a major medical magazine, and he said 
to us his biggest threat was that a small group of dedicated 
scientists would create an altered biological agent that would 
wipe out humanity as we know it, and I looked around and there 
weren't many people. Now there are a good number of folks here 
today, but I'm just fearful that we kind of are going through 
this exercise, and there's something that has to ignite the 
public's will and ultimately the will of Congress and the White 
House.
    What rings in my ear is what you said, Governor Kean. You 
said what the people don't understand--or maybe you said that, 
Congressman Hamilton--and they don't understand it because, in 
my judgment, in the last Presidential debate we debated whether 
someone had earned three Purple Hearts or someone had fulfilled 
their national service. I believe if you tell the American 
people the truth, they'll have you do the right thing.
    I had the good fortune to go into Russia and see what we do 
to capture their weapons grade material and to see how we're 
helping them destroy their chemical stockpile, and also to see 
how poorly they secure their biological agents, literally a 
refrigerator and a string with wax on it so they know if 
someone's opened it up.
    So I think the potentials are huge for people to get 
weapons grade material, to get dirty radioactive material. A 
thousand lighthouses in Russia, all unmanned, powered by a 
power plant that is basically a radioactive battery, a nuclear-
powered battery. And so I just fear that when you say, Governor 
Kean, that you are fearful of the consequence of a nuclear 
attack, that we will have a nuclear attack, that's what I 
believe. And so what we're doing here in this grading is not 
just an exercise, it is hugely important.
    Having said how much I love what you've done, I'd like to 
ask, is there anything that should have been part of the 41 
recommendations that isn't? Something that you all debated or 
something now that you think, my God, how could we have 
overlooked it? Do you think it's a pretty complete list?
    Mr. Hamilton. Well, I think the answer is we've probably 
been so focused on trying to get the recommendations we put 
forward implemented that we haven't tried to think of 
additional recommendations. But many of our recommendations are 
very general, including the ones I mentioned with regard to 
Chapter 12. But even the recommendation with regard to the 
Privacy and Civil Liberties Oversight Board, for example, it's 
a very general recommendation and needs much more refinement 
and precision.
    Governor Kean. The recommendation is there, but again they 
were vague by necessity in the area of foreign policy, and 
changing our approach really to particularly these parts of the 
world so that we're not simply a fish swimming in a tank, we've 
thought of other ways. The change in the view of America in 
Indonesia after we gave the aid to the tsunami victims, and you 
saw the soldiers, the feeling about the United States changed 
dramatically. It's much cheaper than war. And I think we should 
look at other ways--many of which, by the way, we pursued 
toward the end of the cold war in Eastern Europe, with 
libraries and exchanges and all of that; use some of those 
approaches particularly in this part of the world who really 
don't know us very well and we don't know them very well.
    Mr. Shays. Well, you all have endorsed and spoken favorably 
of 5017. It's really not my bill or Congresswoman Maloney's 
bill, it's really a bill that was designed to help people you 
work with as well as people we work with to implement what you 
all have done, not what we have done. It would implement what 
hasn't been done, but it would also say to the various 
departments and agencies, OK, you were tasked with this, now 
how are you doing? And they would write a report. And if they 
haven't gotten an A grade, in essence, then--or at least a 
passing grade--and I don't mean C a passing grade, I mean 
getting it done--they would have to, every 30 days, come back 
and say how much closer they're getting to it.
    For both of you to come here and say, having given a grade 
way back when, that you really don't see anything that you 
would give a higher grade to is rather stunning. You say it in 
a rather calm way, but what I'm hearing you say is that most of 
these grades that you're giving out, you're not seeing much 
improvement, unless I'm wrong and there's one or two areas 
where you want to say we've seen an improvement here. That, to 
me, is stunning, because it just says to me that I'm back 
before September 11th, having 22 hearings, hearing people just 
say something and we're not making progress.
    So I would like to ask you, is there anything on this chart 
where the grade goes up? And I'm going to say that you are both 
so fair minded and so--I'm not going to say apolitical, but not 
political, that your comments are huge in the implication to 
me, at least.
    Governor Kean. Well, I would say one area, when we made the 
report, we did not have a Civil Liberties Board, now we have 
one, and I'll say the people that have been appointed reached 
out to me to ask my advice as to ways in which they could do 
their job better, and that was gratifying to me because we have 
not--this is not a government that reaches out that much, 
particularly to people who--I'm not in a sense in their role 
anymore, and I was appreciative for that. So I have high hopes 
with the oversight of this Congress that the Civil Liberties 
Board that's been appointed----
    Mr. Shays. I don't, so I'm going to come back----
    Mr. Hamilton. You take an issue like the radio spectrum we 
gave an F and a C, I think both there, the radio spectrum law 
has been passed, that's an improvement, but the date for the 
change is 2009. You can certainly improve upon that. So there 
has been improvement there for sure, but not enough.
    You're very close to making substantial improvements on the 
risk-based homeland security, if that law goes through--and it 
could go through in the balance of this session--then we would 
move an F to an A. So there are several areas like that where 
action is pending in the Congress right now where you could 
dramatically improve, in our judgment, performance with regard 
to the recommendations.
    Mr. Shays. I'm going to put it in my words. What I'm 
hearing you say, Congressman Hamilton, is that--it's hard to 
know what to call you, should I call you chairman of this, vice 
chairman of that?
    Mr. Hamilton. Everything that's been used so far is OK with 
me. I've heard a lot worse.
    Mr. Shays. What I hear you saying is, since nothing has 
come to fruition, they get the same grade, but there's stuff 
pretty much in process that change the grade noticeably.
    Mr. Hamilton. That's right.
    Mr. Shays. Governor, while I take issue, frankly, with your 
hopes of the Commission, if I heard my colleague, Mr. Kucinich, 
I kind of agree with him, I think it's a train wreck. Having 
good people is great, but good people without power is 
frustrating. It took too long to get established, not their 
fault; not funded enough by Congress, our fault. It has no 
subpoena power of any consequence. They have to go to the 
Attorney General to basically ask permission if the Attorney 
General doesn't want them to move forward. I don't see how they 
have the instruments in the various 16 agencies to be able to 
know what the heck's going on. So I'll be interested to have 
them tell me.
    But for me--and this is where Mr. Kucinich and I part 
company, but respectfully so, I happen to believe that the cold 
war strategy of containment, reaction and mutually assured 
destruction is now an absurdity, I happen to believe it has to 
be protect and prevent. I happen to believe that somebody is 
going to get weapons grade material. Now if we can prevent 20 
people from just getting it and just one, that's great, but we 
have to break into the cell. I happen to believe it is easy as 
can be to get radioactive material, and it astonishes me that 
someone hasn't combined radioactive material with a regular 
conventional weapon. I happen to believe that if suicide 
bombers worked in places like the Middle East, they got the 
leader of India way back when, it is destined to happen in 
Europe and then in the United States. We have to be able to 
detect. So that gets me to this vital point. Since I want to 
give more power to be able to detect, I want to give more power 
to make sure that the civil liberties are there. And you're 
going to have to explain to me, both of you, how you can 
succeed without subpoena power, how you can succeed when your 
appointment can be taken away by a President who appoints you 
and doesn't move forward.
    So maybe I'll do it in a more general way. Do you believe 
that it's essential to have subpoena power?
    Mr. Hamilton. Mr. Chairman, we really did not address that. 
I don't pretend to be an expert on that. It raises a lot of 
legal questions, I think, the executive branch subpoenaing 
itself, for example, and to what extent that can be done. We 
did not get into the legal questions of whether or not you 
should have subpoena power. All we said is that you should have 
robust power so that you can get the information you need. Now 
that can come about through cooperation. It may have to come 
about through subpoena power, I just don't know.
    Mr. Shays. Let me ask you this; were you part of the 
executive branch or were you part of the legislative branch? 
You were neither? Your Commission.
    Governor Kean. We were legislative branch. We were 
appointed by the congressional----
    Mr. Shays. And I realize I have a red light, but this is 
something I'd love just to have a sense of because you argue 
maybe it should be taken out of the executive branch. I mean, 
the issue, it seems to me, shouldn't be whether the process 
would allow the executive to subpoena the executive branch, it 
seems to me what we should be asking is, can they do their job 
without subpoena power? And it seems to me that this committee 
couldn't do it--and you raise a point, we're a separate branch. 
But you had subpoena power. Should it be a separate independent 
agency that by definition isn't under the thumb of the 
executive branch?
    Mr. Hamilton. Look, you now have a Civil Liberties Privacy 
Board. The challenge before us now is to make it work, OK, and 
that's what your attention and their attention ought to be 
focused on. If they go for a couple of years and we find out 
they're weak and ineffective and they're not getting the 
information they need, then you're going to have to go back to 
the drawing board and figure out a way to give them the power 
they need. But I think where you are today is you've got a 
board, let's go forward and see if we can make it work.
    Mr. Shays. Do you want to----
    Governor Kean. Yes, this was such an important part of our 
recommendations because we did everything else and we started 
to address some of the concerns that Congressman Kucinich was 
talking about earlier. We've got to have a balance if we're 
going to make government stronger, if we're going to make it 
more intrusive because we think to do so increases our 
security. Then we've got to be aware how that is encroaching on 
our liberties, and we figured we needed a very strong board 
based internally to do that. Now we used the word ``strong'' 
without defining it, and that's what you're getting into. If it 
needs subpoena power to be strong, then it ought to have 
subpoena power, but whatever you can do to make sure this board 
can work, to make sure it's strong, to make sure it will do its 
job, to make sure it alerts us when we're in danger of losing 
some of our civil liberties so we understand we're making some 
of these choices, that's what we're after.
    Mr. Shays. Let me ask the question this way and it would 
help me understand.
    I think the bottom line is, I'm sitting next to a gentleman 
that would put a great deal more weight on the civil liberties 
part of the equation, and I happen to be putting a great deal 
more weight on the detection part and the power that this 
administration or the next administration needs to be able to 
detect and prevent so we don't have to deal with consequence. 
But having taken that position, I feel an absolute obligation 
that we have a Civil Liberties Board that has tremendous power. 
In H.R. 5017 what we did is said Presidential appointment, 
Senate ratification, fixed term so you can't be replaced, 
subpoena power, and that you have a representative in each of 
the 16 different intelligence agencies, so that you're getting 
information, a full-time chairman as well. And is there 
anything conceptually that you would object to that in the 
bill? Is there anything that you would find of concern, Mr. 
Hamilton, and Mr. Kean, any----
    Mr. Hamilton. Look, what impresses me about this discussion 
is that we are asking this board to get all of the information 
they need to determine whether or not civil liberties have been 
violated or privacy has been intruded upon. And they are going 
to be asking for information from all kinds of agencies and 
departments that don't want to give it to them and will resist 
giving it to them.
    We confronted that in the 9/11 Commission. Tom and I spent 
hours and hours and hours negotiating to get access to 
information. We would request the information and it didn't 
come flowing to us in an avalanche the next day, it took us 6 
months, 7 or 8 months to get it. Now this board is going to 
confront that problem over and over again, and the question is 
going to be how tough is the Board in demanding the information 
and getting the information that they ask for? That's going to 
be their tough problem. Now they will have to analyze and you 
will have to analyze what powers they need and how those powers 
should be stated. I'm not enough of an expert to tell you.
    Mr. Shays. I'm going to just invite both of you to just 
have a closing comment after Mr. Kucinich just asks one 
question. I know you both need to get on your way and a place 
to go, and it is 4 p.m.
    Mr. Kucinich. I'll be brief. One of the things I think 
anyone who is in this room or anyone watching this will have 
come away with is the statements that we made today about how 
the No. 1 priority should be securing ourselves against a 
potential nuclear strike. I don't know of anyone who would 
disagree with that. In connection with that, Governor and 
Congressman, have you ever had any discussions about the merit 
of an international effort toward nuclear abolition? Governor.
    Governor Kean. I'm an old veteran of the freeze movement, 
so I had those discussions years ago. But the immediate problem 
that we saw work in the Commission--and we were enlightened a 
lot by Sam Nunn and his work--was 100 sites, many of them 
totally unsecured with rusty fences or with one person guarding 
them, and that we saw as the immediate problem. International 
agreements I would be very much for if we can achieve them, but 
they take time. And in the meantime, there are unguarded or 
little guarded sites that the terrorists know about and our 
borders that are not as secure as we want them to be, and not 
too hard to put these things together. And so we saw the 
immediate threat as trying to secure these sites to the best of 
our ability as fast as possible.
    Mr. Kucinich. Congressman.
    Mr. Hamilton. We did not discuss the abolition of nuclear 
weapons. I don't recall that the word ``abolition'' even came 
up at any time during our discussions.
    My reaction to your statement is that I think most experts 
now agree that we're on the cusp of a period of time in which 
you could see a very great proliferation of nuclear weapons. 
We've been very fortunate in the past 50 years that we've been 
able to constrain it as much as we had, but most of the experts 
I think recognize you're now in a very, very different climate 
and the proliferation of nuclear weapons is likely. Will that, 
just thinking out loud for a moment, bring back the demand of 
abolition of nuclear weapons? I wouldn't be surprised that 
would happen. If you come with me down to the Wilson Center and 
listen to the Third World countries--if I may still use that 
word--the developing countries, believe you me, they're 
interested in the abolition of nuclear weapons. The people who 
are not interested in it include ourselves in the United States 
and most of the powers that have nuclear weapons, and we have 
been unwilling to discuss it.
    Mr. Kucinich. I want to thank the gentlemen and just 
conclude by saying since we know that's a great threat, this 
might be the time for us to have a national discussion, an 
international discussion again about nuclear abolition. Thank 
you.
    Mr. Shays. I thank both gentlemen. Would either of you, 
Governor, or Congressman Hamilton, like to make a closing point 
before we get to the next panel?
    Mr. Hamilton. Mr. Chairman, we've been very appreciative of 
your personal interest in the work of the 9/11 Commission, your 
willingness to support our recommendations. We took note of our 
hearings that occurred before September 11th, which were very 
valuable, and the hearings that occurred since our report came 
out and your sponsorship of 5017, and we're grateful to that.
    Governor Kean. I would second all of that. You and the work 
of this subcommittee, as far as we're concerned, you have done 
as much as anyone in the Congress, you personally, as well as 
this committee, to try to make sure that our recommendations 
get adopted, and we hope therefore to have a safer country for 
us and for our children. We thank you and members of the 
committee very much.
    Mr. Shays. Well, the subcommittee thanks both of you and 
the members of the committee and all your staff. It's just been 
one of the bright spots in this country in the last few years. 
And thank you both for working so well with each other. Thank 
you very much.
    We're going to have a 1-minute recess, and then we'll start 
with our second panel, which will be Carol Dinkins, accompanied 
by Alan Charles Raul, Civil Liberties Board. We thank them for 
being here.
    [Recess.]
    Mr. Shays. This hearing is called to order. I want to thank 
you both for being here. I understand, Ms. Dinkins, you will be 
making a statement. Both will be responding to questions. Is 
that correct?
    Ms. Dinkins. Yes, that is correct, Mr. Chairman.
    Mr. Shays. I need to swear you both in and then we'll go 
from there.
    [Witnesses sworn.]
    Mr. Shays. Note for the record our witnesses have responded 
in the affirmative. Ms. Dinkins, you'll need to hit that button 
in the front there to just get it on, turn it on. I want to say 
to you, whatever feelings I have about the Commission in terms 
of power and so on don't reflect on either of you as newly 
appointed members. I know you are starting, of course, and it 
may be that you will be able to tell me that you have the 
capability to do what you need to do. So, you know, I just want 
to make sure that you know that you're both very welcome here.
    We appreciate you being here, and we just really want to 
learn what your task is and how you think you can go about 
getting it done. And then we'd like you to respond to the 
concerns that we have and so on. So, welcome.

  STATEMENT OF CAROL E. DINKINS, CHAIRMAN, PRIVACY AND CIVIL 
LIBERTIES OVERSIGHT BOARD, THE WHITE HOUSE, ACCOMPANIED BY ALAN 
   CHARLES RAUL, VICE CHAIRMAN, PRIVACY AND CIVIL LIBERTIES 
                OVERSIGHT BOARD, THE WHITE HOUSE

    Ms. Dinkins. Thank you, Mr. Chairman. Mr. Kucinich, we 
appreciate very much----
    Mr. Shays. Bring that mic a little closer.
    Ms. Dinkins. Do I have it on? I think it's on now.
    Mr. Shays. Yes.
    Ms. Dinkins. That sounds better, doesn't it?
    Mr. Shays. Yes.
    Ms. Dinkins. Thank you very much, Mr. Chairman. We very 
much appreciate the opportunity to testify on the 
organizational efforts of the Privacy and Civil Liberties 
Oversight Board. We are pleased to be here with you today.
    Since being administered our oaths of office on March 14th 
of this year, the five Board members have worked diligently to 
organize, hire staff, educate ourselves, and begin to exercise 
our statutory responsibilities. The Board does take these 
responsibilities very seriously, and we seek to convey this to 
you today.
    The scope of the Board's authority under the Intelligence 
Reform and Terrorism Prevention Act is obviously broad. 
Congress envisioned the Board being empowered to carry out its 
mission in two equally important ways. First, to advise 
policymakers on the development of the law, regulations and 
policy; and second, to conduct oversight by reviewing 
government actions after those laws, regulations, and policies 
are implemented.
    In exercising these authorities, the five members of the 
Board seek to operate largely by consensus. We have met with a 
number of organizations and individuals considered experts in 
privacy and civil liberties matters, both within the Federal 
Government and in the private and not-for-profit sectors. In 
these meetings, we have sought to gather the information 
necessary to begin prioritizing those issues most in need of 
our attention. We have made great progress in this regard. We 
have met with senior leadership of the American Civil Liberties 
Union, the Center for Democracy and Technology, and the former 
Clinton administration OMB Chief Counselor for Privacy, Peter 
Swire. We are scheduled to meet in the near future with senior 
officials of the American Conservative Union and the Markle 
Foundation, which has spent a great deal of time studying 
issues of privacy and civil liberties in the context of 
homeland security and the Information Age. Additional fact-
finding will take members of the Board to the National 
Counterterrorism Center and the National Security Agency within 
the next few weeks.
    Additionally, Vice Chairman Raul and I had a very helpful 
telephone conference last month with the chairman of the 9/11 
Commission, Governor Kean, to discuss with him the status of 
our efforts to stand this Board up. We deeply appreciate the 
Governor's support of this Board and its efforts.
    Within the Federal Government, we have met with many senior 
administration officials, including the then White House chief 
of staff, Andrew Card; with Stephen Hadley, assistant to the 
President for national security; Frances Townsend, assistant to 
the President for homeland security and counterterrorism; and 
Harriet Miers, counsel to the President. We have also met with 
John Negroponte, the Director of National Intelligence and with 
then Deputy Director, General Michael Hayden. And we have 
received guidance from the Department of Justice, Department of 
Homeland Security and the Office of Management and Budget.
    Our support staff has begun to build constitutional lines 
of communication and working relationships with the privacy and 
civil liberties officers in the executive branch, all of whom 
we expect to work with closely. All of these meetings have been 
immensely useful; and through them, we have been able to 
identify several areas of initial interest where we believe the 
Board can play the constructive role envisioned by Congress 
when it enacted the Intelligence Reform and Terrorism 
Prevention Act.
    The specific issue mandated by our enabling statute 
obligates the Board to assist the executive branch in the 
implementation of information sharing guidelines; and to that 
end, at our most recent Board meeting, we met with Ambassador 
Thomas McNamara, program manager at the Office of the Director 
of National Intelligence. Ambassador McNamara, as you know, has 
been selected and designated to oversee the implementation of 
the information sharing environment, including drafting 
appropriate guidelines.
    Beyond information sharing, the Board hopes to focus its 
energies on those issues of practical concern to the American 
public as the Federal Government protects the Nation from 
terrorism. The President has made clear that the war on 
terrorism must also respect the privacy rights and civil 
liberties of the American people. We will assist the executive 
branch in fulfilling this commitment.
    The Intelligence Reform and Terrorism Prevention Act gave 
the Board a broad mandate to review and provide advice to the 
President and to Federal agencies, and it contains specific 
provisions which help ensure that the Board will have access to 
the information that it needs to do its work. This will be done 
to the extent allowed by law and consistent with national 
security. The executive branch agencies, within those confines, 
are required to cooperate with the Board. Any disagreements 
between the Board and an agency head will be presented to the 
Attorney General for resolution.
    The Board has no authority to veto or to delay executive 
branch actions or to order specific remedial actions. The 
Board's legal authority derives primarily from the compelling 
power of persuasion, the ability to know what is going on, to 
develop informed assessments of whether privacy and civil 
liberties are being or have been appropriately considered, to 
make observations and provide comments, and to render advice to 
appropriate executive branch leadership, up to and including 
the President, when issues are identified. The Board's 
opportunity to report annually to Congress regarding its advice 
and oversight functions also provides a further vehicle for 
advancing the Board's mission.
    In creating the Board, Congress considered and declined to 
give it subpoena power. We agree with that determination of 
Congress. The Board has and expects to continue to enjoy the 
support of the White House staff and Department of Justice in 
obtaining the executive branch information it needs to carry 
out its responsibilities.
    With regard to interaction with the public in general, 
while the Board is not designed or equipped to handle 
individual case work, citizens with concerns they would like to 
report to the Board may do so through its Web site or e-mail 
address.
    Setting up any new institution takes time and energy. We 
are proud of how far we have come in the short time since our 
swearing-in less than 3 months ago. Personnel security 
clearances are in place. Our Executive Director, Mark Robbins, 
is building a professional and administrative support staff 
through the direct hires and detailees. We have a new suite of 
offices within the White House complex, half a block from the 
Eisenhower Executive Office Building, and that space includes 
secured space for classified matters. And our budget and 
resources are sufficient to pursue our mission.
    Most importantly, we are grateful that we have received 
tremendous support from all levels of the White House staff, 
the Executive Office of the President, and the Federal 
departments and agencies with whom we will continue to work.
    Congress conferred important responsibilities on this 
Board, and we look forward to working with Congress as we 
embark upon this important mission. Thank you again for having 
us. Vice Chairman Raul and I will be pleased to take your 
questions.
    [The prepared statement of Ms. Dinkins and Mr. Raul 
follows:]

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    Mr. Shays. Thank you both very much for being here. If I 
were starting out doing what you are required to do, I would 
like to be able to do it the same way all of you are doing it. 
I think it's essential that you develop relationships with the 
various folks that you've mentioned. So I congratulate you for 
doing that.
    I am just having a hard time understanding how the system 
actually works. For instance, maybe you could describe to me 
what you think your ultimate product needs to be. In other 
words, besides giving advice, what are you going to be able to 
do? And how do you--because I'm sure you've wrestled with this 
in your own minds. I could give you--for instance, let's just 
say the NSA is reporting doing some information gathering that 
strikes many people as conflicting with the law of our land; 
that it involves basically getting records of Americans outside 
the FISA Court.
    One, how would you even know about it? And, two, what 
powers would you have to deal with it?
    Ms. Dinkins. Mr. Chairman, you've----
    Mr. Shays. And I'm going to ask both of you to respond to 
every question that I ask.
    Ms. Dinkins. Thank you, Mr. Chairman. You have identified 
that the central function of this Board is to give its advice 
to the President and to the executive branch. And in fulfilling 
that mission, we intend to take a hard look to examine 
carefully the matters at hand and the matters that we believe 
should fall within the purview of the Board's responsibility. 
And we will do that both as the policies and programs are 
formulated, and then provide oversight as they are implemented.
    Mr. Shays. I'm going to ask you, Mr. Raul, to respond and 
then I'm going to come back to you, Ms. Dinkins, in response to 
your point, just to have you react to it.
    Ms. Dinkins. In terms of our work products, which our Board 
has given a great deal of thought to, obviously advice and even 
more importantly, perhaps, influence in terms of the products 
of other agencies with regard to the development of policies 
and implementation of policies and practices to fight the war 
against terrorism, it's our mission, I think, to continually 
review these matters, become informed, see what processes have 
already been undertaken by others who are focused on privacy 
and civil liberties, and to suggest where those processes are 
in our view sufficient, insufficient, could be improved, 
streamlined, or otherwise.
    One of the things that we've already learned is that it's a 
mistake to believe that the new Board, which I and all of us 
are on, to serve on, is the exclusive means by which privacy 
and civil liberties issues are considered and protected within 
the executive branch. That's not at all correct. There are many 
places in each department and agency where that's considered. 
But we have found that already, I believe, that we can make 
suggestions to improve the work products of other agencies and 
perhaps even bring personnel together who have related 
functions and help bring them together to improve the overall 
product.
    Mr. Shays. I like to be candid, but let me be as direct as 
I can possibly be. If you view your role as advisory and giving 
counsel, I see logic in some measure with how we've constructed 
the Board. I viewed it--and tell me if I'm wrong--that we 
wanted you to also be on the ground, aware of what was 
happening and say, ``Hello, don't think you can do that. 
There's a law that says this. You all are doing this. Stop 
it.''
    Now, I don't think you have the capability, one, to find 
out about it. And second, I'm not sure you have the capability 
to stop it. Because I asked Ms. Dinkins--a particular issue 
with NSA: Who would you have in NSA who would even tell you 
about it? Who would be working and answerable to your Board 
that would let you know that, by the way, we might be spying on 
American citizens, that's a borderline issue of whether it's 
legal or not. Who would be there for you? How would you know 
about it? And then, how would you be able to stop it?
    And I don't want you to--obviously, I'm not asking you to 
suggest that you have powers you don't have. I just want to 
know within the framework that we've given you how you would do 
that. And, frankly, do you even think that's your 
responsibility?
    So maybe I'll start with you, Mr. Raul. And then I'll come 
back to you, Ms. Dinkins.
    Mr. Raul. Well, Mr. Chairman, there are two models you've 
alluded to as I have been thinking during this informative 
hearing so far. There's kind of an arm's length adversarial 
model, which is one way of doing this Board; and the other, 
which would be a more cooperative influential Board within the 
process.
    I was struck by Congressman Hamilton, whose reference in 
his response to some of your questions spoke about giving the 
Board a chance to work and to focus on the cooperation that the 
Board can get from within the executive branch. The statute 
obviously chose, in my view, the cooperative internally 
influential model.
    So if that's correct, that it is the cooperative 
influential model rather than the arm's length adversarial one, 
then I would submit, Mr. Chairman, that the answer to your 
question of how we find out is really with the support, active 
support, of the many most senior officials in the 
administration that Chairman Dinkins referred to.
    While I certainly recognize comments that have been made 
regarding independence and where this Board is placed and is it 
in the executive branch or independent, there are benefits of 
being in the White House, located in the White House, and with 
the active support and cooperation of the White House.
    So the way we find out about these issues in principle 
would be through developing working relations with the National 
Security Adviser, the counsel to the President, and Director of 
National Intelligence and so on.
    Mr. Shays. OK. Before you respond, Ms. Dinkins, let me just 
kind of respond to what I think I'm hearing you say. I'm trying 
to--and I mean no disrespect to either gentleman, but I have 
not seen Secretary Rumsfeld be the kind of person that allows 
you to sit next to him and be an equal or, frankly, the Vice 
President. They're very extraordinarily intelligent, both of 
them, very strong willed. I don't see them having the mentality 
that says, hey, we're doing something in NSA which I'm aware of 
but I'm not sure the Board would like to know about--I mean, 
they may like to know about. I'm not sure I want the Board to 
know about it. If I let them know about it, then I've raised an 
issue I'd just as soon not even address. And frankly, this is 
so Top Secret, why even let them know in the first place?
    I mean, there's no logic that tells me that these two 
individuals would choose to have you even know about it, and if 
you did know about it, even want you to get involved. I think 
they would dismiss you so quick. That's my sense of it. Sort 
that out for me.
    Mr. Raul. Well, I think that it will be our mission to 
develop the kinds of relationships and to be perceived as 
providing the kind of value that would encourage the senior 
officials in the administration to share the information with 
us and to get, as Congressman Hamilton said, a second opinion, 
a second opinion on what's being considered and developed.
    Can we tell you here today that we will in the future have 
those relationships, having just started 3 months ago? It's 
hard to say. But there's everything about the crafting of the 
statute, about the support that we believe we've received to 
date from the administration, and from the White House in 
particular, that suggests we will get the support that we need 
from the agencies and departments, and the law would certainly 
require that.
    Mr. Shays. OK. Let me just pursue a little bit more. There 
have been more than one instance in the last few months of 
people being surprised by the activity of particularly the NSA, 
the administration general as it relates to civil liberties. Do 
you think, one, you have a right to say, what the heck's going 
on here? Do you think you have the right to go to the head of 
the NSA and say, I want to know, and I want to know as quickly 
as possible?
    Do you think that--I mean, it is--I mean, if they only told 
the top four people in the House and the top four people in the 
Senate, why are they going to tell you about it? I mean, I just 
don't know under what basis you're going to be able to exert 
that authority.
    Maybe, Ms. Dinkins, you can tell me. I mean, this is a 
real-life example. This is highly classified information. What 
makes them want the administration to say, OK, now that it's 
been public, we're just going to just--I mean, let's say now 
it's public, you're going to say we didn't know about it, and 
you want to find out about it. How's that system going to work?
    Ms. Dinkins. Mr. Chairman, let me go back to what Vice 
Chairman Raul said. In the statute, we are provided with the 
authority to seek information from executive branch agencies. 
And there's an exception in the statute, and that is if the 
Director of National Intelligence concludes that it should not 
be provided, if the Attorney General concludes for very 
specific reasons that it should not be provided to the Board, 
that is a statutory mechanism for us not to receive 
information.
    We expect that as we develop the areas that we will be 
addressing our attention to, that we will make various requests 
of agencies. And I'm speaking here generally. And to go to the 
specific point that you raised, we would expect that if we make 
those requests of agencies, that if they choose not to provide 
us information that we have sought, that they would go through 
the exception process that's laid out in the statute as it was 
established by Congress.
    Mr. Shays. Let me thank you for responding to my questions, 
and now turn it over to Mr. Kucinich.
    Mr. Kucinich. I thank the gentleman.
    Ms. Dinkins, can you name any example where the White House 
Privacy and Civil Liberties Board has objected to or at least 
raised concerns with a program initiated by the administration?
    Ms. Dinkins. Mr. Kucinich, we have not existed for very 
long, and being a new Board, we are developing not only the 
administrative matters I described--getting space and hiring 
staff--but we are also evaluating the areas where we believe we 
can provide advice and be of substantive support and assistance 
in the area of privacy and civil liberties. And as we move into 
that area, we will be getting into specific matters. It is 
premature yet to be at that point.
    Mr. Kucinich. Well, does the Board intend to review the 
administration's snooping into Americans' library records?
    Ms. Dinkins. The Board is considering and we have sought 
input, as I said earlier, from the American Civil Liberties 
Union and from others, as to what areas they believe the Board 
would be well advised to look into.
    Mr. Kucinich. Do you intend to review the administration's 
NSA shopping program?
    Ms. Dinkins. As I said in my testimony, we have recently 
received all of our clearances, and within the next few weeks 
we will be getting briefings at NSA and at the National 
Counterterrorism Center. And as we get those briefings and as 
we understand the processes, the procedures, the programs that 
are in place to protect privacy and civil liberties, that will 
enable us to develop what we believe is the agenda that is most 
immediate for this Board.
    Mr. Kucinich. Do you intend to review the administration's 
NSA domestic telephone record data-mining program?
    Ms. Dinkins. We will be looking at data-mining issues, and, 
as part of that, evaluate and then determine specific programs 
and policies we think the Board should take a look at.
    Mr. Kucinich. Do you intend to review the administration's 
Department of Defense talent program that uses domestic 
surveillance on peace groups?
    Ms. Dinkins. That is another area where we will evaluate 
the possible role of the Board in considering that program.
    Mr. Kucinich. Ms. Dinkins, would you permit the Board's own 
phones to be tapped if you knew it was in the interest of 
national security?
    Ms. Dinkins. I haven't thought about that question. I think 
there are probably a number of laws that would govern that.
    Mr. Kucinich. OK. One final question, Mr. Chairman. Ms. 
Dinkins, would you be able to provide the subcommittee copies 
of meeting transcripts or notations?
    Ms. Dinkins. We will consider that.
    Mr. Kucinich. Thank you very much.
    Mr. Shays. Just before the gentlelady goes--and she can 
have as much time as she wants--when you're asking--when you 
say you haven't thought of the security level, it would seem to 
me that you would have to have the highest security level, if 
I'm hearing this right, so that you could get into the areas 
which may in the end be the most evasive to civil liberties. I 
can't imagine that you would want to have anything less than 
the highest, and even if it ended up being that the chairman 
and vice chairman would have the very highest, I would think 
that would be essential. And I'm--I mean, maybe we can--in the 
part of dealing with--as you explain how you're sorting this 
out, it's so helpful it might be helpful for us to have 
continued dialog with our subcommittee because we've thought 
about this for 6 to 8 years, and we have opinions that may be 
helpful to all of you. You need the highest security level 
possible, otherwise you'll never even dent NSA.
    Mrs. Maloney, you have as much time as you'd like.
    Mrs. Maloney. Thank you. What is the status of the Privacy 
and Civil Liberties Board Oversight Board's hiring of staff? 
How many staff members will the Board have in total?
    Ms. Dinkins. We have an executive director and brought him 
on board at our very first meeting. And we have an 
administrative assistant. We are in the process of hiring a 
deputy executive director, general counsel, and then Congress 
provided us a very important opportunity for staff by providing 
that we would be able to have detailees from the various 
agencies and departments on a nonreimbursable basis. And so we 
have reached out and begun the process of bringing detailees 
into our work.
    Mrs. Maloney. So right now you have one staff member, the 
executive director; is that correct? And reaching out to how 
many detailees, 5, 10, 20?
    Ms. Dinkins. We also have an administrative assistant, and 
we are seeking to engage a deputy executive director, general 
counsel. And as to detailees, as we develop our agenda, then we 
will bring on board the detailees that we need to further our 
work.
    Mrs. Maloney. So as of today you have two employees.
    Ms. Dinkins. Yes, that's correct.
    Mrs. Maloney. And is the Privacy and Civil Liberties 
Oversight Board reviewing the following publicly reported 
matters that have been all over the papers? Just say yes or no. 
The NSA's reported domestic eavesdropping program?
    Ms. Dinkins. That is among the matters that the Board has 
considered and we will have a large number of items that we 
will consider what role it will have in our agenda.
    Mrs. Maloney. But right now the answer's no, correct? You 
have not requested any documents or interviews in connection 
with this publicly reported matter; is that correct?
    Ms. Dinkins. What the Board is doing, as I explained 
earlier, is meeting----
    Mrs. Maloney. I heard that. I heard that. I just wanted to 
know, have you requested any documents on this program? So far 
the answer's no, correct? So far the answer's no, you're still 
getting ready.
    Second, has the Privacy and Civil Liberties Oversight 
Board, have you looked at the NSA's reported domestic phone 
data collection program; have you requested any information, 
documents or interviews on that particular program?
    Ms. Dinkins. As I said earlier, we have just recently----
    Mrs. Maloney. OK. So that's a no.
    Ms. Dinkins [continuing]. Received our clearances, and we 
are going to be.
    Mrs. Maloney. By the way, is your clearance level a TS 
level or SCI level?
    Ms. Dinkins. SCI.
    Mrs. Maloney. SCI. OK, great. OK.
    Has the Board looked into the DOJ's reported data 
retentions request to Internet companies, again, publicly in 
the papers all the time?
    Mr. Raul. Mrs. Maloney, may I respond?
    Mrs. Maloney. Sure.
    Mr. Raul. One of the important attributes of our role as 
providing advice and retaining credibility to have influence, 
which was suggested in the earlier panel, and which I think is 
very important to us, really obligates us to preserve that 
ability by not prematurely getting into what the nature of the 
internal discussion is.
    We really do--I believe I can speak for the Board--take our 
role very seriously and want to ensure that privacy and civil 
liberties are appropriately considered in many of these topics 
that you've raised, and I think that it wouldn't be appropriate 
for us to say yes or no, we've provided advice, requested 
documents on them, when our ability to influence the executive 
branch really turns on our credibility, on our not prematurely 
getting into whether we, you know, think it's good or bad or 
what.
    So I would just suggest that if--with respect, if we could 
do what we can to maintain our power internally, our 
credibility and influence, by not touching on some of these 
very sensitive subjects before, you know, before appropriate.
    Mrs. Maloney. Well, this body, Congress, is practicing 
oversight, and I think it's a totally legitimate question when 
an oversight board has been created by the Executive and by the 
Congress, that we inquire what you're looking into. I don't 
think that the whole purpose of oversight is not to keep 
everything secret. We're not making a determination whether 
it's appropriate or not. I am reading reports in the press. 
There's a list of them that I'm concerned about. And I'm 
wondering if you've requested any documents, requested any 
interviews, if you've initiated any investigation or oversight.
    I feel that for me not to ask what my constituents are 
bringing to me as their top concerns would be, why have a 
hearing?
    Mr. Raul. Sure.
    Mrs. Maloney. So I think it's totally legitimate for me to 
ask. You can answer no, we don't think it's appropriate now, 
but at least answer.
    Mr. Raul. Mrs. Maloney, I didn't mean to suggest that the 
question isn't appropriate. I believe it entirely is, and the 
issues you've raised are certainly relevant issues. The 
question is, if we start discussing what requests we've made 
and what information we've received, then the people who--as it 
was said earlier by I believe both Governor Kean and 
Congressman Hamilton who--I mean this--the people that we need 
to talk to are appropriately very sensitive about all this 
information. And so it seems critical to the success of our 
job, our mission, if while the questions are all together, 
completely legitimate, it can nonetheless undermine our ability 
to play an influential role, which I think is the purpose of 
the statute.
    Mrs. Maloney. OK. Well, I'm not requesting you or asking 
you to judge the programs. I just want to know whether or not 
you care about it, whether or not you're taking steps to look 
into it. This is called oversight. My constituents call me and 
say, are you looking into this? And I think it's totally 
appropriate to ask whether you're looking into what has been 
publicly reported. But the questions I'm asking have absolutely 
nothing to do with secrecy. These are programs and activities 
that have been on the front page of all the major newspapers 
and regional papers in the entire country. I don't feel that--
--
    Mr. Shays. Would the gentlelady yield?
    Mrs. Maloney. Yes.
    Mr. Shays. We obviously know you have just started. You 
haven't gotten to this point where you're in full operation, 
but are you in a process now where you are starting to ask 
questions about particular programs? Just--or have you not even 
begun that process?
    Ms. Dinkins. Yes. Mr. Chairman, we are looking at a wide 
array of areas that we believe might be appropriate for the 
Board to focus on. And we will do that through a number of 
mechanisms, perhaps by having one of our Board members----
    Mr. Shays. Let me just make sure. You can respond to the 
other party. I don't want to take Mrs. Maloney's time right 
now, given she can use as much time as she wants. I just want 
to know, because I'm trying to set up a point in which we can 
figure out how we can get a response to questions without going 
too far. The bottom line: You have started operation, but 
you're in the beginning stages; is that correct?
    Ms. Dinkins. Yes, that's correct, Mr. Chairman.
    Mr. Shays. So it would be logical if there's something in 
the news that is of interest to the public, the press, to 
Congress, for you to say we're looking at it--if you are. If 
there are things that aren't in the news and you choose not to 
make them news, that's another issue. I think that Mrs. Maloney 
would understand because we want you to be able to pursue 
issues where you have concern.
    So I guess what I'm saying, it seems to me you can respond 
to Mrs. Maloney if she's asking are you looking at, for 
instance, the issues in the NSA that have been so public. I 
don't think--I think it would be shocking if you weren't, and I 
don't think it reveals much if you say yes. Probably reveals 
more if you say no. But do you understand?
    If we can figure out how we can have a meaningful dialog 
without pressing you too much on two issues, one, we know 
you're just getting started, and second, you'll be back. We'll 
have you back, and there will be an opportunity to get into 
greater depth. Do you have a sense of where I'm coming from?
    Ms. Dinkins. Mr. Chairman, we were trying to answer the 
question and what we're trying to say is because we are in the 
initial stages of getting the Board up and running and we do 
believe that we've made great progress in that regard, we are 
assembling an array of areas that have been expressed to us by 
those whom we have met both within the executive branch and 
outside, and we have made ourselves available to meet with 
Members of Congress and would welcome such meetings so that we 
can understand, as Congresswoman Maloney said, what her 
constituents are bringing to her attention that they're 
interested in. We welcome all of that input so that we can then 
evaluate where we think it would be best for us to spend our 
time and the resources of the Board. And we are not at a point 
yet, because we have just been taking in these suggestions and 
developing our own ideas about what we might pursue. We're not 
at a point where we can say, yes, we're looking at that, or no, 
we're not looking at that; because at this point, many things 
are on the table for us.
    Mr. Shays. I'm sorry. Thank you.
    Mrs. Maloney. It has been publicly reported extensively, 
DOD's reportedly increased role in domestic surveillance 
activities. Is this an area that you are considering looking 
into?
    Ms. Dinkins. We are certainly cognizant of the reports on 
those programs and those are things--that is the sort of thing 
that we have on our list of areas to consider.
    Mrs. Maloney. OK. And DOD's also reported data-mining 
activities. Is that on your list of things to possibly 
consider?
    Ms. Dinkins. Yes.
    Mrs. Maloney. It is? Good. And what information has the 
administration provided to you to date? Have you even requested 
any information from the administration to date? Have you 
requested any information, any documents, any reviews, any 
interviews, have you requested anything from the administration 
to date?
    Ms. Dinkins. Speaking in a general sense, as I have said 
earlier, we have had a substantial number of briefings, and we 
have requested information that will help us learn the areas 
that we might have an interest in studying, and we will 
continue to do that.
    Mrs. Maloney. Has the administration denied access to any 
information that any of its members have sought in connection 
with the activities--of the privacy over in Civil Liberties 
Oversight Board?
    Ms. Dinkins. As I said earlier, we have had a very great 
amount of support and assistance from the administration, and 
we have felt that we have been provided with a great deal of 
cooperation.
    Mrs. Maloney. So I assume the answer is no, that the 
administration has not denied you any access to any 
information. Have you requested information and they have 
denied to give it to you? That's my question.
    Ms. Dinkins. As I have said earlier, the way the statute is 
set up, it's very clear under what circumstances if we make a 
specific request, that information can be denied.
    Mrs. Maloney. So, has the administration invoked the 
legislative process not to provide information you have 
requested?
    Ms. Dinkins. We have not gotten to that stage where that 
would have been an issue.
    Mrs. Maloney. OK. So you have not been denied any 
information you've asked for, but you may not have asked for 
any information at this point. OK.
    Is there a process in place for the administration to seek 
review or consideration of new policies and procedures for the 
Privacy and Civil Liberties Oversight Board so that you could 
assess the potential impact on privacy and civil liberties 
prior to implementation? In other words, there have been some 
programs put in place that some of the American public has 
protested to it. Do they have a process to speak to you first 
about what they intend to do, to see whether or not there might 
be an objection because it violates privacy from your Board?
    Ms. Dinkins. We have established a Web site, and we welcome 
information, and if anything is brought to our attention, we 
will consider it; or if it's something that is about a specific 
matter that is not within our purview, then we would refer it 
to whatever we thought to be the appropriate entity to review 
it. We're not established as a Federal advisory committee, and 
we're not open--we're not subject to the open meetings 
requirements of Title 5.
    So if your question is whether we have a process for open 
meetings or for public hearings, no, that is not part of the 
statute that established us.
    Mrs. Maloney. The question was, was there a policy in place 
for the administration to seek review or consideration of new 
policies and procedures to the Board so that you can assess the 
potential impact on privacy and civil liberties prior to 
implementation? In other words, a preventive step or a review 
before taking policies that might be controversial?
    Mr. Raul. Mrs. Maloney, I'll just address that. We have 
established certain processes that are standard within the 
administration; namely, the OMB clearance process, the White 
House staff secretary process, and establishing both a Board 
level and staff level coordination within the White House with 
the relevant counsels.
    I think anyone would--that the most sensitive matters are 
not necessarily going to go through the OMB clearance process, 
although as former general counsel of OMB, sometimes I thought 
that everything should go through that. But as Chairman Dinkins 
indicated, our meetings with the individuals that she described 
in the testimony is intended as a basis to establish dialogs 
and relationships and systems and processes so that we can 
carry out the statutory mandate, which is to be in a position 
to continually review the development of these policies. So as 
a Board, we certainly intend to establish those processes. 
We've begun to do so in what I'll call the more standard White 
House clearance mechanisms, but we recognize that we do need to 
speak with other agencies that are relevant.
    Mrs. Maloney. Is there a process in place for government 
employees to approach the Privacy and Civil Liberties Oversight 
Board in confidence, to alert the Board of policies or 
practices that they believe unduly infringe upon the privacy 
and civil liberties of Americans?
    Ms. Dinkins. As I said in my testimony, our executive 
director is part of the community of these who are concerned 
with privacy and civil liberties throughout the government, and 
he is working with his counterparts in the various departments 
and agencies. We expect that by virtue of the Board being 
visible and being accessible through his work and the fact that 
our members are known and we have offices here in D.C., that 
those who might wish to contact us would have every opportunity 
to do so.
    Mrs. Maloney. And how will the Board, your Board, make its 
findings and conclusions and advice known to the 
administration? How often will you do so, and will you do it 
publicly?
    Ms. Dinkins. As Vice Chairman Raul said, we believe a big 
part of our effectiveness is that we are working within the 
executive branch, that we can bring to bear the suasion that I 
described in my testimony and that was recognized, we believe, 
by the 9/11 Commission, and that much of that will be done, and 
the opportunities to meet with people one on one, to meet with 
them in groups as we work through various issues.
    But we also under our statutory authorization are to 
provide an annual report to Congress, and so we expect that 
will be one of the mechanisms by which the members and the 
public will have the opportunity to see the work of the Board.
    Mrs. Maloney. Mr. Shays, some questions?
    Mr. Shays. No. I'd like to make sure that Mr. Van Hollen 
goes, and then we'll come back to you if you have some 
followup. Mr. Van Hollen, thank you for your patience.
    Mr. Van Hollen. Thank you, Mr. Chairman. And I also thank 
you, Mrs. Maloney, for all your leadership on these issues. And 
I understand and appreciate the fact that the Board is just 
beginning to get up and running, and there's a large amount of 
material to cover and catch up within a short amount of time. 
So I am interested, though, in how you perceive your authority, 
and how would you go about resolving potential issues that 
arise in terms of trying to get potential information from the 
administration?
    As the co-chairman and vice chairman of the 9/11 
Commission, Governor Kean and Congressman Hamilton, pointed out 
in their efforts on the 9/11 Commission, the fact that they had 
subpoena power was a very important tool. On at least three 
occasions they had to issue subpoenas to get material that they 
sought. They were able to resolve those cases amicably. But the 
fact they had subpoena power, in their opinions, allowed them 
to get a lot of other information that they didn't have to 
issue subpoenas for.
    So I guess the question is--and I know the statute sort of 
lays out a process by which you can request information and 
that the agency can then deny it; it gets reviewed by the 
Attorney General and others make a final determination. Yet, 
what recourse will you have if you go through that process? Do 
you think that there's information essential to your function 
as an oversight board and you're unable to get that 
information? This piggybacks a little bit on the questions Mrs. 
Maloney was asking you. That was something I assume you would 
be willing to come before Congress and testify about. Or is it 
not?
    Ms. Dinkins. We expect that as part of the executive 
branch, and certainly given the fact that we are located within 
the Executive Office of the President, that the executive 
branch departments and agencies will understand the important 
role of this Board and that they will cooperate with the Board 
as we seek information. We believe the process that's laid out 
in the statute is for those instances when the head of an 
agency and our Board simply cannot agree on whether we should 
receive information or not, and so there is the process for our 
Board to go to the Attorney General and ask that the 
information be provided us. We think that is a process that is 
clear. We think it is a process that is workable, and we expect 
that when we seek information, that--in virtually all 
instances, we will get it. And if we invoke the process laid 
out in the statute, it will be because there is a very real 
concern on the part of the head of an agency about providing it 
to this Board. We think the Attorney General is the right place 
for the ultimate decision to rest.
    Mr. Van Hollen. I understand the process. My question's a 
little different than that because I want to understand what 
you perceive the role of Congress to be. After all, this Board 
was a creation of the Congress. It was part of the statute 
passed by Congress, and we are going to be relying in many 
cases on the Board to fulfill the function of guaranteeing 
civil liberties, at the same time we provide for the security 
of the Nation, that you strike that correct balance.
    So my question is how forthcoming you're going to be with 
Members of Congress or how you perceive your responsibilities 
to Congress? If, for example, you go through this process and 
you don't obtain the information that you requested--and the 9/
11 Commission was stymied on several occasions--and you're in 
front of a committee hearing just like this, would you agree 
that it's part of your responsibility, if asked, at least to 
inform Congress when the administration has, through the 
process outlined in the statute, denied you information that 
you think is needed to conduct your responsibilities?
    Ms. Dinkins. Congressman, we haven't faced that situation 
because we haven't been in existence----
    Mr. Van Hollen. No, I understand that. I understand that. 
That's why I prefaced my comments by saying I understand you're 
just in startup mode. But I'm trying to understand how you 
envision your responsibilities and the oversight role of 
Congress with respect to your activities.
    Mr. Shays. Would the gentleman yield?
    Mr. Van Hollen. Yes.
    Mr. Shays. I think that's really an essential question. 
Maybe it's that you haven't had a chance to talk to your other 
members of the Board just to have them all have a buy-in. But 
I'd like to think if you didn't feel you were getting 
cooperation, that you would make sure that it was known; 
because if you're not getting cooperation, then you're not 
going to be able to do your job. We have a right to know if 
you're going to be able to do your job. And if you don't, then 
we have to appraise what needs to happen.
    It strikes me that's kind of logical. If you kind of 
wrestle with that comment, maybe you could explain to Mr. Van 
Hollen and me why you would be reluctant to be able to respond 
to that now, you know.
    Ms. Dinkins. Thank you, Mr. Chairman. And I understand, I 
think, what it is you're asking. I don't feel that we are yet 
in a position to really look down the road and anticipate how 
this might arise and in what context. And I think what would be 
best is for the vice chairman and I to take back to the other 
members of our Board the questions that you have raised and the 
concerns that you have expressed about your oversight function 
and about your ability to understand whether the Board feels 
that it is able to pursue its mission, and let us please 
contemplate that as the Board is moving forward and getting 
underway with its work. It's hard to anticipate the specifics 
that would put us in a place where that would be the next step, 
and I think that we need to understand that and work through it 
as we move into getting the important work of the Board done.
    Mr. Shays. I'm sorry. It's hard for me to contemplate, 
though, and you raised the question. You know, why don't you 
just respond----
    Mr. Van Hollen. No. No. I appreciate your jumping in on 
this, because I do think this is an important area, and I hope 
the Board will review it quickly because, again, I think that 
the statute's clear. There are certain steps you have to go 
through in terms of this information gathering process, but at 
the end of the day, if you're denied information that you think 
is essential to your function, and I--I believe you should 
approach Members of Congress. But at the very least, if you're 
asked a question at a hearing, it seems to me you have a 
responsibility to allow the Congress to know.
    Another thing that's going to come up down the road is not 
just whether you're getting cooperation with respect to 
documents you're seeking but with whether or not the 
recommendations you're making in terms of protecting civil 
liberties are being followed by the administration. I can 
assure you the chairman of this committee and other members of 
this committee are going to want to know, not the details 
classified--I mean, if that can be done in a classified forum--
but they're going to want to know if the Board that is 
established to provide oversight over civil liberties makes 
recommendations to the administration, if those recommendations 
are being ignored or not ignored.
    So if you haven't considered that issue as a Board, I 
encourage you to do so because I understand your view that this 
is somehow a creature within the executive branch. On the other 
hand, I believe it is very much your responsibility to the 
American people and Congress.
    Let me just ask this question. I asked Governor Kean and 
Congressman Hamilton, when they were testifying, whether or not 
the information that's come out with respect to domestic 
wiretapping would be something that you thought would be under 
your purview. The answer was yes from both. Whether you should 
seek documents and information on that, the answer was yes. And 
whether you should have a role in oversight there.
    Now, the fact of the matter is if the New York Times hadn't 
broken that story back in December, the American people would 
not have known about it. And the question is whether you, as a 
Board, would have known anything about it, No. 1.
    No. 2, if you had, whether you would have been able to get 
access to any of the information that they have denied to 
members of the Intelligence Committee, a majority of the 
members of the Intelligence Committee, and if you had made 
recommendations, whether they would have been heard. And it 
doesn't do the American people very good to have a Board that's 
supposed to be oversighted of civil liberties if you're denied 
that information or you make recommendations that say this is a 
breach of civil liberties and nobody ever knows, and we still 
have to rely on the New York Times rather than the Board.
    So I'm very interested in how you view your 
responsibilities with respect to congressional oversight and 
the extent to which you're going to vigorously pursue documents 
and information. You have a much more sanguine view of the 
degree of cooperation you may be getting. Maybe it's because 
this administration has essentially thumbed its nose at many 
congressional requests for information. I hope you're more 
fortunate. I don't think the track record is good, and that's 
why you are getting questions from a number of people as to 
what recourse, what recourse do you think you have if you are 
denied information beyond the provisions in the statute and 
whether or not you're willing to be public about it. So I hope 
you will consider those issues.
    And let me just end with a question I quoted with respect 
to recommendations. If you make a strongly felt recommendation 
that's ignored by the administration and you're before the 
Congress and you're asked whether or not you think the 
administration, any administration, is adequately protecting 
the civil liberties and you made a recommendation that has been 
ignored, are you going to feel free to divulge to Congress that 
your recommendations were ignored?
    Ms. Dinkins. As I said earlier, that's putting us in a 
place where we have not been and a place where we are not yet 
experienced with. And we are certainly mindful of the oversight 
role of Congress, and one of the things that we will be 
considering is what goes into the report to Congress when we 
provide that. And part of that will be as well what would be 
the level of detail about the work that we have done.
    And may we have a word from our vice chair?
    Mr. Raul. If I may, Mr. Van Hollen, add a general comment. 
I think it's important for us to convey the sense that we very 
much hold, which is, it is critical to the success of our 
mission of our Board's mandate to maintain good relations with 
Congress. I mean, we are here today at the invitation of this 
subcommittee. We wanted to appear and testify before you. We 
have reached out to Members of Congress and the Senate to make 
ourselves available to them to hear their thoughts. I think 
that Chairman Shays earlier said that this subcommittee has 
lots of experience and knowledge in these areas, and we're very 
well aware of that. We would like to benefit from that.
    I think you heard Chairman Hamilton, Governor--I'm sorry, 
Governor Kean say that we've reached out to him, we've reach 
out to the ACLU, to the Center for Democracy and Technology, 
we've been scheduling other meetings. And we really have tried 
to reach out to hear the suggestions, the comments, the 
criticisms as well from knowledgeable parties not--who may be 
coming from lots of different perspectives. We do intend for 
the work of the Board to proceed robustly, and part of that is 
having a good constructive dialog we hope with this committee 
and other congressional entities as well. So that's very much a 
part of the way we see our operation.
    Mr. Van Hollen. Well, I'm glad to hear that. We obviously 
don't know the end of the story. It's an evolving process.
    But I must just close by saying, Mr. Chairman, that I 
believe an essential part of our role here is reporting and 
keeping Congress informed of the extent to which you're 
successful in your own views of protecting civil liberties as 
we go about protecting the national security interests of the 
people of this country. And I can assure you that, in addition 
to the annual report, there are going to be congressional 
committees like this one--at least there's some in the House of 
Representatives who are interested in providing the necessary 
oversight. And beyond just an annual report, people are going 
to be asking you the kind of questions that we're asking today, 
and it will be at a point in time where it will not be 
premature in the sense that you haven't asked and been denied. 
And so I just ask of you to prepare for that because in order 
for us to have this productive relationship, I think that the 
Board's going to have to be forthcoming on these important 
issues. And I hope the next time we meet--you know in this area 
of civil liberties, the 9/11 Commission gave out two--there 
were three grades. Two of them were Ds. One of them was a D 
with respect to this Board. And I'm hoping, when they're 
invited back, they will raise your grade, and I guess the jury 
is still out on that question.
    Thank you, Mr. Chairman.
    Mr. Shays. Thank you.
    I know Mrs. Maloney has one or two more questions. I want 
to get to our third panel, and I look forward to their reaction 
to the first two panels.
    But what is coming across to me is obviously the fact that 
we have the adversary model, and we have the cooperative 
influential model, and given the structure of the committee, 
you're arguing that it's going to be a cooperative influential 
model. In other words, you're going to seek cooperation and try 
to influence in an advisory role to the White House. And I tend 
to believe, given the powers you have, that's probably the only 
way you could proceed. Even if in an adversary model, it's nice 
to find ways you can cooperate.
    But what I'm struck with is that all of us up here know 
that you're going to have a point in time where you need to get 
information, and you're not going to get it. You're just simply 
not going to get the information. And what will be curious is 
how you deal with it after you have done everything under the 
sun to get the information. You're not going to get the 
information. I mean, we have worked with the administration--I 
speak as a Republican. They have a view about this kind of 
stuff, and it's not one that seeks to facilitate. I think 
particularly of two strong personalities who are very involved 
in this, and that would be the Secretary of Defense, who has 
control over more of the intelligence than anyone else, and a 
Vice President who I think he appears to support the view of 
the Secretary of Defense. So there will be a point in time 
where you're going to have a head to head. And the question we 
have is, are you going to just sweep it under the carpet? Or, 
eventually, are you going to get the information? And if you 
don't get the information, are you going to make sure one way 
or the other that at least it's known that you didn't get the 
information and you weren't able to do the job? That's kind of 
where we're coming from. I'm not looking for an answer, but I'm 
just explaining to you that we've got some issues here.
    And the Attorney General basically can veto what you do. 
That's a fact. He can facilitate, or he can veto. He plays a 
huge role here. And it raises questions about what happens when 
he doesn't take your side and you don't get information that 
you need. Do we just walk away? And then how can we up here 
have confidence that the civil liberties of the American people 
are being protected? If I'm giving more power to this 
administration as a Member of Congress, I want to make sure 
there is more oversight and greater safeguards. And so it will 
be good to have you back when you have been there a little 
longer.
    And I will say, I believe there is only one Democratic 
member on the Board; is that correct?
    Ms. Dinkins. We have one Democrat, and we have as well a 
career military officer who's retired now.
    Mr. Shays. Does that mean he's not affiliated or is he a 
Republican member?
    Ms. Dinkins. I don't know.
    Mr. Shays. Well, it does matter. It does matter, because it 
does matter to me that there be--in the 9/11 Commission, there 
were six Republicans and six Democrats. I think if you were to 
have 12 Republicans, even if they came up with the same 
results, people wouldn't logically feel very comfortable, and I 
wouldn't blame them.
    Ms. Dinkins. Mr. Chairman, may I say just a word about the 
Board? It is intended, specified in the statute that it be an 
independent and experienced group of Board members. And the 
Board, as I have said, has met a number of times, and it's been 
very collegial. And it's been very enthusiastic about its 
mission and very committed to carrying out the function that 
was assigned it by Congress.
    Mr. Shays. Yes, I don't know how we have given you 
independence the way we set it up. I just don't know how we've 
made you independent. You're part of the White House; most are 
of one party; yet you have to use the cooperative model. The 
adversary model isn't in your powers. You don't have subpoena 
power, and just having subpoena power, frankly, we have 
threatened--in this subcommittee, as a Republican chairman in a 
Republican controlled Congress trying to get information from 
the White House, we have sometimes had to threaten use of 
subpoena power. If we didn't have that capability, we never 
would have gotten the information, never, ever. So, but, you 
know, it's just what we're going to wrestle with. But Mrs. 
Maloney, and then we'll get on to the next panel.
    Mrs. Maloney. Following up on the chairman's questioning, 
when you reach a point where they will not provide the 
information to you, will the Board request additional powers, 
additional authorities such as subpoena power? Would you 
publically request it if you could not get the information you 
needed to make a determination?
    Ms. Dinkins. Yes.
    Mrs. Maloney. You would?
    Ms. Dinkins. No, I did not say yes. I was going to say that 
we do not see that subpoena power would be a useful addition to 
the powers of the Board because the Board rests within the 
executive branch, and the executive branch doesn't subpoena 
itself. The executive branch is one of the three parts of the 
Federal Government, and so it is a different relationship than 
that between Congress and the executive branch. It would be 
incongruous for one part of the executive branch to subpoena 
each other. And we think that's recognized in how the statutory 
authorities are established and the processes that are 
established that we've already discussed.
    Mrs. Maloney. So you're testifying that you are not 
independent. You are part of the executive branch, and you 
would not be requesting--if you could not get information that 
you asked for, you're part of the administration and you would 
not push for it is basically what you are saying. Your title 
says Oversight Board, oversight.
    You have now two employees. Would you request additional 
funding so that maybe you could have a research assistant to 
help you look into some of these publically reported alleged 
violations of privacy?
    Ms. Dinkins. As I said earlier, we are in the process of 
hiring additional staff, and we are reaching out to bring 
detailees. We also are authorized to engage consultants on a 
contract basis. So we have a number of mechanisms to bring 
people on board to help this Board with its work.
    Mrs. Maloney. Have you engaged any consultants yet?
    Ms. Dinkins. We have not.
    Mrs. Maloney. And do you believe you have appropriate 
funding to carry your responsibilities for it?
    Ms. Dinkins. Yes, we do.
    Mrs. Maloney. How will the Privacy and Civil Liberties 
Oversight Board decide what issues or matters to prioritize for 
review? There are so many out there in front of us now, I just 
mentioned five that I would be looking into if I were in your 
position, but how are you going to prioritize the issues coming 
before you?
    Ms. Dinkins. The Board is actively reaching out to seek the 
input of those who work closely in the area of privacy and 
civil liberties. We are asking what they think the priorities 
of the Board might be and should be, and we are also asking the 
officials, who I set out in my testimony, what they think the 
Board can most effectively focus on and prioritize. And when 
the Board has taken in that information, then we will work hard 
to evaluate the various suggestions and set the priorities 
based on our own look at and examination of all the input that 
we have gotten.
    Mrs. Maloney. And how will the Board coordinate its 
activities with various departmental privacy officers and 
inspectors general?
    Ms. Dinkins. As I said earlier, we have assured that our 
executive director is part of the network, the Privacy and 
Civil Liberties Oversight Board officers, of whom there are a 
good number throughout the executive branch. That's a very 
important part of making sure that the Board accomplishes its 
work.
    Mrs. Maloney. I would like to ask unanimous consent to 
place into the record an article in the Miami Herald on civil 
liberties and on hopes for the Board. And incidentally, it 
endorses legislation that I've authored to strengthen the 
Board, and I'd ask permission to put this excellent viewpoint 
into the record. No objection?
    Mr. Shays. I'm sorry, without objection. I also want to at 
the same time ask unanimous consent that the following be made 
part of the record, the testimony of Mr. Frank Fetchet, father 
of Brad, who passed away at age 24 and would now be 29, and the 
husband of our witness here today, Mary Fetchet.
    [The information referred to follows:]
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    Mr. Shays. And a statement of Carie Lemack, a daughter of 
Judy Larocque and co-founder of Families of September 11th. And 
without objection, they'll be submitted as well.
    [The information referred to follows:]
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    Mr. Shays. Should we get to the next panel?
    Mrs. Maloney. Yes, we should.
    Mr. Shays. Before you leave, is there anything that we 
should have asked that you would have liked to be part of this 
record? Any comment that we should make, Mr. Raul, anything?
    Ms. Dinkins. Mr. Chairman, again, thank you for inviting 
us, and thank you for your interest in the work of the Board.
    Mr. Shays. Well, we are interested, and your testimony is 
helpful. We have some very big concerns, but we don't question 
the authenticity and the sincerity to which you both approach 
this job as well as the other Board members. And we'll look 
forward to continued dialog, and hopefully, we can be helpful.
    Ms. Dinkins. Thank you.
    Mr. Raul. Thank you, Mr. Chairman.
    Mr. Shays. We will now welcome Mrs. Mary Fetchet of New 
Canaan, CT. She is the mother of Brad, and we appreciate her 
being here.
    Mrs. Carol Ashley, the mother of Janice.
    Mr. Abraham Scott, the husband of Janice Marie Scott.
    Mr. Don Goodrich, father of Peter Goodrich.
    We thank all four of you for listening to the other panels. 
We would love a reaction--you might not sit down. I will swear 
you in before you sit down. We would love your reaction to the 
first two panels, and we look forward sincerely to your 
insights.
    Mr. Scott, we're going to swear you in. Let me say before 
swearing you in, it's a privilege to have all four of you here. 
Thank you for being here.
    [Witnesses sworn.]
    Mr. Van Hollen. Mr. Chairman, I just wanted to say briefly, 
again, what a privilege it is to have all of you. I have a 
previously scheduled meeting with our service academy nominees 
that I'm already late to. I'm going to try to get back, but I 
just wanted to apologize for having to leave. I'm going to do 
my very best to get back. I've got people waiting. And these 
are people who were accepted to our military academies around 
the country, but it's a privilege to be here with you. And 
again, I hope to return.
    Mr. Shays. Thank you, Mr. Van Hollen. Thank you for your 
participation today. And I think the families know you're 
concerned about this issue, and I'm sure they're very grateful.
    Let me say to you, I think you've all testified before. Mr. 
Goodrich as well?
    Mr. Goodrich. Never before.
    Mr. Shays. Well, let me just welcome all four of you. You 
are the driving force behind all the good that I think this 
Congress has done, and I realize that we have a ways to go, but 
you are all heroes in our eyes, absolute heroes. And we thank 
you for your patience.
    We wanted you to listen to what was said by the other 
government officials. Sometimes we have you testify first, but 
we wanted your reaction. We want to know what you think about 
what you heard, and we want you to feel comfortable to address 
this as long as you would like.
    And I'll just, obviously, say for the sake of it, I have a 
constituent among the four of you, Mrs. Fetchet is first among 
equals.
    Mrs. Fetchet.

STATEMENTS OF MARY FETCHET, NEW CANAAN, CT, MOTHER OF BRAD, AN 
 EMPLOYEE OF KEEFE, BRUYETTE AND WOODS IN TOWER 2 OF THE WORLD 
  TRADE CENTER; CAROL ASHLEY, ROCKVILLE CENTER, NY, MOTHER OF 
  JANICE ASHLEY, AN EMPLOYEE OF FRED ALGER MANAGEMENT IN THE 
WORLD TRADE CENTER; ABRAHAM SCOTT, SPRINGFIELD, VA, HUSBAND OF 
   JANICE MARIE SCOTT, AN EMPLOYEE OF THE PENTAGON; AND DON 
GOODRICH, BENNINGTON, VT, FATHER OF PETER GOODRICH OF BOSTON, A 
  PASSENGER ON UNITED FLIGHT 175 THAT CRASHED INTO THE WORLD 
                          TRADE CENTER

                   STATEMENT OF MARY FETCHET

    Mrs. Fetchet. Good afternoon, Mr. Chairman and members of 
this distinguished committee. It's an honor to appear here 
before you today and to provide testimony at this vitally 
important hearing.
    My name is Mary Fetchet. I'm founder and director of Voices 
of September 11th, a September 11th family advocacy group I 
founded after the death of my 24-year-old son, Brad. My husband 
Frank, who is unable to attend, is also submitting testimony. 
Thank you from both of us.
    My goal today is to advocate for something I feel strongly 
about, creating the proper balance between increased security 
in a post-September 11th environment and preserving our sacred 
civil liberties. I'm also here to ask for Congress's help in 
implementing the September 11th recommendations.
    September 11th was a defining moment in the history of our 
country that changed how we view the safety of our families and 
our Nation. Along with nearly 3,000 families, my family 
suffered a tragic loss, the loss of our 24-year-old son, Brad. 
I share this photograph of Brad with you.
    Since his death, I view my life in two chapters, before 
September 11th and after September 11th. Unfamiliar with the 
political system, I naively believed our government was 
performing its fundamental duty to protect its citizens. Like 
many Americans, my sense of security and my faith in our 
government's effectiveness was shattered on September 11th.
    My introduction to Washington began in July 2002, when I 
spoke at a rally to support legislation proposed to create a 9/
11 Commission. Over the next 3 years, I made many trips, too 
many to count, to Washington, along with a handful of family 
members. As victims' family members, we brought the human face 
and the voice of the victims to the terrorism public policy 
debate.
    Although we met many roadblocks on every level of 
government, through a bipartisan effort of like-minded Members 
of Congress, both Congressman Shays and Congresswoman Maloney, 
and also with the help of the 9/11 commissioners, we succeeded 
in passing the Intelligence Reform and Terrorism Prevention Act 
of 2004. But, tragically, nearly 2 years after the legislation 
was signed, these reforms have not been fully implemented, and 
over half of the recommendations have not been legislated.
    Government has a fundamental responsibility to protect its 
citizens, and there can be no debate that our government failed 
us on September 11th. Yet despite the ongoing threat of a more 
serious terrorist attack, nuclear, biological or chemical, the 
government is moving much too slowly.
    I feel strongly that the 9/11 Commission's final report set 
a comprehensive framework for long overdue sweeping government 
reform. The recommendations must be embraced in totality, not 
implemented in a piecemeal fashion. It is my opinion that 
currently we are handpicking some, but not all, of the 
recommendations which jeopardizes their effectiveness and 
creates an imbalance in the system. Clearly this situation has 
occurred with regard to balancing increased security and 
establishing a civil liberties board.
    The reauthorization of the PATRIOT Act and the expansion of 
wartime powers makes it easier for America's counter-terrorism 
services to gather intelligence, yet progress in creating a 
civil liberties board to supervise these powers has been 
painfully slow. With delays in a conformation process, limited 
funding and staff, the Board has been slow to meet and lacks 
the necessary independence and subpoena power to investigate 
potential civil liberties violations.
    Establishing a toothless board only creates an illusion 
that our civil liberties are being protected and perpetuates an 
environment of controversy and partisan debates among the 
misuse of powers. Recent news reports raise serious questions 
about violations that should be investigated. Without a robust, 
independent civil liberties board, there is little hope that 
these potential violations will be appropriately investigated. 
I believe the Civil Liberties Board should be empowered to 
protect against the violations of the fundamental principles of 
our democracy.
    I'd like to talk about a couple of other issues that are 
important to me on interoperability. On September 11th, over 
600 individuals I feel needlessly died in the south tower of 
the World Trade Center buildings, the second building hit by an 
airplane; my son Brad was one of them. The occupants of the 
building were ordered to remain in their offices, and 
individuals attempting to evacuate were sent back up.
    On September 11th, hundreds of lives could have been saved 
if the first responders were able to communicate accurate 
information to the occupants of the building. I was shocked not 
just a year ago to learn interoperability was identified as a 
problem in a GAO report of 1995, but Congress neglected to 
address the issue.
    Although progress has been made in setting a deadline to 
allocate additional radio spectrum, Congress must now 
realistically evaluate the moneys required to convert systems 
nationally and ensure an operating system is coordinated when 
the spectrum is available. I have to say, I agree with the 
commissioners, that 2009 is much too late, it needs to be moved 
up.
    Information sharing: The 9/11 Commission report concluded 
that key information was not shared between and amongst 
government agencies, allowing the September 11th plot to escape 
detection. The December 2004 intelligence legislation sought to 
remedy that failure by creating the position of a program 
manager. Recent government reviews have been highly critical of 
the state of information sharing, and have indicated that 
almost 5 years later the status has not greatly improved. We 
hear complaints from State and local authorities that have 
chosen to operate independently because they have not been 
included in receiving key information. For example, New York 
City, the NYPD created their own counter-terrorism intelligence 
capability and have established relationships with foreign 
countries. Without a coordinated effort to share information on 
the local, State and Federal level, we remain vulnerable today.
    I'd also like to mention, I believe that Homeland Security 
funding should be determined by risk and vulnerability. And I 
am just appalled to see what's happened in New York and 
Washington with the landmark buildings and the icons; we all 
know that these cities are very vulnerable today. And I stand 
next to you to support your effort in getting those funds back.
    Congressional reform: Congress has little choice to tackle 
oversight reform of the September 11th legislation if the 
legislation is to succeed. And I brought this organizational 
chart; it's from the 108th Congress. And even my son looked at 
this and said, how did they make a decision, and who's in 
charge? As you can see, most congressional committees have some 
jurisdiction over Homeland Security, making the current system 
prone to turf battles and inertia. Simply put, and through my 
husband's testimony with his business background, the current 
system is dangerously dysfunctional and undermines America's 
ability to prevent terrorist attacks, both at home and abroad.
    Streamlining the number of committees may be a long and 
painful process, I understand, here in Washington, but it is 
necessary to ensure proper oversight and accountability. 
Congress must reform itself to provide the focus and 
transparent oversight required by the American people.
    Afghanistan: Voices of September 11th facilitated a 
cultural exchange project with an organization sponsoring two 
schools in Afghanistan. We have been notified by the schools 
that they've had to close their doors recently due to direct 
threats to their students and a general state of 
unpredictability and unrest.
    Although Afghanistan has made great progress since the 
Taliban has been defeated, we are very concerned about the 
recent reports of anti-American riots and an increase in 
insurgents. We have a responsibility in a narrow window of time 
to help create an infrastructure and cultivate an ally in the 
war against terrorism.
    In addition, which was mentioned earlier, it is just 
shocking to me that, 5 years after September 11th, Osama bin 
Laden and his generals are still at large; and it seems to me 
that there's really no clear plan or sense of urgency to 
capture them. Has our government forgotten its responsibility 
to bring them to justice?
    Our country came together on September 11th with a unified 
promise that we will never forget. I am told that Congress 
stood on the steps of the Capitol building and vowed to work 
together. However, I am troubled by the partisanship, turf 
battles and the agenda of special interest groups that are 
preventing implementation of the 9/11 Commission 
recommendations. Our families have no alternative than to live 
with the constant reminder of the horrific nature of the death 
of our loved ones.
    My husband and I have been notified of bone fragments of 
our son Brad on five different occasions, and yet we only have 
a very small portion of his body. About half the people have 
never been notified, their loved one just disappeared on 
September 11th.
    I cannot begin to convey to you how difficult this is, 
after having suffered this horrific loss, to have to travel 
here to Washington as Carol and I have done over the last 5 
years to convince our government officials to make our country 
safer and to make it a priority. Words don't describe it. Yet 
we're here again today to act as your conscience and, once 
again, put a human face on the victims that lost loved ones on 
September 11th and to ask for your support in implementing the 
9/11 Commission recommendations.
    I'm speaking to the choir here today because I'm indebted 
to both Congressman Shays and Congresswoman Maloney, and 
certainly the commissioners that were here earlier today and 
will continue to stand beside you. Through Voices of September 
11th, I commit to provide ongoing support to those impacted by 
September 11th and to continue to advocate for the 
implementation of the 9/11 Commission reforms, but I challenge 
everyone on this subcommittee and I challenge Congress to make 
these recommendations a priority in the upcoming election 
debates and to educate your constituents about the sense of 
urgency. America needs your leadership and determination. The 
future of our families and the safety of our Nation ultimately 
rests in your hands. Thank you.
    [The prepared statement of Mrs. Fetchet follows:]

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    Mr. Shays. Mary Fetchet, Carol Maloney and I are indebted 
to you and Congress is indebted to you and the country is 
indebted to you; it goes the other way.
    Carol Ashley, thank you for being here. It's wonderful to 
have you here.

                   STATEMENT OF CAROL ASHLEY

    Mrs. Ashley. Thank you very much.
    When one thinks of defending freedom, it's usually in a 
military context, but freedom is also defended by our 
Constitution and the laws that uphold it. You, as Members of 
Congress, play a vital role in preserving America's freedom. 
Your legislative decisions and oversight determine the level of 
protection we have from both external and internal threats.
    My name is Carol Ashley. I appreciate having the 
opportunity to appear before this subcommittee. And I 
especially wish to thank Congressman Shays and Congresswoman 
Maloney for their dedication to working on our national 
security. And I appreciate also the other members of the 
subcommittee who participated in this hearing.
    National security became a priority for me on September 
11th when my 25-year-old daughter Janice died on the 93rd floor 
of Tower 1, murdered by terrorists. Since that terrible 
morning, the government's investigative agencies have been 
vigorous in attempting to thwart terrorism, and I strongly 
support their efforts. But I also believe that the rights and 
freedoms guaranteed by the Constitution must not be abridged in 
the name of security. The challenge is to maintain a balance 
between security and protecting our constitutional rights. That 
balance can be successfully achieved if these conditions are 
met. First, the data is collected, dispersed and discarded 
according to civilian and military law. And if our intelligence 
agencies need more than 72 hours to apply for a warrant, as 
required by the 1978 FISA law, then it is Congress's 
responsibility to adjust the timeframe or to write new laws to 
ensure that there are legal justifications for abrogating 
citizens' rights.
    The second condition would be that there is vigorous 
systematic oversight to ensure compliance and integrity of 
mission. Oversight is needed by three agencies, a strong 
independent Privacy and Civil Liberties Oversight Board by 
Congress and by the FISA court.
    We have seen many controversial programs as the government 
attempts to prevent further terrorism, that includes TIPs, TIA, 
the Jet Blue Data Mining Project, warrantless spying, AT&T's 
secret room for tracking Internet traffic. These things 
involved, among others, Social Security numbers, income, family 
members, vehicles, credit card information and others being 
merged without people's consent.
    When warrantless spying was first revealed, America was 
told it was only overseas calls that were being monitored, but 
we've learned now that millions of domestic call records have 
been acquired, although they say they're not being monitored. 
And reportedly, antiwar and environmental activists have also 
been under surveillance by the Pentagon and the FBI.
    The men and women in our law enforcement and security 
network who are working so hard to protect this Nation from 
terrorists should not be put in a position where they are asked 
to violate the constitutionally protected rights of Americans.
    The danger of these warrantless programs is the potential 
for abuse. America needs a mechanism answerable to Congress for 
assessing sensitive programs that involve surveillance of 
Americans. Such a mechanism is the Privacy and Civil Liberties 
Oversight Board, with the power and independence envisioned by 
the 9/11 Commission. And here I would like to comment on the 
previous testimony.
    First, I want to stress that this Board should be required 
to report back to Congress regularly. Second, its meeting with 
detailees, inspectors general and other privacy officers should 
be on a regular basis, and it should be formally required. 
Third, the Attorney General's ability to control the 
investigations of this oversight Board does not define an 
independent agency. And fourth, this Civil Liberties Board does 
need subpoena power, but it worries me that the Board believes 
that it does not, that the executive branch does not subpoena 
itself, so I'm not even sure they would use the subpoena power 
if they had it.
    In 2004, Congress failed. They need to correct the 
situation with the Privacy and Civil Liberties Oversight Board. 
As a result of the failure, America now has government entities 
which are able to block legitimate inquiry and over which there 
is no independent oversight. There must be accountability for 
the legality and efficacy of the work being done. To aid in 
accountability, Congress is urged to strengthen whistleblower 
protection for government workers, including those in the 
intelligence network, especially in light of the recent Supreme 
Court decision denying government whistleblower's at work first 
amendment protection. That means less government 
accountability. Unfortunately, congressional oversight is 
hamstrung because the top line of the intelligence budget has 
not been declassified. I strongly urge Congress to take steps 
to declassify the top line so that Congress can then reorganize 
itself so that it will have the jurisdiction over 
appropriations to control what is happening in our intelligence 
agencies.
    The PATRIOT Act expanded the power and surveillance options 
of the government and also reduced constraints, which leads to 
the potential for abuse. Congress tried to correct that by 
amending the PATRIOT Act when it was reauthorized, adding 
oversight provisions, which was a good thing. However, in a 
signing agreement, the President indicated that he is not 
obligated to obey that requirement. How can the President's 
signing an agreement which overrides a law established by the 
legislative branch be reconciled with the balance of power 
envisioned by our Founding Fathers? To safeguard our rights and 
prevent any one branch of government from exerting excessive 
power, Congress is urged to quickly and aggressively regain its 
authority in the balance of power. Secrecy is integral to 
programs that gather actual intelligence, but secrecy can be a 
tool to shield clandestine programs from inquiry and oversight. 
Denial of security clearance, stopping internal Justice 
Department probes into DOJ's approval of the NSA warrantless 
wire tapping program, and further, a former intelligence 
officer who had been with the NSA was advised that he could 
testify--he could appear before Congress, but he should not 
testify about SAP programs because neither the staff nor the 
Members of Congress whom he would appear before have the 
necessary security clearance. If no one except the NSA or the 
DIA can be read in, given clearance to investigate the 
surveillance programs, how can there ever be rigorous 
independent oversight of programs that spy on Americans? Secret 
domestic surveillance without legal boundaries, oversight or 
accountability is dangerous to a free society. No government 
agency or entity should have unfettered power to stop a 
legitimate independent investigation into the legality of its 
work. In the fight against terrorism, Americans must guard 
against incremental surrender of the freedoms which set us 
apart from repressive cultures.
    To protect our rights, surveillance inside our borders must 
be monitored to ensure compliance with the law. We depend on 
Congress to validate the legality, the mission and the 
integrity of our domestic surveillance programs. With your 
guidance, America can fulfill its national security obligations 
and simultaneously preserve the rights and freedoms that 
distinguish America. Thank you.
    [The prepared statement of Mrs. Ashley follows:]

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    Mr. Shays. Carol Ashley, thank you very much.
    We will now go to Abe Scott.
    Mr. Scott, thank you for being here. This is not the first 
time that you have testified.
    Mr. Scott. This is the first time.
    Mr. Shays. This is the first time. Well, it's long overdue, 
and it's wonderful to have you here.

                   STATEMENT OF ABRAHAM SCOTT

    Mr. Scott. Thank you.
    Before I begin, Mr. Chairman, I just want to say that while 
I want to verify that we do have 3 days to correct the record, 
I don't have stature as you on the committee have in terms of 
having a speech writer. I've made some mistakes in my 
testimony, written testimony, as well as I'm half blind and I 
can't hear out of one ear, but the fight goes on.
    Mr. Shays. You know what? Mr. Scott, I have heard you 
speak, and you are a very articulate man. I don't think you 
need to worry for a second about your testimony. It's very 
articulate, and it makes extraordinary points to this Congress. 
So you should be very proud of your contribution, and we are 
very grateful for your contribution, but welcome.
    Mr. Scott. Thank you.
    Good afternoon, Congressman Shays, Congresswoman Maloney. I 
feel deeply honored and proud that you invited me here this 
afternoon to testify before the House Subcommittee on National 
Security, Emerging Threats, and International Relations as a 
result of the loss of my loving wife, Janice Marie Scott, of 24 
years in the Pentagon on September 11, 2001.
    It truly saddened me, saddened my heart that this 
invitation had to be done under such grievous circumstances and 
not on a more positive and happier one. Nevertheless, I did not 
hesitate to accept your invitation because I was able, through 
divine intervention, to maintain some glimpse of hope whereby 
enabling me to go on with my life in spite of the trials and 
tribulations.
    I eventually made a commitment to my wife and two daughters 
after the tragic event that I would reaffirm my faith in the 
Lord and Savior, Jesus Christ, keep the memory alive of those 
2,971 beautiful individuals who were murdered at all three 
sites, especially my wife and those other beautiful individuals 
that were murdered in the Pentagon and on board American 
Airline flight 77. I would like to interject that there were a 
total of 125 in the Pentagon and 59 on board flight 77 for a 
total of 184. And finally, to actively involve myself with this 
magnificent government body called Congress to ensure that the 
right measures or steps are enacted into law to minimize the 
chance of a similar atrocity ever occurring again within the 
borders of the United States.
    I have been accomplishing the latter by being in attendance 
of many of those hearings facilitated by the 9/11 Commission, 
by participating in the congressional process which eventually 
led to the passage of Intelligence Reform and Terrorist 
Prevention Act by Congress and more recently by attending the 
September 11th trial of Mr. Zacharias Moussaoui.
    As I begin my testimony, I must first give thanks, as 
always, to the Almighty for this opportunity to sit in front of 
you this afternoon. And second, I pray that no one in this room 
or those who are viewing this or might view this session in the 
future misconstrues or misinterprets this testimony of mine as 
an attempt on my part to make a political statement such as the 
one made my Mr. Moussaoui at the end of his trial, for that is 
not my intention.
    One thing that was most pleasing and gratifying to me 
during my past September 11th life was having the opportunity 
to be present at the conference last year--or over a year--
where the 9/11 Commission gave the final report on their 41 
recommendations. As you know, this report included an 
assignment of Alpha grades as a measurement tool for evaluating 
the implementation status of the 41 recommendations.
    I was quite shocked, surprised and appalled to see that the 
most important recommendation to me had received such low 
grades. The title of this recommendation is civil liberties and 
executive powers. Even though I do believe these grades were 
fair and just ones, I consider them to be totally unacceptable 
because I unquestionably believe that those failures which 
generated this recommendation were the ultimate reason for the 
cause of those unjust tragic events on the morning of September 
11, 2001.
    Additionally, I consider the low grade given with respect 
to the Privacy and Civil Liberties Oversight Board as being a 
disgrace and totally a slap in the face for the hard work which 
was done by the 9/11 Commission.
    Based upon the low grades and importance of this 
recommendation, it is of my opinion that the Bush 
administration should have the Privacy and Civil Liberties 
Oversight Board high on its priority list in terms of bringing 
this organization fully functional as quickly as possible and 
providing it with the necessary power and support, as well as 
personal and funding resources, to allow it to effectively 
accomplish the assigned mission.
    On the other hand, I do believe achieving this end result 
would be a meaningless effort without the support of Congress 
to expedite the deliberation and approval process so that the 
necessary acts can be taken on implementing the other 9/11 
Commission recommendations.
    Mr. Shays. Mr. Scott, I want you to slow down just a speck, 
so don't feel you have to rush. You have as much time as you 
want. And this is very important testimony that you're sharing 
with us.
    Mr. Scott. Thank you.
    Mr. Shays. So you have a perspective that only you have, 
and we need to hear that perspective, so take your time.
    Mr. Scott. OK. Thank you.
    I have not yet heard or read that such step will be 
completed any time soon in the near future. I arrive at this 
conclusion due to several reasons. First, I sense that there is 
no urgency on the part of Congress to expeditiously arrive upon 
a mutually agreed upon plan to secure our borders, secure our 
support and to gain as well as to maintain accountability of 
noncitizens who are already in and are entering this country. 
These issues are near and dear to my heart, of which I think 
need to be acted upon sooner rather than later.
    I am the first to admit that one thing this tragic event 
did to me was change my mindset on the political process of 
this country. For example, my pre-September 11th strategy for 
voting was to vote strictly Democrat at all levels of 
government. I have since changed this mindset by making 
absolutely sure my vote is given regardless of party 
affiliation to the man or woman that I feel will not hesitate 
to make those tough decisions for the good of this country and 
the people, and not worry about the impact those decisions will 
have on his or her reelection campaign.
    Second, I know that our Congress, Congressmen and 
Congresswomen are being asked to tackle a number of very 
sensitive issues in reference to the implementation of these 
recommendations. I know this will not be an easy road for you 
as this country's lawmakers to navigate, but you and only you 
must take this journey and be prepared to compromise and make 
small as well as big sacrifices in order to reach bipartisan 
decisions on these recommendations. You must be prepared to do 
so with a clear heart and mind, even if the decision might not 
be in yours and/or the interest of some of your constituents 
but will benefit the efforts of restoring the faith of the 
American public as well as retain the value of our civil 
liberties. This, too, is the least you can do to pay the 
dividends on the return on our loved ones investing their lives 
on the morning of September 11, 2001, for the preservation of 
this great Nation.
    You as public leaders and lawmakers must take heed and set 
aside your differences and political agendas and start making 
decisions based on what I hope is placed in your heart by the 
supreme being to do the right thing for the good of the people 
who have and continue to give their all and all for the freedom 
of this great Nation. For I can assure you that this enemy 
called terrorism is not going to patiently wait around for you 
to try and resolve the various stalemates in Congress before 
striking again. You must remember that we are dealing with a 
very unique enemy. We are dealing with mentally unstable 
extreme fundamentalists of different nationalities who have 
declared a holy war to just kill Americans for no cause or 
justifiable reason.
    While some have compared the attacks by those terrorists on 
September 11, 2001, to the surprise attack on Pearl Harbor by 
the Japanese, we must always remind ourselves that we are not 
engaged in a conflict with a sovereign nation like Japan and 
the other Axis of Evil countries during World War II. This 
can't be defined as guerrilla-type warfare. I can only 
characterize this as being engaged in a ``hear no evil, see no 
evil'' type of warfare.
    Another comparison is that this Nation had the utmost and 
undivided support of its government, people and resources 
through the entire period of World War II that eventually 
brought about the demise of this powerful enemy comprised 
primarily of Germany, Italy and Japan.
    The events of September 11th also brought about a 
heightening of patriotism as it was clearly visible by the 
number of dwelling done with the American flag throughout this 
country. On the other hand, this Nation, from a personal 
viewpoint, is becoming with the passage of time more and more 
complacent, less patriotic, unfocused and not as united as it 
was right after the occurrence of the tragic event on the 
morning of September 11th.
    Finally, I honestly don't think a great many people in this 
country have no idea what civil liberty means. The dictionary 
defines it as a state of being subject only to law for the good 
of community and individual rights protected by the law from 
unjust government or other interference. Let's not forget that 
you and only you alone as the lawmaking body has earthly power 
in your heart, minds and hands to ensure the people's civil 
liberties of this great Nation.
    So as I come to the conclusion of my testimony, I would 
like to reflect, with your permission, back upon when I was a 
young African-American male growing up in a small little 
southern community and being educated in a segregated school 
system of Beaufort County of South Carolina. We would recite 
the Pledge of Allegiance and then sing My Country `Tis of Thee 
at the beginning of each class every morning. As we sang the 
lyrics, My Country `Tis of Thee, Sweet Land of Liberty, to the 
song, I can vividly remember that this song would always 
instill in me a sense of comfort and security. The events of 
September 11th have adversely affected my views in regard to 
the lyrics of this song. I am asking you, your help with 
reversing this negative effect upon me in regards to this song, 
restoring confidence in the American people in the civil 
liberties, and last but not least, reassuring the family 
members that their loved ones did not die in vain.
    I thank you. And may God bless each and every one of you on 
the House Subcommittee on National Security, and may God bless 
America. Thank you.
    [The prepared statement of Mr. Scott follows:]

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    Mr. Shays. Abraham Scott, may God bless you.
    At times like this, hearing just from our first three folks 
in this panel, I just consider it a privilege to hear what you 
have to say, and I just can't tell you how grateful I am that 
you all are here.
    Mr. Scott. And in conclusion, you will get a copy of this 
book, I will give it to your staff as well as Congresswoman 
Maloney will be getting a copy.
    Mr. Shays. Why don't you tell us what that book is?
    Mr. Scott. This book contains the bio and picture of all 
184 victims that perished at the Pentagon on September 11th, 
the 125 individuals at the Pentagon and 5 on flight 77. This 
book was authored by the Pentagon. Thank you.
    Mr. Shays. Thank you.
    Don Goodrich, thank you so much for being here. You're kind 
of the closer. We'll take few questions, and then we'll have a 
dialog among us. Thank you for being here, Mr. Goodrich.

                   STATEMENT OF DON GOODRICH

    Mr. Goodrich. Thank you for inviting me. You, Mr. Shays, 
and Mrs. Maloney have been great supporters of the families 
over the past nearly 5 years.
    I'm going to go way back in time in the beginnings of my 
remarks to some language of John Adams, and when I say way back 
in time, I'm going back to 1765. It was then that he said, ``Be 
it remembered that liberty must at all hazards be supported. We 
have a right to it, derived from our Maker. But if we have not, 
our fathers have earned and bought it for us at the expense of 
their ease, their estates, their pleasure and their blood. And 
liberty cannot be preserved without a general knowledge among 
the people who have a right from the frame of their nature to 
knowledge, as their great Creator who does nothing in vain, has 
given them understandings and a desire to know. But besides 
this, they have a right, an indisputable, unalienable, 
indefeasible, divine right to the most dreaded and envied kind 
of knowledge, I mean of the character and conduct of their 
rulers.''
    One hundred and fifty years or so later, George Russell, 
who was a distinguished literary man in Ireland in the early 
part of the First World War, wrote, ``We''--meaning the Irish 
people--``have to discover what is fundamental in Irish 
character, the affections, leanings, tendencies toward one or 
more of the eternal principles which have governed and inspired 
all great human effort, all great civilizations from the dawn 
of history.''
    In the past 3 years or so after the initial outpouring of 
understanding, cross-communication and commitment following 
September 11th, I've come to wonder about what we understand as 
the fundamental character of our American society. The first 
three Articles of our Constitution talk in terms of the 
American Government. In Marbury v. Madison, we established the 
notion that our Supreme Court would resolve essentially 
constitutional questions and issues of Federal law. In addition 
to those three branches of government, the first amendment gave 
the press strong powers to report on what happens in this 
country. And in the past 3 years, it's been my perception--and 
I'm just one guy coming from a little town in southwest 
Vermont--that balance of powers is in grave danger.
    The observations of the members of your subcommittee, about 
the disclosures in the New York Times are very troubling. I 
look to you to know those things. I don't want to wait for the 
New York Times to tell me those things. And if you can't get 
that information, and the judiciary has no role to play, as it 
appears it does not, we as citizens have no access to the kind 
of knowledge that allows us to make good decisions about how we 
vote, and what we say and what we advocate for.
    The Civil Liberties Oversight Board, about what we heard 
testimony today, is, in my mind, an undersight board. It would 
be like my giving my business manager the task of determining 
what clients I take at my law practice and which ones I don't 
take and how much I charge. In the end, I'm going to tell her 
what I'm going to do, and if she doesn't like it, that's too 
bad for her. So there's a semantical problem, a problem of 
semantics in the notion of an oversight board, if it isn't 
oversight at all, and I don't see that it is.
    These issues are of great importance not just from a 
historical perspective for me. My wife and I recently came back 
from Afghanistan and observed the struggle of that nation to 
build institutions, police, judicial, commercial, the whole 
panoply of institutions that make a stable society. And I'm 
very troubled, as was observed during these hearings, about the 
notion that the commitment to Afghanistan is soft and eroding. 
If that takes place, we're going to have another area of this 
globe that is susceptible to the breeding of more terrorists.
    I attended a conference in Edinburgh, Scotland, recently on 
terrorism. And a mathematician, Gordon Woo, who works for Risk 
Management Solutions, I believe is the name of the firm, is 
trying to use game theory to evaluate the risk of terrorists, 
and in that--in his presentation he used this illustration. The 
illustration shows 10,000 condoning terrorism, and above that 
are three groups of people that were identified by Abdullah 
Azzam in the 1980's, the highest group, the red, being the 
cream of the cream of the cream. Those are the ones who will 
give their lives for the jihad. The next group are an even 
smaller group, and they're the ones who flee the world of the 
civil life that we know and become warriors; and the third 
group, which consists of thousands who want an Islamic state. 
But what's important to me is the large group at the bottom of 
the pyramid. They're the ones who condone terrorism. They're 
the supporters of terrorism.
    The two most difficult images for me following September 
11th were watching my son's plane fly into the South Tower. The 
second most difficult was watching the cheering crowds across 
the globe as news of September 11th spread. It's those cheering 
crowds that we need to address, and we need to convince them 
that terrorism has no place in the civilized world, and we will 
not convince them of that if we have abandoned the essential 
character of our country. If we live in a country where there 
is such secrecy that the people on this panel, the people on 
the oversight board created by the legislation that we 
advocated for, cannot get information about what their 
government is doing, it reminds me a little bit of Osama bin 
Laden in the secrecy with which he conducts his operations.
    And I'm going to finish with a quote, one of my favorites, 
from George Russell. He said that it is eternally true that we 
are condemned to be as that we condemned. We all condemn 
terrorism, and we all condemn the secrecy and the tactics of 
violence toward civilians that occurred on September 11th. What 
we must be cautious about is that we do not acquire the 
characteristics of our enemy, and it's my belief that unless we 
have civil liberties oversight here in this country that 
demonstrates to the world that we do control the liberties we 
cherish, that the world will not believe us when we try to 
advocate for the democracy that we seek in other countries. 
Thank you.
    Mr. Shays. Thank you, Don Goodrich. I think your poetic way 
of starting off and ending was a nice way to end the testimony 
part of this panel.
    [The prepared statement of Mr. Goodrich follows:]

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    Mr. Shays. I'm going to give Mrs. Maloney the gavel for a 
second as well as the question while I'm just gone for a few 
minutes, and she'll start us off, and I will be right back.
    Mrs. Maloney [presiding]. Well, first of all, I just want 
to thank all of you not only for your really stirring testimony 
today, but for being such effective advocates for change. I 
truly do believe that the 9/11 Commission would not have been 
created without your support, that the funding and extension of 
time that they requested in their subpoena powers would not 
have been given without your support, and I truly believe that 
the passage--I know firsthand that the passage of the 
Intelligence Reform Act would not have happened without your 
constant vigilance and your constant work here in Congress and 
across the Nation to garner and build support. And I'm very, 
very proud to have had the opportunity to be part of your 
effort and to have worked with you, and I know that you will be 
with like-minded Members of Congress, those of us that are part 
of the 9/11 Commission Caucus, that you will be part of our 
efforts to pass the remaining recommendations.
    I'd just like to say that some in Congress believe that our 
work is done, that we have really completed a major goal with 
the passage of the Intelligence Reform Act, and I'd just like 
to hear from you in your opinion what is the best argument to 
rebuff that claim; and are you surprised--I'd just like to 
know--are you surprised that here it has been 5 years since 
September 11th, and 2 years since the release of the 9/11 
Commission Report, and are you still surprised that we have so 
much more to do with the Oversight and Civil Liberties Board 
and other areas, the radios, and, very importantly, the nuclear 
proliferation, that we haven't captured the ingredients that 
could be made into bombs that could kill and hurt other 
Americans? And I'd like to hear your comments on it. Are you 
surprised that we have still so much more to do?
    Mrs. Fetchet. Well, I think at every juncture--I know when 
the Commission was established, I thought, well, our job is 
gone. Now the Commission will be created and get up and going, 
and so here we are at another juncture.
    I guess my comment would be that I just--there was such--I 
think it was so important this Commission--I had such high 
hopes for them to be different than other commissions, because 
typically commissions are established, they do their work, make 
their recommendations, and they dissolve. This Commission stuck 
with it another year and put in the public policy, the PDP 
together, and I think that was very valuable to have that 
continued time to watch over things.
    I am shocked, you know, to see the report card 6 months ago 
and then to hear them say again today that not much has changed 
over the last 6 months. I recognize the challenge because it's 
sweeping government reforms, but I do think that it's a 
reluctance. As I mentioned, you know, I think there are people 
that, you know, are focused on other things. I think there are 
people with other agendas, turf battles and so forth, that are 
the roadblocks that we face today.
    I think that your proposing this additional legislation 
might be a vehicle to educate the general public and the media, 
you know, of where we stand today, and certainly we're going to 
need the general public involved in this process.
    Myself personally, I think that there is going to be 
another attack. I just think it's a matter of time, and there 
have been some measures that have improved, yet I think we've 
been lucky. And so I feel that we really have to focus, too, on 
preparedness, to prepare the general public, who are the real 
first responders, they're on the plane, in the building, on the 
train, and to educate them about preparing in their homes or 
communities.
    I think that locally they're, well, light years away from 
where we are on the Federal level. I know in Connecticut they 
took it upon themselves to raise their own money, to make their 
own command center, to reach out to 14 surrounding communities 
that weren't part of the TOPOFF program and, because we're in 
Fairfield County, part of the State activities.
    So, you know, my sense is that people are mobilizing 
themselves. NYPD is another example of that. They feel they 
can't rely on the Federal Government, and there's actually some 
value in that. But I do think we have a long way to go though.
    Mrs. Maloney. Much of the testimony today focused on the 
Privacy and Civil Liberties Oversight Board. I'd like to ask 
the panelists, were you surprised at the difficulties that we 
faced in getting answers from the Board? And were you surprised 
that on their report to Congress on what they're investigating, 
and what they've accomplished so far, and their interpretation 
of their responsibilities and powers? And I'd like to ask--I 
guess go to Mrs. Ashley, Mr. Scott, Mr. Goodrich.
    Mrs. Ashley. I'm not sure I can say I'm surprised, because 
I don't believe the Board is independent with the number--it's 
a disproportionate number of Republicans on the committee. The 
fact that the Attorney General can control whatever it is they 
investigate, I don't know. I think that much more needs to be 
done to strengthen this Board and to turn it around, to protect 
our liberties.
    I would like to respond just briefly to the first question 
you asked. I am appalled that we are in the position we're in 
right now, that changes have not been made. I think in part 
it's because there are other factors coming in here. We have 
political issues, turf protection; we have special interest 
groups, lobbyists; and yet there are 3,000 dead, and we have 
the recommendations to make us safe. And Congress and the 
President have not responded in the way that they should have. 
There's a complacency that's set in because we have not had 
another attack, and it's up to Congress and the press and, I 
suppose, still the family members to keep this in the public 
eye because we are not safe. Our ports are not safe. Our cargo 
is not safe. We have the nuclear threat really out there 
because it's accessible to terrorists, easily accessible to 
terrorists, and we're not taking the initiative that we need to 
combat that problem. So I just don't think the American public 
is as aware as they need to be, and the goal would be to try to 
enlighten them.
    Mrs. Maloney. Your testimony has, I'm sure, made many more 
people aware.
    Mr. Scott, would you like to comment?
    Mr. Scott. I can sum that up in three words: appalled, 
surprised and unfocused. Appalled for what hasn't happened to 
make this country safe.
    Unfocused, it is my opinion that we will not get anything 
done until we get a leadership in this country that is willing 
to support what we are doing. I'm not saying it can be 
Republican or Democratic, just as long as we get somebody in 
there that can get the job done.
    Surprised; yes, I was surprised this afternoon to hear 
what's going on in reference to the Board. I think that the 
administration is holding them hostage there on the White House 
grounds, I guess. And they can dictate what they do. As long as 
they are on that compound, you have no control over that Board. 
So something needs to be done.
    Mrs. Maloney. Thank you for your insights.
    Mr. Goodrich.
    Mr. Goodrich. Yes. I'm not the least bit surprised at the 
comments you received today, as Mr. Van Hollen wasn't here for 
my remarks. But if somebody were asking my business manager 
those questions, she would be just as circumspect as they were. 
I'm not the least bit surprised. It's not going to work. I 
think it's palliative at best. In fact, I think it's worse than 
that because I think there's an illusion that there's an 
oversight that does not exist, and therefore, it degrades, not 
enhances, the opportunities for civil liberties preservation in 
our country.
    With respect to the bigger question of the recommendations, 
the broader recommendations, of the 9/11 Commission that have 
not been adequately addressed and their mission fulfilled, you 
have an awful lot on your plate here in Washington. There are 
an awful lot of things going on. For us, the most important 
things are the loved ones we've lost, and I'm sure that the 
others agree with me that it's a terrible challenge for me to 
try to do justice to what my son would want me to do, but I 
cannot not do it. I have to be here, just as these others have 
to be here. And yet we're only four, and it's--the public is 
not going to wake up to this unless the people who control the 
agenda here in Washington--that's not us. It was us for months, 
and even once the 9/11 Commission came out, it was us. We'll 
never control the agenda in Washington again, and so it's going 
to be another group of victims that are going to be sitting in 
these chairs controlling the agenda, I hope later rather than 
sooner, unless you do.
    And I'm not criticizing you, I'm applauding you. But by 
you, I mean the people here in Washington. We talk about a war 
on terrorism, which I think, as I said earlier, a tautology, 
it's a meaningless, amorphous and wastebasket term that 
provides a guise for all kinds of behaviors that have nothing 
to do with capturing and killing terrorists. We're not going 
to--we need to repudiate terrorism. We need to marginalize it. 
We need to demonstrate that it has no place in the civilized 
world, and we do that by our behaviors. We do that by the way 
we treat our own citizens and the way we treat citizens around 
the world. We do it by the way we spend our enormous resources 
in this country for attacking the poverty, the loss of hope, 
the absence of institutional infrastructures in failed states, 
in Third World countries.
    Those are where we need--that's the agenda, so far as I'm 
concerned, that needs to be in the forefront, and it's not. But 
I can't change that, and I don't know who can.
    Mrs. Maloney. I want to thank all of you for your 
commitment and your moving testimony and being here today.
    Mrs. Fetchet. I wonder if I can make a couple more 
comments. After hearing the panel on the Civil Liberties Board, 
I found myself much more skeptical. I think they see themselves 
as an advisory board, not an oversight board, and given the 
personalities involved, there is no way that they're looking 
for advice.
    So I guess, I don't even know how to address it. Do you 
address it through legislation? Because I know just our 
personal experience, people don't want advice; they want to do 
what they want to do. And so, you know, I think they see their 
role much differently. It certainly was intended. So that would 
be my comment on the Board.
    And I guess to Don's point about, you know, there's going 
to be other victims sitting here, you know, I feel so strongly 
that it's going to be a major attack next time, and it is going 
to be 500,000 people, not 3,000 people. And I know in 
conversations with Congressman Shays, he was concerned about 
these things before September 11th, and he--no one was 
listening, and, you know--and so I think people escaped here in 
Washington accountability because it's a bureaucracy. And I 
know our first experience in going to offices, they had a 
narrow view of the world. It was who their constituents are and 
what committee they sat on, so it wasn't them, and we were 
pointed in a million different directions. But my sense is the 
next time that people are going to be held accountable here in 
Washington for not doing the right thing.
    Mrs. Maloney. Thank you. Thank you for your warning, 
really. Always it's an inspiration to me. Every time I hear you 
speak and I'm around you, I'm always more dedicated to working 
harder on passing these reforms. Thank you.
    Mr. Shays. Let me again thank all of you for being here.
    What I would like to do, it may seem a little redundant, 
but I want to ask the question this way: What was the most 
surprising--you have some choice here. What was the most 
surprising thing you heard from the first panel or the second 
panel? What was the statements that were made in either the 
first or second panel that made you feel the most emotional or 
you reacted to?
    I just want a sense of really your view of the first two 
panels. You've answered to some degree, and so you can briefly 
touch on it without giving a lot of detail. But if there's 
something else--I'll give you an example. Actually, I found 
myself thinking, well, we gave this--I'm talking about the 
second panel. We established a Commission without a lot of 
clout, and so they were being realistic in basically saying 
that it needed to be a cooperative model. It became almost 
clearer to me how they could function. I'm not saying function 
well, but they viewed themselves more as an advisory--well, I 
thought, well, that's logical, given how we've done it, given 
how they were appointed, given that their term is dependent on 
the person making the appointment. And I could imagine in my 
own mind that with that attitude, there would probably be some 
in the White House who would say, you know, this is great to 
have you here, and we'll seek out your advice and listen to it, 
but in the end, when it comes to the big issues, I thought 
they're not going to get to first base.
    Ms. Ashley. Right.
    Mr. Shays. So that was my reaction.
    But tell me, you know, what struck you the most positive 
and the most negative? You can describe it in those terms, but 
something striking about these comments. I'll start with you, 
Mr. Goodrich, and we'll--no. I'll start with you, Mrs. Ashley.
    Mrs. Ashley. No. That's OK. He can go first.
    Mr. Shays. You can go first.
    Mrs. Ashley. To tell you the truth, I envisioned the 
Privacy and Civil Liberties Oversight Board as differently than 
it was portrayed today.
    Mr. Shays. Right.
    Mrs. Ashley. I believed that they would have more power. I 
was surprised of their view of their mission, where they were 
an advisory board. I was a little concerned that they didn't 
really have an answer when it was asked what they would do if 
someone refused to give them the information that they needed, 
where they said, well, if they refuse, it's like they had a 
right to, because the DNI can refuse or the Attorney General 
can refuse. But this, to me, is not oversight then if somebody 
can refuse to give information that they're looking for because 
it's been a complaint.
    And also, I was just wondering, I don't understand how the 
Civil Liberties Oversight Board would work. Are they just going 
to respond to complaints, or are they actually going to just 
have an overview--when I read the Commission's charge, what 
they wanted the Board to do, it was to look across the 
government to see that our rights were being protected, and I 
had more of a global view of what their mission might be.
    Mr. Shays. You mean afterwards or before?
    Mrs. Ashley. Before any complaints are made, just for them 
to take a look.
    Mr. Shays. I want to understand. You said you had a global 
view.
    Mrs. Ashley. When I read the Commission's statement on the 
Board that would--in the report they talk about a Board that's 
established within the executive branch to oversee the 
government, and my interpretation was that it would be like a 
global overview of what our government was doing, especially in 
terms of the clandestine surveillance areas. So I was very 
surprised that their focus really wasn't globally, it was more 
like in response to complaints. And maybe that's the way it was 
intended; I just interpreted it differently.
    Mr. Shays. OK. Let me go to you, Mr. Goodrich, and then to 
you, Mrs. Fetchet, and then to you, Mr. Scott.
    Mr. Goodrich.
    Mr. Goodrich. I wasn't surprised at all. My emotional 
response was disappointment. My lack of surprise I think I've 
already articulated.
    Mr. Shays. You have.
    Mr. Goodrich. It's just obvious they're not in a position 
to force outcomes, and if there's no one there to force an 
outcome or make a clear disclosure that they failed to force 
the outcome so that the press then--and you and the press and 
the public generally is aware that there was an effort to force 
an outcome that was thwarted. Nothing will come of it.
    Mr. Shays. Mrs. Fetchet.
    Mrs. Fetchet. I think I spoke of it already. It was with 
regard to the Board. I was surprised, I'd have to say, to hear 
the Commissioners say that we haven't got much further than 6 
months ago, because I was hoping that we would have progressed 
a bit.
    Mr. Shays. You mention the Commissioners. I will tell you 
what I was surprised at. I was surprised that they were as 
comfortable with the Commission and appeared to be so 
supportive of what the mission has done to date. That did 
surprise me.
    Mrs. Fetchet. You mean with regard to the Board, the Civil 
Liberties Board?
    Mr. Shays. Both the chairman and vice chairman of the 9/11 
Commission, I think, spoke rather favorably of the outreach of 
the committee. I mean, they were really magnifying the good and 
not coming to the same conclusions we came to.
    Mrs. Fetchet. They didn't hear their testimony.
    Mr. Shays. Exactly.
    Mrs. Maloney. I think they'd have a different opinion. I 
think they'd agree with Mr. Scott that it's an undersight board 
at this point.
    Mr. Shays. Thank you. Anything else before I go to Mr. 
Scott?
    Mr. Scott.
    Mr. Scott. From a positive aspect, I felt like they were 
making great progress in terms of bringing the Board--in terms 
of getting it staffed. They didn't mention--at least I didn't 
hear--about funding, but apparently they're being funded, and 
they're moving not fast, but slowly. On the other hand, I was 
shocked to hear them talk about--well, not talking about 
nothing, because, in my opinion, they don't have any power, 
none whatsoever.
    Mr. Shays. Yes.
    Mr. Scott. It's just like it's to me, that's just like 
having what comes on the news, pork barrel, you just throwing 
in funding at a nonessential entity.
    Mr. Shays. Yes. Just responding to you, and then I'll go to 
Mr. Van Hollen. I was prepared to argue with the Commission 
that I expected them to claim they had the authority to be 
aggressive and so on. So I was then prepared to ask them, well, 
show me where. And they took, I thought, a more realistic tack. 
They basically said, it's going to be through, you know, 
persuasion and cooperation and so on. So it was--I was 
surprised they went in that direction, but it's a more 
realistic one in that sense, but obviously disappointed to hear 
them, in my judgment, acknowledge what I think is quite 
evident. So the one thing they got from me was I thought they 
were being very up front and very honest with us, but naive.
    Mr. Scott. The other thing I was surprised was that the 
person in charge of the Board didn't come to the hearing.
    Mr. Shays. We had the chairman and the vice chairman. What 
we didn't have was the executive director, and--you know, 
testifying. So I think we had the two people that we should 
have had there.
    Mr. Van Hollen, thank you for coming back. I knew you 
would.
    Mr. Van Hollen. Thank you, Mr. Chairman, and I'm very 
pleased to have the opportunity to rejoin you, and thank you 
all for your testimony.
    I have had the opportunity to review some of the written 
testimony. I'm struck by the fact that all of you who really 
lost more than anybody else on September 11th, you and the 
other families who had loved ones who were killed, understand 
that in addition to wanting to prevent future September 11ths, 
we want to do so in a way that preserves what makes this 
country special, and an important part of that is 
accountability, holding your government accountable both for 
providing adequate protection and also for preventing 
unwarranted intrusions on civil liberty.
    And the 9/11 Commission was part of holding this government 
accountable, and I'm struck in remembering that if it hadn't 
been for the September 11th families, we wouldn't have had a 9/
11 Commission. We wouldn't have had the report. We wouldn't 
have had the subsequent report cards. We wouldn't be here today 
talking about progress under the 9/11 Commission Report and 
fulfilling those recommendations.
    And that accountability is essential, and a part of that 
accountability was, of course, creating the Civil Liberties 
Board, and as I listen to your testimony, read your testimony 
here, we're struck by the fact that the reason the 9/11 
Commission was successful was they were given that degree of 
independence and that ability to issue subpoenas, and I--Mr. 
Goodrich, I was struck by your comment just a few minutes ago 
about the fact that in some ways, if you create a Commission 
and a Board that is not equipped to do its job, you do provide 
us all with a false sense of security that someone is there 
minding the store and protecting our civil liberties, where, if 
they don't have the power to do it, and we think they're all 
out there doing it, that is probably the worst of all worlds.
    You say we might as well get rid of them. Well, we should 
really strengthen their powers, and I think you agree with 
that. But if we don't, you're right. I think we're creating a 
situation of a false sense of security.
    But I just want to thank all of you for being here today, 
and I think the other point you raised, Mr. Goodrich as well as 
others, that there is a danger as time goes on that people 
begin to forget the lessons and not pay attention to the 
recommendations of the 9/11 Commission. After all, they've now 
issued their final report card.
    I was pleased to have them back here today. It's great that 
the chairman held this hearing, but we are going to continue, I 
hope, to rely on you as well as Congress, which has not, for 
the most part, done its job, to start doing a much better job 
of that oversight because that is a critical piece of this 
effort. So I just--I thank you for your comments and your 
testimony and all that you've done, and for the sacrifices that 
you've all made for our country.
    Mr. Scott. Thank you. And I also look forward to working 
with you in the future.
    Mr. Shays. Let me just say on behalf of the full committee, 
first let me ask, is there anything that we need to put on the 
record that hasn't been discussed that you would feel badly if 
you left not having put on the record? Is there any last point? 
Yes, Mr. Goodrich?
    Mr. Goodrich. Actually, there is. And I won't spend any 
time on this except to say that I've been very much involved in 
terrorism risk insurance, and I have the firm conviction that 
without a risk transfer mechanism, namely insurance, to provide 
a vehicle for remedies for those who suffer harm in a terrorist 
event, two things happen. Those who suffer the harm have no 
effective remedy, or the remedy comes ad hoc after the fact, 
which I think is a poor policy for running our affairs. And the 
more important part of it is that with the risk transfer 
mechanism of insurance----
    Mr. Shays. You know what, you're speaking a little in 
tongues. I understand a good deal of what you're saying----
    Mr. Goodrich. Let me try to thin it out.
    Mr. Shays. Without being as poetic, just get to the point 
here.
    Mr. Goodrich. The point is if you pay premiums based upon 
risk and vulnerability for insurance to protect your property 
and protect you against liability, you're going to want to 
reduce those premiums. And by reducing those premiums, to 
reduce those premiums, you do risk-avoidance activities. So 
there's a terrific benefit, very broad, broad basis, across our 
entire commercial sector in having an insurance vehicle that is 
required for terrorist acts, that is rated according to the 
magnitude of the risk and the nature of the vulnerability, and 
people will then take steps to reduce the risk, to reduce their 
premiums.
    Mr. Shays. Thank you. Well said.
    Mr. Scott, would you like to make any closing comments?
    Mr. Scott. Yes. One comment, and that is, I have been 
approached on a number of occasions that, I've seen you on TV 
on a number of occasions, you're a celebrity. It's not about 
me, as I'm sure I can speak for all others. It's about them, 
our loved one. And I want to make sure that it goes in the 
record not Abraham Scott, but the husband of Janice Marie 
Scott. Thank you.
    Mr. Shays. Thank you.
    Mrs. Ashley.
    Mrs. Ashley. I have one other issue which I just wanted to 
make a comment on. In the final report of the PDP, they talked 
about the critical infrastructure risks and vulnerability 
assessment, and this is something that I believe is very 
important that we--they say that a draft infrastructure 
protection plan was issued in November 2005, but that no 
vulnerability assessments have actually been made. This is very 
important that we get on this and make sure that we have our 
critical infrastructure assessed and protected.
    Mr. Shays. Thank you.
    Mrs. Fetchet. My last comment is to just encourage you to 
do this great work, to hold hearings, to educate the general 
public, to provide oversight, and to talk about it during the 
elections because, you know, the safety and security of our 
country really has to be a priority.
    Mr. Shays. Thank you. I close this hearing in the memory of 
Brad, Janice and Janice Marie and Peter. Thank you, all four of 
you, for being here.
    [Whereupon, at 6:36 p.m., the subcommittee was adjourned.]
    [The prepared statement of Hon. C.A. Dutch Ruppersberger 
follows:]

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